CRIMINAL PROCEDURE RULE 110
[G.R. No. 102342. July 3, 1992.] 5. ID.; ID.; ID.; ID.; INTERPRETATION IN CONSONANCE WITH ACT NO.
LUZ M. ZALDIVIA, Petitioner, v. HON. ANDRES B. REYES, JR., in his
capacity as Acting Presiding Judge of the Regional Trial Court, Fourth
Judicial Region, Branch 76, San Mateo, Rizal, and PEOPLE OF THE
PHILIPPINES, Respondents.
Hector B. Almeyda for Petitioner.
SYLLABUS
1. REMEDIAL LAW; PRESCRIPTION; 1985 RULES ON CRIMINAL
PROCEDURE; PRESCRIPTIVE PERIOD DOES NOT APPLY TO OFFENSES
SUBJECT TO SUMMARY PROCEDURE. Section 1, Rule 110 of the 1985
Rules on Criminal Procedure meaningfully begins with the phrase, "for
offenses not subject to the rule on summary procedure in special
cases," which plainly signifies that the section does not apply to
offenses which are subject to summary procedure. The phrase "in all
cases" appearing in the last paragraph obviously refers to the cases
covered by the Section, that is, those offenses not governed by the Rule
on Summary Procedure. This interpretation conforms to the canon that
words in a statute should be read in relation to and not isolation from
the rest of the measure, to discover the true legislative intent.
2. ID.; ID.; ID.; ID.; SECTION (B) REFERS TO SECTION 32(2) OF BP NO.
129. Where paragraph (b) of the section does speak of "offenses
falling under the jurisdiction of the Municipal Trial Courts and Municipal
Circuit Trial Courts," the obvious reference is to Section 32(2) of B.P. No.
129, vesting in such courts: Exclusive original jurisdiction over all
offenses punishable with imprisonment of not exceeding four years and
two months, or a fine of not more than four thousand pesos, or both
such fine and imprisonment, regardless of other imposable accessory or
other penalties, including the civil liability arising from such offenses or
predicated thereon, irrespective of kind, nature, value, or amount
thereof; Provided, however, That in offenses involving damage to
property through criminal negligence they shall have exclusive original
jurisdiction where the imposable fine does not exceed twenty thousand
pesos. These offenses are not covered by the Rule on Summary
Procedure.
3. ID.; ID.; RULE ON SUMMARY PROCEDURE; APPLIES TO VIOLATIONS
OF MUNICIPAL OR CITY ORDINANCES. As it is clearly provided in the
Rule on Summary Procedure that among the offenses it covers are
violations of municipal or city ordinances, it should follow that the
charge against the petitioner, which is for violation of a municipal
ordinance of Rodriguez, is governed by that rule and not Section 1 of
Rule 110.
4. ID.; ID.; ID.; PRESCRIPTIVE PERIOD STARTS ONLY WHEN THE CASE IS
ACTUALLY FILED IN COURT. Under Section 9 of the Rule on Summary
Procedure, "the complaint or information shall be filed directly in court
without need of a prior preliminary examination or preliminary
investigation." Both parties agree that this provision does not prevent
the prosecutor from conducting a preliminary investigation if he wants
to. However, the case shall be deemed commenced only when it is filed
in court, whether or not the prosecution decides to conduct a
preliminary investigation. This means that the running of the
prescriptive period shall be halted on the date the case is actually filed
in court and not on any date before that.
lSECTION 1. Scope. This rule shall govern the procedure in the
3326. This interpretation is in consonance with Act No. 3326 which
says that the period of prescription shall be suspended "when
proceedings are instituted against the guilty party." The proceedings
referred to in Section 2 thereof are "judicial proceedings," contrary to
the submission of the Solicitor General that they include administrative
proceedings. His contention is that we must not distinguish as the law
does not distinguish. As a matter of fact, it does.
6. ID.; ID.; ID.; SPECIAL LAW PREVAILS OVER GENERAL LAW;
PRESCRIPTION IN CRIMINAL CASES IS A SUBSTANTIVE RIGHT. The
Court feels that if there be a conflict between the Rule on Summary
Procedure and Section 1 of Rule 110 of the Rules on Criminal Procedure,
the former should prevail as the special law. And if there be a conflict
between Act No. 3326 and Rule 110 of the Rules on Criminal Procedure,
the latter must again yield because this Court, in the exercise of its rule-
making power, is not allowed to "diminish, increase or modify
substantive rights" under Article VIII, Section 5(5) of the Constitution.
Prescription in criminal cases is a substantive right.
7. ID.; ID.; CRIME PRESCRIBES IF THE PROSECUTOR DELAYS
INTENTIONALLY OR NOT THE INSTITUTION OF NECESSARY JUDICIAL
PROCEEDINGS. The Court realizes that under the above
interpretation, a crime may prescribe even if the complaint is filed
seasonably with the prosecutors office if, intentionally or not, he delays
the institution of the necessary judicial proceedings until it is too late.
However, that possibility should not justify a misreading of the
applicable rules beyond their obvious intent as reasonably deduced
from their plain language. The remedy is not a distortion of the meaning
of the rules but a rewording thereof to prevent the problem here
sought to be corrected.
DECISION
CRUZ, J.:
The Court is asked to determine the applicable law specifying the
prescriptive period for violations of municipal ordinances.
The petitioner is charged with quarrying for commercial purposes
without a mayors permit in violation of Ordinance No. 2, Series of
1988, of the Municipality of Rodriguez, in the Province of
Rizal.chanrobles.com:cralaw:red
The offense was allegedly committed on May 11, 1990. 1 The referral-
complaint of the police was received by the Office of the Provincial
Prosecutor of Rizal on May 30, 1990. 2 The corresponding information
was filed with the Municipal Trial Court of Rodriguez on October 2,
1990. 3
The petitioner moved to quash the information on the ground that the
crime had prescribed, but the motion was denied. On appeal to the
Regional Trial Court of Rizal, the denial was sustained by the responded
judge. 4
In the present petition for review on certiorari, the petitioner first
argues that the charge against her is governed by the following
provisions of the Rule on Summary Procedure:chanrob1es virtual 1aw
Metropolitan Trial Courts, the Municipal Trial Courts, and the Municipal
Circuit Trial Court in the following cases:chanrob1es virtual 1aw
lx x x
B. Criminal Cases:chanrob1es virtual 1aw library
1.Violations of traffic laws, rules and regulations;
2.Violations of rental law;
3 Violations of municipal or city ordinances;chanrobles.com.ph :
virtually
4. All other criminal cases where the penalty prescribed by law for the
offense charged does not exceed six months imprisonment, or a fine of
one thousand pesos (P1,000.00), or both, irrespective of other
impossible penalties, accessory or otherwise, or of the civil liability
arising therefrom. . . ." (Emphasis supplied.)
x x x
SECTION 9. How commenced. The prosecution of criminal cases
falling within the scope of this Rule shall be either by complaint or by
information filed directly in court without need of a prior preliminary
examination or preliminary investigation: Provided, however, That in
Metropolitan Manila and chartered cities, such cases shall be
commenced only by information; Provided, further, That when the
offense cannot be prosecuted de officio, the corresponding complaint
shall be signed and sworn to before the fiscal by the offended party.
She then invokes Act No. 3326, as amended, entitled "An Act to
Establish Periods of Prescription for Violations Penalized by Special Acts
and Municipal Ordinances and to Provide When Prescription Shall Begin
to Run," reading as follows:chanrob1es virtual 1aw library
SECTION 1. Violations penalized by special acts shall, unless otherwise
provided in such acts, prescribe in accordance with the following rules: .
. . Violations penalized by municipal ordinances shall prescribe after two
months.
SECTION 2. Prescription shall begin to run from the day of the
commission of the violation of the law, and if the same be not known at
the time, from the discovery thereof and the institution of judicial
proceedings for its investigation and punishment.
The prescription shall be interrupted when proceedings are instituted
against the guilty person, and shall begin to run again if the proceedings
are dismissed for reasons not constituting jeopardy.
SECTION 3. For the purposes of this Act, special acts shall be acts
defining and penalizing violations of law not included in the Penal
Code."
Her conclusion is that as the information was filed way beyond the two-
month statutory period from the date of the alleged commission of the
offense, the charge against her should have been dismissed on the
ground prescription.
For its part, the prosecution contends that the prescriptive period was
suspended upon the filing of the complaint against her with the Office
of the Provincial Prosecutor. Agreeing with the respondent judge, the

Solicitor General also invokes Section 1, Rule 110 of the 1985 Rules on
Criminal Procedure, providing as follows:cralawnad
SECTION 1. How Instituted. For offenses not subject to the rule on
summary procedure in special cases, the institution of criminal action
shall be as follows:chanrob1es virtual 1aw library
a) For offenses falling under the jurisdiction of the Regional Trial Court,
by filing the complaint with the appropriate officer for the purpose of
conducting the requisite preliminary investigation therein;
b) For offenses falling under the jurisdiction of the Municipal Trial
Courts and Municipal Circuit Trial Courts, by filing the complaint directly
with the said courts, or a complaint with the fiscals office. However, in
Metropolitan Manila and other chartered cities, the complaint may be
filed only with the office of the fiscal.
In all cases such institution interrupts the period of prescription of the
offense charged. (Emphasis supplied.)
Emphasis is laid on the last paragraph. The respondent maintains that
the filing of the complaint with the Officer of the Provincial Prosecutor
comes under the phrase "such institution" and that the phrase "in all
cases" applies to all cases, without distinction, including those falling
under the Rule on Summary Procedure.
The said paragraph, according to the respondent, was an adoption of
the following dictum in Francisco v. Court of Appeals: 5
In view of this diversity of precedents, and in order to provide guidance
for Bench and Bar, this Court has re-examined the question and, after
mature consideration, has arrived at the conclusion that the true
doctrine is, and should be, the one established by the decisions holding
that the filing of the complaint in the Municipal Court, even if it be
merely for purposes of preliminary examination or investigation,
should, and does, interrupt the period of prescription of the criminal
responsibility, even if the court where the complaint or information is
filed can not try the case on its merits. Several reasons buttress this
conclusion: first, the text of Article 91 of the Revised Penal Code, in
declaring that the period of prescription "shall be interrupted by the
filing of the complaint or information" without distinguishing whether
the complaint is filed in the court for preliminary examination or
investigation merely, or for action on the merits. Second, even if the
court where the complaint or information is filed may only proceed to
investigate the case, its actuations already represent the initial step of
the proceedings against the offender. Third, it is unjust to deprive the
injured party of the right to obtain vindication on account of delays that
are not under his control. All that the victim of the offense may do on
his part to initiate the prosecution is to file the requisite complaint.
CRIMINAL PROCEDURE RULE 110
plainly signifies that the section does not apply to offenses which are
subject to summary procedure. The phrase "in all cases" appearing in
the last paragraph obviously refers to the cases covered by the Section,
that is, those offenses not governed by the Rule on Summary
Procedure. This interpretation conforms to the canon that words in a
statute should be read in relation to and not isolation from the rest of
the measure, to discover the true legislative intent.chanrobles virtual
As it is clearly provided in the Rule on Summary Procedure that among
the offenses it covers are violations of municipal or city ordinances, it
should follow that the charge against the petitioner, which is for
violation of a municipal ordinance of Rodriguez, is governed by that rule
and not Section 1 of Rule 110.
Where paragraph (b) of the section does speak of "offenses falling
under the jurisdiction of the Municipal Trial Courts and Municipal Circuit
Trial Courts," the obvious reference is to Section 32 (2) of B.P. No. 129,
vesting in such courts:chanrob1es virtual 1aw library
(2) Exclusive original jurisdiction over all offenses punishable with
imprisonment of not exceeding four years and two months, or a fine of
not more than four thousand pesos, or both such fine and
imprisonment, regardless of other imposable accessory or other
penalties, including the civil liability arising from such offenses or
predicated thereon, irrespective of kind, nature, value, or amount
thereof; Provided, however, That in offenses involving damage to
property through criminal negligence they shall have exclusive original
jurisdiction where the imposable fine does not exceed twenty thousand
pesos.
These offenses are not covered by the Rules on Summary Procedure.
Under Section 9 of the Rule on Summary Procedure, "the complaint or
information shall be filed directly in court without need of a prior
preliminary examination or preliminary investigation." 6 Both parties
agree that this provision does not prevent the prosecutor from
conducting a preliminary investigation if he wants to. However, the case
shall be deemed commenced only when it is filed in court, whether or
not the prosecution decides to conduct a preliminary investigation. This
means that the running of the prescriptive period shall be halted on the
date the case is actual filed in court and not on any date before that.
This interpretation is in consonance with the afore-quoted Act No. 3326
which says that the period of prescription shall be suspended "when
proceedings are instituted against the guilty party." The proceedings
referred to in Section 2 thereof are "judicial proceedings," contrary to
the submission of the Solicitor General that they include administrative
proceedings. His contention is that we must not distinguish as the law
does not distinguish. As a matter of fact, it does.
Going back to the Francisco case, we find it not irrelevant to observe
that the decision would have been conformable to Section 1, Rule 110,
as the offense involved was grave oral defamation punishable under the
Revised Penal Code with arresto mayor in its maximum period to prision
correccional in its minimum period. By contrast, the prosecution in the
instant case is for violation of a municipal ordinance, for which the
penalty cannot exceed six months, 8 and is thus covered by the Rule on
Summary Procedure.
The Court realizes that under the above interpretation, a crime may
prescribe even if the complaint is filed seasonably with the prosecutors
office if, intentionally or not, he delays the institution of the necessary
judicial proceedings until it is too late. However, that possibility should
not justify a misreading of the applicable rules beyond their obvious
intent as reasonably deduced from their plain language. The remedy is
not a distortion of the meaning of the rules but a rewording thereof to
prevent the problem here sought to be corrected.cralawnad
Our conclusion is that the prescriptive period for the crime imputed to
the petitioner commenced from its alleged commission on May 11,
1990, and ended two months thereafter, on July 11, 1990, in
accordance with Section 1 of Act No. 3326. It was not interrupted by the
filing of the complaint with the Office of the Provincial Prosecutor on
May 30, 1990, as this was not a judicial proceeding. The judicial
proceeding that could have interrupted the period was the filing of the
information with the Municipal Trial Court of Rodriguez, but this was
done only on October 2, 1990, after the crime had already prescribed.
WHEREFORE, the petition is GRANTED, and the challenged Order dated
October 2, 1991 is SET ASIDE. Criminal Case No. 90-089 in the Municipal
Trial Court of Rodriguez, Rizal, is hereby DISMISSED on the ground of
prescription. It is so ordered.

It is important to note that this decision was promulgated on May 30, At any rate, the Court feels that if there be a conflict between the Rule
1983, two months before the promulgation of the Rule on Summary on Summary Procedure and Section 1 of Rule 110 of the Rules on
Procedure on August 1, 1983. On the other hand, Section 1 of Rule 110 Criminal Procedure, the former should prevail as the special law. And if
is new, having been incorporated therein with the revision of the Rules there be a conflict between Act No. 3326 and Rule 110 of the Rules on
on Criminal Procedure on January 1, 1985, except for the last Criminal Procedure, the latter must again yield because this Court, in
paragraph, which was added on October 1, 1988. the exercise of its rule-making power, is not allowed to "diminish,
That section meaningfully begins with the phrase, "for offenses not increase or modify substantive rights" under Article VIII, Section 5 (5) of
subject to the rule on summary procedure in special cases," which the Constitution Prescription in criminal cases is a substantive right. 7

EN BANC
SECURITIES AND EXCHANGE COMMISSION,
Petitioner,
- versus -
INTERPORT RESOURCES CORPORATION, MANUEL S. RECTO, RENE S.
VILLARICA, PELAGIO RICALDE, ANTONIO REINA, FRANCISCO
ANONUEVO, JOSEPH SY and SANTIAGO TANCHAN, JR.,
Respondents.
G.R. No. 135808
Promulgated:
October 6, 2008
x-------------------------------------------------x
DECISION
CHICO-NAZARIO, J.:
This is a Petition for Review on Certiorari under Rule 45 of the Rules of
Court, assailing the Decision,[1] dated 20 August 1998, rendered by the
Court of Appeals in C.A.-G.R. SP No. 37036, enjoining petitioner
Securities and Exchange Commission (SEC) from taking cognizance of or
initiating any action against the respondent corporation Interport
Resources Corporation (IRC) and members of its board of directors,
respondents Manuel S. Recto, Rene S. Villarica, Pelagio Ricalde, Antonio
Reina, Francisco Anonuevo, Joseph Sy and Santiago Tanchan, Jr., with
respect to Sections 8, 30 and 36 of the Revised Securities Act. In the
same Decision of the appellate court, all the proceedings taken against
the respondents, including the assailed SEC Omnibus Orders of 25
January 1995 and 30 March 1995, were declared void.
The antecedent facts of the present case are as follows.
On 6 August 1994, the Board of Directors of IRC approved a
Memorandum of Agreement with Ganda Holdings Berhad (GHB). Under
the Memorandum of Agreement, IRC acquired 100% or the entire
capital stock of Ganda Energy Holdings, Inc. (GEHI),[2] which would own
and operate a 102 megawatt (MW) gas turbine power-generating
barge. The agreement also stipulates that GEHI would assume a five-
year power purchase contract with National Power Corporation. At that
time, GEHIs power-generating barge was 97% complete and would go
on-line by mid-September of 1994. In exchange, IRC will issue to GHB
55% of the expanded capital stock of IRC amounting to 40.88 billion
shares which had a total par value of P488.44 million.[3]
On the side, IRC would acquire 67% of the entire capital stock of
Philippine Racing Club, Inc. (PRCI). PRCI owns 25.724 hectares of real
estate property in Makati. Under the Agreement, GHB, a member of the
Westmont Group of Companies in Malaysia, shall extend or arrange a
loan required to pay for the proposed acquisition by IRC of PRCI.[4]
IRC alleged that on 8 August 1994, a press release announcing the
approval of the agreement was sent through facsimile transmission to
the Philippine Stock Exchange and the SEC, but that the facsimile
machine of the SEC could not receive it. Upon the advice of the SEC, the
IRC sent the press release on the morning of 9 August 1994.[5]
CRIMINAL PROCEDURE RULE 110
The SEC averred that it received reports that IRC failed to make timely
public disclosures of its negotiations with GHB and that some of its
directors, respondents herein, heavily traded IRC shares utilizing this
material insider information. On 16 August 1994, the SEC Chairman
issued a directive requiring IRC to submit to the SEC a copy of its
aforesaid Memorandum of Agreement with GHB. The SEC Chairman
further directed all principal officers of IRC to appear at a hearing
before the Brokers and Exchanges Department (BED) of the SEC to
explain IRCs failure to immediately disclose the information as required
by the Rules on Disclosure of Material Facts.[6]
In compliance with the SEC Chairmans directive, the IRC sent a letter
dated 16 August 1994 to the SEC, attaching thereto copies of the
Memorandum of Agreement. Its directors, Manuel Recto, Rene Villarica
and Pelagio Ricalde, also appeared before the SEC on 22 August 1994 to
explain IRCs alleged failure to immediately disclose material information
as required under the Rules on Disclosure of Material Facts.[7]
On 19 September 1994, the SEC Chairman issued an Order finding that
IRC violated the Rules on Disclosure of Material Facts, in connection
with the Old Securities Act of 1936, when it failed to make timely
disclosure of its negotiations with GHB. In addition, the SEC pronounced
that some of the officers and directors of IRC entered into transactions
involving IRC shares in violation of Section 30, in relation to Section 36,
of the Revised Securities Act.[8]
Respondents filed an Omnibus Motion, dated 21 September 1994,
which was superseded by an Amended Omnibus Motion, filed on 18
October 1994, alleging that the SEC had no authority to investigate the
subject matter, since under Section 8 of Presidential Decree No. 902-
A,[9] as amended by Presidential Decree No. 1758, jurisdiction was
conferred upon the Prosecution and Enforcement Department (PED) of
the SEC. Respondents also claimed that the SEC violated their right to
due process when it ordered that the respondents appear before the
SEC and show cause why no administrative, civil or criminal sanctions
should be imposed on them, and, thus, shifted the burden of proof to
the respondents. Lastly, they sought to have their cases tried jointly
given the identical factual situations surrounding the alleged violation
committed by the respondents.[10]
Respondents also filed a Motion for Continuance of Proceedings on 24
October 1994, wherein they moved for discontinuance of the
investigations and the proceedings before the SEC until the undue
publicity had abated and the investigating officials had become
reasonably free from prejudice and public pressure.[11]
No formal hearings were conducted in connection with the
aforementioned motions, but on 25 January 1995, the SEC issued an
Omnibus Order which thus disposed of the same in this wise:[12]
WHEREFORE, premised on the foregoing considerations, the
Commission resolves and hereby rules:
1. To create a special investigating panel to hear and decide the instant
case in accordance with the Rules of Practice and Procedure Before the
Prosecution and Enforcement Department (PED), Securities and
Exchange Commission, to be composed of Attys. James K. Abugan,
Medardo Devera (Prosecution and Enforcement Department), and Jose
Aquino (Brokers and Exchanges Department), which is hereby directed
to expeditiously resolve the case by conducting continuous hearings, if
possible.
2. To recall the show cause orders dated September 19, 1994 requiring
the respondents to appear and show cause why no administrative, civil
or criminal sanctions should be imposed on them.
3. To deny the Motion for Continuance for lack of merit.
Respondents filed an Omnibus Motion for Partial Reconsideration,[13]
questioning the creation of the special investigating panel to hear the
case and the denial of the Motion for Continuance. The SEC denied
reconsideration in its Omnibus Order dated 30 March 1995.[14]
The respondents filed a petition before the Court of Appeals docketed
as C.A.-G.R. SP No. 37036, questioning the Omnibus Orders dated 25
January 1995 and 30 March 1995.[15] During the proceedings before
the Court of Appeals, respondents filed a Supplemental Motion[16]
dated 16 May 1995, wherein they prayed for the issuance of a writ of
preliminary injunction enjoining the SEC and its agents from
investigating and proceeding with the hearing of the case against
respondents herein. On 5 May 1995, the Court of Appeals granted their
motion and issued a writ of preliminary injunction, which effectively
enjoined the SEC from filing any criminal, civil or administrative case
against the respondents herein.[17]
On 23 October 1995, the SEC filed a Motion for Leave to Quash SEC
Omnibus Orders so that the case may be investigated by the PED in
accordance with the SEC Rules and Presidential Decree No. 902-A, and
not by the special body whose creation the SEC had earlier ordered.[18]
The Court of Appeals promulgated a Decision[19] on 20 August 1998. It
determined that there were no implementing rules and regulations
regarding disclosure, insider trading, or any of the provisions of the
Revised Securities Acts which the respondents allegedly violated. The
Court of Appeals likewise noted that it found no statutory authority for
the SEC to initiate and file any suit for civil liability under Sections 8, 30
and 36 of the Revised Securities Act. Thus, it ruled that no civil, criminal
or administrative proceedings may possibly be held against the
respondents without violating their rights to due process and equal
protection. It further resolved that absent any implementing rules, the
SEC cannot be allowed to quash the assailed Omnibus Orders for the
sole purpose of re-filing the same case against the respondents.[20]
The Court of Appeals further decided that the Rules of Practice and
Procedure Before the PED, which took effect on 14 April 1990, did not
comply with the statutory requirements contained in the Administrative
Code of 1997. Section 8, Rule V of the Rules of Practice and Procedure
Before the PED affords a party the right to be present but without the
right to cross-examine witnesses presented against him, in violation of
Section 12(3), Chapter 3, Book VII of the Administrative Code. [21]
In the dispositive portion of its Decision, dated 20 August 1998, the
Court of Appeals ruled that[22]:
WHEREFORE, [herein petitioner SECs] Motion for Leave to Quash SEC
Omnibus Orders is hereby DENIED. The petition for certiorari,
prohibition and mandamus is GRANTED. Consequently, all proceedings
taken against [herein respondents] in this case, including the Omnibus

Orders of January 25, 1995 and March 30, 1995 are declared null and
void. The writ of preliminary injunction is hereby made permanent and,
accordingly, [SEC] is hereby prohibited from taking cognizance or
initiating any action, be they civil, criminal, or administrative against
[respondents] with respect to Sections 8 (Procedure for Registration),
30 (Insiders duty to disclose when trading) and 36 (Directors, Officers
and Principal Stockholders) in relation to Sections 46 (Administrative
sanctions) 56 (Penalties) 44 (Liabilities of Controlling persons) and 45
(Investigations, injunctions and prosecution of offenses) of the Revised
Securities Act and Section 144 (Violations of the Code) of the
Corporation Code. (Emphasis provided.)
The SEC filed a Motion for Reconsideration, which the Court of Appeals
denied in a Resolution[23] issued on 30 September 1998.
Hence, the present petition, which relies on the following grounds[24]:
I absence of implementing rules cannot effectively invalidate provisions
THE COURT OF APPEALS ERRED WHEN IT DENIED PETITIONERS MOTION
FOR LEAVE TO QUASH THE ASSAILED SEC OMNIBUS ORDERS DATED
JANUARY 25 AND MARCH 30, 1995.
II
THE COURT OF APPEALS ERRED WHEN IT RULED THAT THERE IS NO
STATUTORY AUTHORITY WHATSOEVER FOR PETITIONER SEC TO
INITIATE AND FILE ANY SUIT BE THEY CIVIL, CRIMINAL OR
ADMINISTRATIVE AGAINST RESPONDENT CORPORATION AND ITS
DIRECTORS WITH RESPECT TO SECTION 30 (INSIDERS DUTY TO
DISCOLSED [sic] WHEN TRADING) AND 36 (DIRECTORS OFFICERS AND
PRINCIPAL STOCKHOLDERS) OF THE REVISED SECURITIES ACT; AND
III
THE COURT OF APPEALS ERRED WHEN IT RULED THAT RULES OF
PRACTICE AND PROSECUTION BEFORE THE PED AND THE SICD RULES OF
PROCEDURE ON ADMINISTRATIVE ACTIONS/PROCEEDINGS[25] ARE
INVALID AS THEY FAIL TO COMPLY WITH THE STATUTORY
REQUIREMENTS CONTAINED IN THE ADMINISTRATIVE CODE OF 1987.
The petition is impressed with merit.
Before discussing the merits of this case, it should be noted that while
this case was pending in this Court, Republic Act No. 8799, otherwise
known as the Securities Regulation Code, took effect on 8 August 2000.
Section 8 of Presidential Decree No. 902-A, as amended, which created
the PED, was already repealed as provided for in Section 76 of the
Securities Regulation Code:
SEC. 76. Repealing Clause. The Revised Securities Act (Batas Pambansa
Blg. 178), as amended, in its entirety, and Sections 2, 4 and 8 of
Presidential Decree 902-A, as amended, are hereby repealed. All other
laws, orders, rules and regulations, or parts thereof, inconsistent with
any provision of this Code are hereby repealed or modified accordingly.
Thus, under the new law, the PED has been abolished, and the
Securities Regulation Code has taken the place of the Revised Securities
Act.
CRIMINAL PROCEDURE RULE 110
The Court now proceeds with a discussion of the present case.
I. Sctions 8, 30 and 36 of the Revised Securities Act do not require the
enactment of implementing rules to make them binding and effective.
The Court of Appeals ruled that absent any implementing rules for
Sections 8, 30 and 36 of the Revised Securities Act, no civil, criminal or
administrative actions can possibly be had against the respondents
without violating their right to due process and equal protection, citing
as its basis the case Yick Wo v. Hopkins.[26] This is untenable.
In the absence of any constitutional or statutory infirmity, which may
concern Sections 30 and 36 of the Revised Securities Act, this Court
upholds these provisions as legal and binding. It is well settled that
every law has in its favor the presumption of validity. Unless and until a
specific provision of the law is declared invalid and unconstitutional, the
same is valid and binding for all intents and purposes.[27] The mere
of law, where a reasonable construction that will support the law may
be given. In People v. Rosenthal,[28] this Court ruled that:
In this connection we cannot pretermit reference to the rule that
legislation should not be held invalid on the ground of uncertainty if
susceptible of any reasonable construction that will support and give it
effect. An Act will not be declared inoperative and ineffectual on the
ground that it furnishes no adequate means to secure the purpose for
which it is passed, if men of common sense and reason can devise and
provide the means, and all the instrumentalities necessary for its
execution are within the reach of those intrusted therewith. (25 R.C.L.,
pp. 810, 811)
In Garcia v. Executive Secretary,[29] the Court underlined the
importance of the presumption of validity of laws and the careful
consideration with which the judiciary strikes down as invalid acts of the
legislature:
The policy of the courts is to avoid ruling on constitutional questions
and to presume that the acts of the political departments are valid in
the absence of a clear and unmistakable showing to the contrary. To
doubt is to sustain. This presumption is based on the doctrine of
separation of powers which enjoins upon each department a becoming
respect for the acts of the other departments. The theory is that as the
joint act of Congress and the President of the Philippines, a law has
been carefully studied and determined to be in accordance with the
fundamental law before it was finally enacted.
The necessity for vesting administrative authorities with power to make
rules and regulations is based on the impracticability of lawmakers
providing general regulations for various and varying details of
management.[30] To rule that the absence of implementing rules can
render ineffective an act of Congress, such as the Revised Securities Act,
would empower the administrative bodies to defeat the legislative will
by delaying the implementing rules. To assert that a law is less than a
law, because it is made to depend on a future event or act, is to rob the
Legislature of the power to act wisely for the public welfare whenever a
law is passed relating to a state of affairs not yet developed, or to things
future and impossible to fully know.[31] It is well established that
administrative authorities have the power to promulgate rules and
regulations to implement a given statute and to effectuate its policies,
provided such rules and regulations conform to the terms and
standards prescribed by the statute as well as purport to carry into
effect its general policies. Nevertheless, it is undisputable that the rules
and regulations cannot assert for themselves a more extensive
prerogative or deviate from the mandate of the statute.[32] Moreover,
where the statute contains sufficient standards and an unmistakable
intent, as in the case of Sections 30 and 36 of the Revised Securities Act,
there should be no impediment to its implementation.
The reliance placed by the Court of Appeals in Yick Wo v. Hopkins[33]
shows a glaring error. In the cited case, this Court found
unconstitutional an ordinance which gave the board of supervisors
authority to refuse permission to carry on laundries located in buildings
that were not made of brick and stone, because it violated the equal
protection clause and was highly discriminatory and hostile to Chinese
residents and not because the standards provided therein were vague
or ambiguous.
This Court does not discern any vagueness or ambiguity in Sections 30
and 36 of the Revised Securities Act, such that the acts proscribed
and/or required would not be understood by a person of ordinary
intelligence.
Section 30 of the Revised Securities Act
Section 30 of the Revised Securities Act reads:
Sec. 30. Insiders duty to disclose when trading. (a) It shall be unlawful
for an insider to sell or buy a security of the issuer, if he knows a fact of
special significance with respect to the issuer or the security that is not
generally available, unless (1) the insider proves that the fact is
generally available or (2) if the other party to the transaction (or his
agent) is identified, (a) the insider proves that the other party knows it,
or (b) that other party in fact knows it from the insider or otherwise.
(b) Insider means (1) the issuer, (2) a director or officer of, or a person
controlling, controlled by, or under common control with, the issuer, (3)
a person whose relationship or former relationship to the issuer gives or
gave him access to a fact of special significance about the issuer or the
security that is not generally available, or (4) a person who learns such a
fact from any of the foregoing insiders as defined in this subsection,
with knowledge that the person from whom he learns the fact is such
an insider.
(c) A fact is of special significance if (a) in addition to being material it
would be likely, on being made generally available, to affect the market
price of a security to a significant extent, or (b) a reasonable person
would consider it especially important under the circumstances in
determining his course of action in the light of such factors as the
degree of its specificity, the extent of its difference from information
generally available previously, and its nature and reliability.
(d) This section shall apply to an insider as defined in subsection (b) (3)
hereof only to the extent that he knows of a fact of special significance
by virtue of his being an insider.

The provision explains in simple terms that the insider's misuse of
nonpublic and undisclosed information is the gravamen of illegal
conduct. The intent of the law is the protection of investors against
fraud, committed when an insider, using secret information, takes
advantage of an uninformed investor. Insiders are obligated to disclose
material information to the other party or abstain from trading the
shares of his corporation. This duty to disclose or abstain is based on
two factors: first, the existence of a relationship giving access, directly
or indirectly, to information intended to be available only for a
corporate purpose and not for the personal benefit of anyone; and
second, the inherent unfairness involved when a party takes advantage
of such information knowing it is unavailable to those with whom he is
dealing.[34]
In the United States (U.S.), the obligation to disclose or abstain has been
traditionally imposed on corporate insiders, particularly officers,
directors, or controlling stockholders, but that definition has since been
expanded.[35] The term insiders now includes persons whose
relationship or former relationship to the issuer gives or gave them
access to a fact of special significance about the issuer or the security
that is not generally available, and one who learns such a fact from an
insider knowing that the person from whom he learns the fact is such
an insider. Insiders have the duty to disclose material facts which are
known to them by virtue of their position but which are not known to
persons with whom they deal and which, if known, would affect their
investment judgment. In some cases, however, there may be valid
corporate reasons for the nondisclosure of material information. Where
such reasons exist, an issuers decision not to make any public
disclosures is not ordinarily considered as a violation of insider trading.
At the same time, the undisclosed information should not be
improperly used for non-corporate purposes, particularly to
disadvantage other persons with whom an insider might transact, and
therefore the insider must abstain from entering into transactions
involving such securities.[36]
Respondents further aver that under Section 30 of the Revised
Securities Act, the SEC still needed to define the following terms:
material fact, reasonable person, nature and reliability and generally
available. [37] In determining whether or not these terms are vague,
these terms must be evaluated in the context of Section 30 of the
Revised Securties Act. To fully understand how the terms were used in
the aforementioned provision, a discussion of what the law recognizes
as a fact of special significance is required, since the duty to disclose
such fact or to abstain from any transaction is imposed on the insider
only in connection with a fact of special significance.
Under the law, what is required to be disclosed is a fact of special
significance which may be (a) a material fact which would be likely, on
being made generally available, to affect the market price of a security
to a significant extent, or (b) one which a reasonable person would
consider especially important in determining his course of action with
regard to the shares of stock.
(a) Material Fact The concept of a material fact is not a new one. As
early as 1973, the Rules Requiring Disclosure of Material Facts by
Corporations Whose Securities Are Listed In Any Stock Exchange or
Registered/Licensed Under the Securities Act, issued by the SEC on 29
January 1973, explained that [a] fact is material if it induces or tends to
CRIMINAL PROCEDURE RULE 110
induce or otherwise affect the sale or purchase of its securities. Thus,
Section 30 of the Revised Securities Act provides that if a fact affects the
sale or purchase of securities, as well as its price, then the insider would
be required to disclose such information to the other party to the
transaction involving the securities. This is the first definition given to a
fact of special significance.
(b.1) Reasonable Person The second definition given to a fact of special
significance involves the judgment of a reasonable person. Contrary to
the allegations of the respondents, a reasonable person is not a
problematic legal concept that needs to be clarified for the purpose of
giving effect to a statute; rather, it is the standard on which most of our
legal doctrines stand. The doctrine on negligence uses the discretion of
the reasonable man as the standard.[38] A purchaser in good faith must
also take into account facts which put a reasonable man on his
guard.[39] In addition, it is the belief of the reasonable and prudent
man that an offense was committed that sets the criteria for probable
cause for a warrant of arrest.[40] This Court, in such cases,
differentiated the reasonable and prudent man from a person with
training in the law such as a prosecutor or a judge, and identified him as
the average man on the street, who weighs facts and circumstances
without resorting to the calibrations of our technical rules of evidence
of which his knowledge is nil. Rather, he relies on the calculus of
common sense of which all reasonable men have in abundance.[41] In
the same vein, the U.S. Supreme Court similarly determined its
standards by the actual significance in the deliberations of a reasonable
investor, when it ruled in TSC Industries, Inc. v. Northway, Inc.,[42] that
the determination of materiality requires delicate assessments of the
inferences a reasonable shareholder would draw from a given set of
facts and the significance of those inferences to him.
(b.2) Nature and Reliability The factors affecting the second definition of
a fact of special significance, which is of such importance that it is
expected to affect the judgment of a reasonable man, were
substantially lifted from a test of materiality pronounced in the case In
the Matter of Investors Management Co., Inc.[43]:
Among the factors to be considered in determining whether
information is material under this test are the degree of its specificity,
the extent to which it differs from information previously publicly
disseminated, and its reliability in light of its nature and source and the
circumstances under which it was received.
It can be deduced from the foregoing that the nature and reliability of a
significant fact in determining the course of action a reasonable person
takes regarding securities must be clearly viewed in connection with the
particular circumstances of a case. To enumerate all circumstances that
would render the nature and reliability of a fact to be of special
significance is close to impossible. Nevertheless, the proper adjudicative
body would undoubtedly be able to determine if facts of a certain
nature and reliability can influence a reasonable persons decision to
retain, sell or buy securities, and thereafter explain and justify its factual
findings in its decision.
(c) Materiality Concept A discussion of the materiality concept would be
relevant to both a material fact which would affect the market price of a
security to a significant extent and/or a fact which a reasonable person
would consider in determining his or her cause of action with regard to
the shares of stock. Significantly, what is referred to in our laws as a fact
of special significance is referred to in the U.S. as the materiality
concept and the latter is similarly not provided with a precise definition.
In Basic v. Levinson,[44] the U.S. Supreme Court cautioned against
confining materiality to a rigid formula, stating thus:
A bright-line rule indeed is easier to follow than a standard that requires
the exercise of judgment in the light of all the circumstances. But ease
of application alone is not an excuse for ignoring the purposes of the
Securities Act and Congress policy decisions. Any approach that
designates a single fact or occurrence as always determinative of an
inherently fact-specific finding such as materiality, must necessarily be
overinclusive or underinclusive.
Moreover, materiality will depend at any given time upon a balancing of
both the indicated probability that the event will occur and the
anticipated magnitude of the event in light of the totality of the
company activity.[45] In drafting the Securities Act of 1934, the U.S.
Congress put emphasis on the limitations to the definition of
materiality:
Although the Committee believes that ideally it would be desirable to
have absolute certainty in the application of the materiality concept, it
is its view that such a goal is illusory and unrealistic. The materiality
concept is judgmental in nature and it is not possible to translate this
into a numerical formula. The Committee's advice to the [SEC] is to
avoid this quest for certainty and to continue consideration of
materiality on a case-by-case basis as disclosure problems are
identified. House Committee on Interstate and Foreign Commerce,
Report of the Advisory Committee on Corporate Disclosure to the
Securities and Exchange Commission, 95th Cong., 1st Sess., 327
(Comm.Print 1977). (Emphasis provided.)[46]
(d) Generally Available Section 30 of the Revised Securities Act allows
the insider the defense that in a transaction of securities, where the
insider is in possession of facts of special significance, such information
is generally available to the public. Whether information found in a
newspaper, a specialized magazine, or any cyberspace media be
sufficient for the term generally available is a matter which may be
adjudged given the particular circumstances of the case. The standards
cannot remain at a standstill. A medium, which is widely used today
was, at some previous point in time, inaccessible to most. Furthermore,
it would be difficult to approximate how the rules may be applied to the
instant case, where investigation has not even been started.
Respondents failed to allege that the negotiations of their agreement
with GHB were made known to the public through any form of media
for there to be a proper appreciation of the issue presented.
Section 36(a) of the Revised Securities Act
As regards Section 36(a) of the Revised Securities Act, respondents
claim that the term beneficial ownership is vague and that it requires
implementing rules to give effect to the law. Section 36(a) of the
Revised Securities Act is a straightforward provision that imposes upon
(1) a beneficial owner of more than ten percent of any class of any
equity security or (2) a director or any officer of the issuer of such
security, the obligation to submit a statement indicating his or her
ownership of the issuers securities and such changes in his or her
ownership thereof. The said provision reads:

Sec. 36. Directors, officers and principal stockholders. (a) Every person
who is directly or indirectly the beneficial owner of more than ten per
centum of any [class] of any equity security which is registered pursuant
to this Act, or who is [a] director or an officer of the issuer of such
security, shall file, at the time of the registration of such security on a
securities exchange or by the effective date of a registration statement
or within ten days after he becomes such a beneficial owner, director or
officer, a statement with the Commission and, if such security is
registered on a securities exchange, also with the exchange, of the
amount of all equity securities of such issuer of which he is the
beneficial owner, and within ten days after the close of each calendar
month thereafter, if there has been a change in such ownership during
such month, shall file with the Commission, and if such security is
registered on a securities exchange, shall also file with the exchange, a
statement indicating his ownership at the close of the calendar month
and such changes in his ownership as have occurred during such
calendar month. (Emphasis provided.)
Section 36(a) refers to the beneficial owner. Beneficial owner has been
defined in the following manner:
[F]irst, to indicate the interest of a beneficiary in trust property (also
called equitable ownership); and second, to refer to the power of a
corporate shareholder to buy or sell the shares, though the shareholder
is not registered in the corporations books as the owner. Usually,
beneficial ownership is distinguished from naked ownership, which is
the enjoyment of all the benefits and privileges of ownership, as against
possession of the bare title to property.[47]
Even assuming that the term beneficial ownership was vague, it would
not affect respondents case, where the respondents are directors
and/or officers of the corporation, who are specifically required to
comply with the reportorial requirements under Section 36(a) of the
Revised Securities Act. The validity of a statute may be contested only
by one who will sustain a direct injury as a result of its enforcement.[48]
Sections 30 and 36 of the Revised Securities Act were enacted to
promote full disclosure in the securities market and prevent
unscrupulous individuals, who by their positions obtain non-public
information, from taking advantage of an uninformed public. No
individual would invest in a market which can be manipulated by a
limited number of corporate insiders. Such reaction would stifle, if not
stunt, the growth of the securities market. To avert the occurrence of
such an event, Section 30 of the Revised Securities Act prevented the
unfair use of non-public information in securities transactions, while
Section 36 allowed the SEC to monitor the transactions entered into by
corporate officers and directors as regards the securities of their
companies.
In the case In the Matter of Investors Management Co.,[49] it was
cautioned that the broad language of the anti-fraud provisions, which
include the provisions on insider trading, should not be circumscribed
by fine distinctions and rigid classifications. The ambit of anti-fraud
provisions is necessarily broad so as to embrace the infinite variety of
deceptive conduct.[50]
In Tatad v. Secretary of Department of Energy,[51] this Court brushed
aside a contention, similar to that made by the respondents in this case,
CRIMINAL PROCEDURE RULE 110
that certain words or phrases used in a statute do not set determinate
standards, declaring that:
Petitioners contend that the words as far as practicable, declining and
stable should have been defined in R.A. No. 8180 as they do not set
determinate and determinable standards. This stubborn submission
deserves scant consideration. The dictionary meanings of these words
are well settled and cannot confuse men of reasonable intelligence. x x
x. The fear of petitioners that these words will result in the exercise of
executive discretion that will run riot is thus groundless. To be sure, the
Court has sustained the validity of similar, if not more general standards
in other cases.
Among the words or phrases that this Court upheld as valid standards
were simplicity and dignity,[52] public interest,[53] and interests of law
and order.[54]
The Revised Securities Act was approved on 23 February 1982. The fact
that the Full Disclosure Rules were promulgated by the SEC only on 24
July 1996 does not render ineffective in the meantime Section 36 of the
Revised Securities Act. It is already unequivocal that the Revised
Securities Act requires full disclosure and the Full Disclosure Rules were
issued to make the enforcement of the law more consistent, efficient
and effective. It is equally reasonable to state that the disclosure forms
later provided by the SEC, do not, in any way imply that no compliance
was required before the forms were provided. The effectivity of a
statute which imposes reportorial requirements cannot be suspended
by the issuance of specified forms, especially where compliance
therewith may be made even without such forms. The forms merely
made more efficient the processing of requirements already identified
by the statute.
For the same reason, the Court of Appeals made an evident mistake
when it ruled that no civil, criminal or administrative actions can
possibly be had against the respondents in connection with Sections 8,
30 and 36 of the Revised Securities Act due to the absence of
implementing rules. These provisions are sufficiently clear and complete
by themselves. Their requirements are specifically set out, and the acts
which are enjoined are determinable. In particular, Section 8[55] of the
Revised Securities Act is a straightforward enumeration of the
procedure for the registration of securities and the particular matters
which need to be reported in the registration statement thereof. The
Decision, dated 20 August 1998, provides no valid reason to exempt the
respondent IRC from such requirements. The lack of implementing rules
cannot suspend the effectivity of these provisions. Thus, this Court
cannot find any cogent reason to prevent the SEC from exercising its
authority to investigate respondents for violation of Section 8 of the
Revised Securities Act.
II. The right to cross-examination is not absolute and cannot be
demanded during investigative proceedings before the PED.
In its assailed Decision dated 20 August 1998, the Court of Appeals
pronounced that the PED Rules of Practice and Procedure was invalid
since Section 8, Rule V[56] thereof failed to provide for the parties right
to cross-examination, in violation of the Administrative Code of 1987
particularly Section 12(3), Chapter 3, Book VII thereof. This ruling is
incorrect.
Firstly, Section 4, Rule I of the PED Rules of Practice and Procedure,
categorically stated that the proceedings before the PED are summary
in nature:
Section 4. Nature of Proceedings Subject to the requirements of due
process, proceedings before the PED shall be summary in nature not
necessarily adhering to or following the technical rules of evidence
obtaining in the courts of law. The Rules of Court may apply in said
proceedings in suppletory character whenever practicable.
Rule V of the PED Rules of Practice and Procedure further specified that:
Section 5. Submission of Documents During the preliminary
conference/hearing, or immediately thereafter, the Hearing Officer may
require the parties to simultaneously submit their respective verified
position papers accompanied by all supporting documents and the
affidavits of their witnesses, if any which shall take the place of their
direct testimony. The parties shall furnish each other with copies of the
position papers together with the supporting affidavits and documents
submitted by them.
Section 6. Determination of necessity of hearing. Immediately after the
submission by the parties of their position papers and supporting
documents, the Hearing Officer shall determine whether there is a need
for a formal hearing. At this stage, he may, in his discretion, and for the
purpose of making such determination, elicit pertinent facts or
information, including documentary evidence, if any, from any party or
witness to complete, as far as possible, the facts of the case. Facts or
information so elicited may serve as basis for his clarification or
simplifications of the issues in the case. Admissions and stipulation of
facts to abbreviate the proceedings shall be encouraged.
Section 7. Disposition of Case. If the Hearing Officer finds no necessity
of further hearing after the parties have submitted their position papers
and supporting documents, he shall so inform the parties stating the
reasons therefor and shall ask them to acknowledge the fact that they
were so informed by signing the minutes of the hearing and the case
shall be deemed submitted for resolution.
As such, the PED Rules provided that the Hearing Officer may require
the parties to submit their respective verified position papers, together
with all supporting documents and affidavits of witnesses. A formal
hearing was not mandatory; it was within the discretion of the Hearing
Officer to determine whether there was a need for a formal hearing.
Since, according to the foregoing rules, the holding of a hearing before
the PED is discretionary, then the right to cross-examination could not
have been demanded by either party.
Secondly, it must be pointed out that Chapter 3, Book VII of the
Administrative Code, entitled Adjudication, does not affect the
investigatory functions of the agencies. The law creating the PED,
Section 8 of Presidential Decree No. 902-A, as amended, defines the
authority granted to the PED, thus:
SEC. 8. The Prosecution and Enforcement Department shall have,
subject to the Commissions control and supervision, the exclusive
authority to investigate, on complaint or motu proprio, any act or

omission of the Board of Directors/Trustees of corporations, or of
partnerships, or of other associations, or of their stockholders, officers
or partners, including any fraudulent devices, schemes or
representations, in violation of any law or rules and regulations
administered and enforced by the Commission; to file and prosecute in
accordance with law and rules and regulations issued by the
Commission and in appropriate cases, the corresponding criminal or
civil case before the Commission or the proper court or body upon
prima facie finding of violation of any laws or rules and regulations
administered and enforced by the Commission; and to perform such
other powers and functions as may be provided by law or duly
delegated to it by the Commission. (Emphasis provided.)
The law creating PED empowers it to investigate violations of the rules
and regulations promulgated by the SEC and to file and prosecute such
cases. It fails to mention any adjudicatory functions insofar as the PED is
concerned. Thus, the PED Rules of Practice and Procedure need not
comply with the provisions of the Administrative Code on adjudication,
particularly Section 12(3), Chapter 3, Book VII.
In Cario v. Commission on Human Rights,[57] this Court sets out the
distinction between investigative and adjudicative functions, thus:
Investigate, commonly understood, means to examine, explore, inquire
or delve or probe into, research on, study. The dictionary definition of
investigate is to observe or study closely; inquire into systematically: to
search or inquire into xx to subject to an official probe xx: to conduct an
official inquiry. The purpose of an investigation, of course is to discover,
to find out, to learn, obtain information. Nowhere included or intimated
is the notion of settling, deciding or resolving a controversy involved in
the facts inquired into by application of the law to the facts established
by the inquiry.
The legal meaning of investigate is essentially the same: (t)o follow up
step by step by patient inquiry or observation. To trace or track; to
search into; to examine and inquire into with care and accuracy; to find
out by careful inquisition; examination; the taking of evidence; a legal
inquiry; to inquire; to make an investigation, investigation being in turn
described as (a)n administrative function, the exercise of which
ordinarily does not require a hearing. 2 Am J2d Adm L Sec. 257; xx an
inquiry, judicial or otherwise, for the discovery and collection of facts
concerning a certain matter or matters.
Adjudicate, commonly or popularly understood, means to adjudge,
arbitrate, judge, decide, determine, resolve, rule on, settle. The
dictionary defines the term as to settle finally (the rights and duties of
parties to a court case) on the merits of issues raised: xx to pass
judgment on: settle judicially: xx act as judge. And adjudge means to
decide or rule upon as a judge or with judicial or quasi-judicial powers:
xx to award or grant judicially in a case of controversy x x x.
In a legal sense, adjudicate means: To settle in the exercise of judicial
authority. To determine finally. Synonymous with adjudge in its strictest
sense; and adjudge means: To pass on judicially, to decide, settle, or
decree, or to sentence or condemn. x x x Implies a judicial
determination of a fact, and the entry of a judgment.
CRIMINAL PROCEDURE RULE 110
There is no merit to the respondents averment that the sections under
Chapter 3, Book VII of the Administrative Code, do not distinguish
between investigative and adjudicatory functions. Chapter 3, Book VII of
the Administrative Code, is unequivocally entitled Adjudication.
Respondents insist that the PED performs adjudicative functions, as
enumerated under Section 1(h) and (j), Rule II; and Section 2(4), Rule VII
of the PED Rules of Practice and Procedure:
Section 1. Authority of the Prosecution and Enforcement Department
Pursuant to Presidential Decree No. 902-A, as amended by Presidential
Decree No. 1758, the Prosecution and Enforcement Department is
primarily charged with the following:
xxxx
(h) Suspends or revokes, after proper notice and hearing in accordance
with these Rules, the franchise or certificate of registration of
corporations, partnerships or associations, upon any of the following
grounds:
1. Fraud in procuring its certificate of registration;
2. Serious misrepresentation as to what the corporation can do or is
doing to the great prejudice of or damage to the general public;
3. Refusal to comply or defiance of any lawful order of the Commission
restraining commission of acts which would amount to a grave violation
of its franchise;
xxxx
(j) Imposes charges, fines and fees, which by law, it is authorized to
collect;
xxxx
Section 2. Powers of the Hearing Officer. The Hearing Officer shall have
the following powers:
xxxx
4. To cite and/or declare any person in direct or indirect contempt in
accordance with pertinent provisions of the Rules of Court.
Even assuming that these are adjudicative functions, the PED, in the
instant case, exercised its investigative powers; thus, respondents do
not have the requisite standing to assail the validity of the rules on
adjudication. A valid source of a statute or a rule can only be contested
by one who will sustain a direct injury as a result of its enforcement.[58]
In the instant case, respondents are only being investigated by the PED
for their alleged failure to disclose their negotiations with GHB and the
transactions entered into by its directors involving IRC shares. The
respondents have not shown themselves to be under any imminent
danger of sustaining any personal injury attributable to the exercise of
adjudicative functions by the SEC. They are not being or about to be
subjected by the PED to charges, fees or fines; to citations for
contempt; or to the cancellation of their certificate of registration under
Section 1(h), Rule II of the PED Rules of Practice and Procedure.
To repeat, the only powers which the PED was likely to exercise over
the respondents were investigative in nature, to wit:
Section 1. Authority of the Prosecution and Enforcement Department
Pursuant to Presidential Decree No. 902-A, as amended by Presidential
Decree No. 1758, the Prosecution and Enforcement Department is
primarily charged with the following:
xxxx
b. Initiates proper investigation of corporations and partnerships or
persons, their books, records and other properties and assets, involving
their business transactions, in coordination with the operating
department involved;
xxxx
e.Files and prosecutes civil or criminal cases before the Commission and
other courts of justice involving violations of laws and decrees enforced
by the Commission and the rules and regulations promulgated
thereunder;
f. Prosecutes erring directors, officers and stockholders of corporations
and partnerships, commercial paper issuers or persons in accordance
with the pertinent rules on procedures;
The authority granted to the PED under Section 1(b), (e), and (f), Rule II
of the PED Rules of Practice and Procedure, need not comply with
Section 12, Chapter 3, Rule VII of the Administrative Code, which affects
only the adjudicatory functions of administrative bodies. Thus, the PED
would still be able to investigate the respondents under its rules for
their alleged failure to disclose their negotiations with GHB and the
transactions entered into by its directors involving IRC shares.
This is not to say that administrative bodies performing adjudicative
functions are required to strictly comply with the requirements of
Chapter 3, Rule VII of the Administrative Code, particularly, the right to
cross-examination. It should be noted that under Section 2.2 of
Executive Order No. 26, issued on 7 October 1992, abbreviated
proceedings are prescribed in the disposition of administrative cases:
2. Abbreviation of Proceedings. All administrative agencies are hereby
directed to adopt and include in their respective Rules of Procedure the
following provisions:
xxxx
2.2 Rules adopting, unless otherwise provided by special laws and
without prejudice to Section 12, Chapter 3, Book VII of the
Administrative Code of 1987, the mandatory use of affidavits in lieu of
direct testimonies and the preferred use of depositions whenever
practicable and convenient.
As a consequence, in proceedings before administrative or quasi-judicial
bodies, such as the National Labor Relations Commission and the
Philippine Overseas Employment Agency, created under laws which
authorize summary proceedings, decisions may be reached on the basis
of position papers or other documentary evidence only. They are not
bound by technical rules of procedure and evidence. [59] In fact, the
hearings before such agencies do not connote full adversarial

proceedings.[60] Thus, it is not necessary for the rules to require
affiants to appear and testify and to be cross-examined by the counsel
of the adverse party. To require otherwise would negate the summary
nature of the administrative or quasi-judicial proceedings.[61] In Atlas
Consolidated Mining and Development Corporation v. Factoran, Jr.,[62]
this Court stated that:
[I]t is sufficient that administrative findings of fact are supported by
evidence, or negatively stated, it is sufficient that findings of fact are not
shown to be unsupported by evidence. Substantial evidence is all that is
needed to support an administrative finding of fact, and substantial
evidence is such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.
In order to comply with the requirements of due process, what is
required, among other things, is that every litigant be given reasonable
opportunity to appear and defend his right and to introduce relevant
evidence in his favor.[63]
III. The Securities Regulations Code did not repeal Sections 8, 30 and 36
of the Revised Securities Act since said provisions were reenacted in the
new law.
The Securities Regulations Code absolutely repealed the Revised
Securities Act. While the absolute repeal of a law generally deprives a
court of its authority to penalize the person charged with the violation
of the old law prior to its appeal, an exception to this rule comes about
when the repealing law punishes the act previously penalized under the
old law. The Court, in Benedicto v. Court of Appeals, sets down the rules
in such instances:[64]
As a rule, an absolute repeal of a penal law has the effect of depriving
the court of its authority to punish a person charged with violation of
the old law prior to its repeal. This is because an unqualified repeal of a
penal law constitutes a legislative act of rendering legal what had been
previously declared as illegal, such that the offense no longer exists and
it is as if the person who committed it never did so. There are, however,
exceptions to the rule. One is the inclusion of a saving clause in the
repealing statute that provides that the repeal shall have no effect on
pending actions. Another exception is where the repealing act reenacts
the former statute and punishes the act previously penalized under the
old law. In such instance, the act committed before the reenactment
continues to be an offense in the statute books and pending cases are
not affected, regardless of whether the new penalty to be imposed is
more favorable to the accused. (Emphasis provided.)
In the present case, a criminal case may still be filed against the
respondents despite the repeal, since Sections 8, [65] 12,[66] 26,[67]
27[68] and 23[69] of the Securities Regulations Code impose duties that
are substantially similar to Sections 8, 30 and 36 of the repealed Revised
Securities Act.
Section 8 of the Revised Securities Act, which previously provided for
the registration of securities and the information that needs to be
included in the registration statements, was expanded under Section
12, in connection with Section 8 of the Securities Regulations Code.
Further details of the information required to be disclosed by the
CRIMINAL PROCEDURE RULE 110
registrant are explained in the Amended Implementing Rules and
Regulations of the Securities Regulations Code, issued on 30 December
2003, particularly Sections 8 and 12 thereof.
Section 30 of the Revised Securities Act has been reenacted as Section
27 of the Securities Regulations Code, still penalizing an insiders misuse
of material and non-public information about the issuer, for the
purpose of protecting public investors. Section 26 of the Securities
Regulations Code even widens the coverage of punishable acts, which
intend to defraud public investors through various devices,
misinformation and omissions.
Section 23 of the Securities Regulations Code was practically lifted from
Section 36(a) of the Revised Securities Act. Both provisions impose upon
(1) a beneficial owner of more than ten percent of any class of any
equity security or (2) a director or any officer of the issuer of such
security, the obligation to submit a statement indicating his or her
ownership of the issuers securities and such changes in his or her
ownership thereof.
Clearly, the legislature had not intended to deprive the courts of their
authority to punish a person charged with violation of the old law that
was repealed; in this case, the Revised Securities Act.
IV. The SEC retained the jurisdiction to investigate violations of the
Revised Securities Act, reenacted in the Securities Regulations Code,
despite the abolition of the PED.
Section 53 of the Securities Regulations Code clearly provides that
criminal complaints for violations of rules and regulations enforced or
administered by the SEC shall be referred to the Department of Justice
(DOJ) for preliminary investigation, while the SEC nevertheless retains
limited investigatory powers.[70] Additionally, the SEC may still impose
the appropriate administrative sanctions under Section 54 of the
aforementioned law.[71]
In Morato v. Court of Appeals,[72] the cases therein were still pending
before the PED for investigation and the SEC for resolution when the
Securities Regulations Code was enacted. The case before the SEC
involved an intra-corporate dispute, while the subject matter of the
other case investigated by the PED involved the schemes, devices, and
violations of pertinent rules and laws of the companys board of
directors. The enactment of the Securities Regulations Code did not
result in the dismissal of the cases; rather, this Court ordered the
transfer of one case to the proper regional trial court and the SEC to
continue with the investigation of the other case.
The case at bar is comparable to the aforecited case. In this case, the
SEC already commenced the investigative proceedings against
respondents as early as 1994. Respondents were called to appear
before the SEC and explain their failure to disclose pertinent
information on 14 August 1994. Thereafter, the SEC Chairman, having
already made initial findings that respondents failed to make timely
disclosures of their negotiations with GHB, ordered a special
investigating panel to hear the case. The investigative proceedings were
interrupted only by the writ of preliminary injunction issued by the
Court of Appeals, which became permanent by virtue of the Decision,
dated 20 August 1998, in C.A.-G.R. SP No. 37036. During the pendency
of this case, the Securities Regulations Code repealed the Revised
Securities Act. As in Morato v. Court of Appeals, the repeal cannot
deprive SEC of its jurisdiction to continue investigating the case; or the
regional trial court, to hear any case which may later be filed against the
respondents.
V. The instant case has not yet prescribed.
Respondents have taken the position that this case is moot and
academic, since any criminal complaint that may be filed against them
resulting from the SECs investigation of this case has already
prescribed.[73] They point out that the prescription period applicable to
offenses punished under special laws, such as violations of the Revised
Securities Act, is twelve years under Section 1 of Act No. 3326, as
amended by Act No. 3585 and Act No. 3763, entitled An Act to Establish
Periods of Prescription for Violations Penalized by Special Acts and
Municipal Ordinances and to Provide When Prescription Shall Begin to
Act.[74] Since the offense was committed in 1994, they reasoned that
prescription set in as early as 2006 and rendered this case moot. Such
position, however, is incongruent with the factual circumstances of this
case, as well as the applicable laws and jurisprudence.
It is an established doctrine that a preliminary investigation interrupts
the prescription period.[75] A preliminary investigation is essentially a
determination whether an offense has been committed, and whether
there is probable cause for the accused to have committed an offense:
A preliminary investigation is merely inquisitorial, and it is often the
only means of discovering the persons who may be reasonably charged
with a crime, to enable the fiscal to prepare the 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 or whether there is probable cause to believe that the
accused is guilty thereof.[76]
Under Section 45 of the Revised Securities Act, which is entitled
Investigations, Injunctions and Prosecution of Offenses, the Securities
Exchange Commission (SEC) has the authority to make such
investigations as it deems necessary to determine whether any person
has violated or is about to violate any provision of this Act XXX. After a
finding that a person has violated the Revised Securities Act, the SEC
may refer the case to the DOJ for preliminary investigation and
prosecution.
While the SEC investigation serves the same purpose and entails
substantially similar duties as the preliminary investigation conducted
by the DOJ, this process cannot simply be disregarded. In Baviera v.
Paglinawan,[77] this Court enunciated that a criminal complaint is first
filed with the SEC, which determines the existence of probable cause,
before a preliminary investigation can be commenced by the DOJ. In the
aforecited case, the complaint filed directly with the DOJ was dismissed
on the ground that it should have been filed first with the SEC. Similarly,
the offense was a violation of the Securities Regulations Code, wherein
the procedure for criminal prosecution was reproduced from Section 45
of the Revised Securities Act. [78] This Court affirmed the dismissal,
which it explained thus:

The Court of Appeals held that under the above provision, a criminal
complaint for violation of any law or rule administered by the SEC must
first be filed with the latter. If the Commission finds that there is
probable cause, then it should refer the case to the DOJ. Since
petitioner failed to comply with the foregoing procedural requirement,
the DOJ did not gravely abuse its discretion in dismissing his complaint
in I.S. No. 2004-229.
A criminal charge for violation of the Securities Regulation Code is a
specialized dispute. Hence, it must first be referred to an administrative
agency of special competence, i.e., the SEC. Under the doctrine of
primary jurisdiction, courts will not determine a controversy involving a
question within the jurisdiction of the administrative tribunal, where
the question demands the exercise of sound administrative discretion
requiring the specialized knowledge and expertise of said administrative
tribunal to determine technical and intricate matters of fact. The
Securities Regulation Code is a special law. Its enforcement is
particularly vested in the SEC. Hence, all complaints for any violation of
the Code and its implementing rules and regulations should be filed
with the SEC. Where the complaint is criminal in nature, the SEC shall
indorse the complaint to the DOJ for preliminary investigation and
prosecution as provided in Section 53.1 earlier quoted.
We thus agree with the Court of Appeals that petitioner committed a
fatal procedural lapse when he filed his criminal complaint directly with
the DOJ. Verily, no grave abuse of discretion can be ascribed to the DOJ
in dismissing petitioners complaint.
The said case puts in perspective the nature of the investigation
undertaken by the SEC, which is a requisite before a criminal case may
be referred to the DOJ. The Court declared that it is imperative that the
criminal prosecution be initiated before the SEC, the administrative
agency with the special competence.
It should be noted that the SEC started investigative proceedings
against the respondents as early as 1994. This investigation effectively
interrupted the prescription period. However, said proceedings were
disrupted by a preliminary injunction issued by the Court of Appeals on
5 May 1995, which effectively enjoined the SEC from filing any criminal,
civil, or administrative case against the respondents herein.[79]
Thereafter, on 20 August 1998, the appellate court issued the assailed
Decision in C.A. G.R. SP. No. 37036 ordering that the writ of injunction
be made permanent and prohibiting the SEC from taking cognizance of
and initiating any action against herein respondents. The SEC was
bound to comply with the aforementioned writ of preliminary
injunction and writ of injunction issued by the Court of Appeals
enjoining it from continuing with the investigation of respondents for 12
years. Any deviation by the SEC from the injunctive writs would be
sufficient ground for contempt. Moreover, any step the SEC takes in
defiance of such orders will be considered void for having been taken
against an order issued by a court of competent jurisdiction.
An investigation of the case by any other administrative or judicial body
would likewise be impossible pending the injunctive writs issued by the
Court of Appeals. Given the ruling of this Court in Baviera v.
Paglinawan,[80] the DOJ itself could not have taken cognizance of the
case and conducted its preliminary investigation without a prior
determination of probable cause by the SEC. Thus, even presuming that
CRIMINAL PROCEDURE RULE 110
the DOJ was not enjoined by the Court of Appeals from conducting a
preliminary investigation, any preliminary investigation conducted by
the DOJ would have been a futile effort since the SEC had only started
with its investigation when respondents themselves applied for and
were granted an injunction by the Court of Appeals.
Moreover, the DOJ could not have conducted a preliminary
investigation or filed a criminal case against the respondents during the
time that issues on the effectivity of Sections 8, 30 and 36 of the
Revised Securities Act and the PED Rules of Practice and Procedure
were still pending before the Court of Appeals. After the Court of
Appeals declared the aforementioned statutory and regulatory
provisions invalid and, thus, no civil, criminal or administrative case may
be filed against the respondents for violations thereof, the DOJ would
have been at a loss, as there was no statutory provision which
respondents could be accused of violating.
Accordingly, it is only after this Court corrects the erroneous ruling of
the Court of Appeals in its Decision dated 20 August 1998 that either
the SEC or DOJ may properly conduct any kind of investigation against
the respondents for violations of Sections 8, 30 and 36 of the Revised
Securities Act. Until then, the prescription period is deemed
interrupted.
To reiterate, the SEC must first conduct its investigations and make a
finding of probable cause in accordance with the doctrine pronounced
in Baviera v. Paglinawan.[81] In this case, the DOJ was precluded from
initiating a preliminary investigation since the SEC was halted by the
Court of Appeals from continuing with its investigation. Such a situation
leaves the prosecution of the case at a standstill, and neither the SEC
nor the DOJ can conduct any investigation against the respondents,
who, in the first place, sought the injunction to prevent their
prosecution. All that the SEC could do in order to break the impasse was
to have the Decision of the Court of Appeals overturned, as it had done
at the earliest opportunity in this case. Therefore, the period during
which the SEC was prevented from continuing with its investigation
should not be counted against it. The law on the prescription period
was never intended to put the prosecuting bodies in an impossible bind
in which the prosecution of a case would be placed way beyond their
control; for even if they avail themselves of the proper remedy, they
would still be barred from investigating and prosecuting the case.
Indubitably, the prescription period is interrupted by commencing the
proceedings for the prosecution of the accused. In criminal cases, this is
accomplished by initiating the preliminary investigation. The
prosecution of offenses punishable under the Revised Securities Act and
the Securities Regulations Code is initiated by the filing of a complaint
with the SEC or by an investigation conducted by the SEC motu proprio.
Only after a finding of probable cause is made by the SEC can the DOJ
instigate a preliminary investigation. Thus, the investigation that was
commenced by the SEC in 1995, soon after it discovered the
questionable acts of the respondents, effectively interrupted the
prescription period. Given the nature and purpose of the investigation
conducted by the SEC, which is equivalent to the preliminary
investigation conducted by the DOJ in criminal cases, such investigation
would surely interrupt the prescription period.
VI. The Court of Appeals was justified in denying SECs Motion for Leave
to Quash SEC Omnibus Orders dated 23 October 1995.
The SEC avers that the Court of Appeals erred when it denied its Motion
for Leave to Quash SEC Omnibus Orders, dated 23 October 1995, in the
light of its admission that the PED had the sole authority to investigate
the present case. On this matter, this Court cannot agree with the SEC.
In the assailed decision, the Court of Appeals denied the SECs Motion
for Leave to Quash SEC Omnibus Orders, since it found other issues that
were more important than whether or not the PED was the proper body
to investigate the matter. Its refusal was premised on its earlier finding
that no criminal, civil, or administrative case may be filed against the
respondents under Sections 8, 30 and 36 of the Revised Securities Act,
due to the absence of any implementing rules and regulations.
Moreover, the validity of the PED Rules on Practice and Procedure was
also raised as an issue. The Court of Appeals, thus, reasoned that if the
quashal of the orders was granted, then it would be deprived of the
opportunity to determine the validity of the aforementioned rules and
statutory provisions. In addition, the SEC would merely pursue the same
case without the Court of Appeals having determined whether or not it
may do so in accordance with due process requirements. Absent a
determination of whether the SEC may file a case against the
respondents based on the assailed provisions of the Revised Securities
Act, it would have been improper for the Court of Appeals to grant the
SECs Motion for Leave to Quash SEC Omnibus Orders.
IN ALL, this Court rules that no implementing rules were needed to
render effective Sections 8, 30 and 36 of the Revised Securities Act; nor
was the PED Rules of Practice and Procedure invalid, prior to the
enactment of the Securities Regulations Code, for failure to provide
parties with the right to cross-examine the witnesses presented against
them. Thus, the respondents may be investigated by the appropriate
authority under the proper rules of procedure of the Securities
Regulations Code for violations of Sections 8, 30, and 36 of the Revised
Securities Act.[82]
IN VIEW OF THE FOREGOING, the instant Petition is GRANTED. This
Court hereby REVERSES the assailed Decision of the Court of Appeals
promulgated on 20 August 1998 in CA-G.R. SP No. 37036 and LIFTS the
permanent injunction issued pursuant thereto. This Court further
DECLARES that the investigation of the respondents for violations of
Sections 8, 30 and 36 of the Revised Securities Act may be undertaken
by the proper authorities in accordance with the Securities Regulations
Code. No costs.
SO ORDERED.

FIRST DIVISION
SANRIO COMPANY G.R. No. 168662
LIMITED,
Petitioner, Present:
PUNO, C.J., Chairperson,
SANDOVAL-GUTIERREZ,
- v e r s u s - CORONA,
AZCUNA and
LEONARDO-DE CASTRO, JJ.
EDGAR C. LIM, doing
business as ORIGNAMURA
TRADING, Promulgated:
Respondent.
February 19, 2008
x---------------------------------------------------x
DECISION
CORONA, J.:
This petition for review on certiorari[1] seeks to set aside the decision of
the Court of Appeals (CA) in CA-G.R. CV No. 74660[2] and its
resolution[3] denying reconsideration.
Petitioner Sanrio Company Limited, a Japanese corporation, owns the
copyright of various animated characters such as Hello Kitty, Little Twin
Stars, My Melody, Tuxedo Sam and Zashikibuta among others.[4] While
it is not engaged in business in the Philippines, its products are sold
locally by its exclusive distributor, Gift Gate Incorporated (GGI).[5]
As such exclusive distributor, GGI entered into licensing agreements
with JC Lucas Creative Products, Inc., Paper Line Graphics, Inc. and
Melawares Manufacturing Corporation.[6] These local entities were
allowed to manufacture certain products (bearing petitioner's
copyrighted animated characters) for the local market.
Sometime in 2001, due to the deluge of counterfeit Sanrio products,
GGI asked IP Manila Associates (IPMA) to conduct a market research.
The research's objective was to identify those factories, department
stores and retail outlets manufacturing and/or selling fake Sanrio
items.[7] After conducting several test-buys in various commercial
areas, IPMA confirmed that respondent's Orignamura Trading in
Tutuban Center, Manila was selling imitations of petitioner's
products.[8]
Consequently, on May 29, 2000, IPMA agents Lea A. Carmona and Arnel
P. Dausan executed a joint affidavit attesting to the aforementioned
facts.[9] IPMA forwarded the said affidavit to the National Bureau of
Investigation (NBI) which thereafter filed an application for the issuance
of a search warrant in the office of the Executive Judge of the Regional
Trial Court of Manila.[10]
After conducting the requisite searching inquiry, the executive judge
issued a search warrant on May 30, 2000.[11] On the same day, agents
of the NBI searched the premises of Orignamura Trading. As a result
thereof, they were able to seize various Sanrio products.[12]
CRIMINAL PROCEDURE RULE 110
On April 4, 2002, petitioner, through its attorney-in-fact Teodoro Y.
Kalaw IV of the Quisumbing Torres law firm, filed a complaint-
affidavit[13] with the Task-Force on Anti-Intellectual Property Piracy
(TAPP) of the Department of Justice (DOJ) against respondent for
violation of Section 217 (in relation to Sections 177[14] and 178[15]) of
the Intellectual Property Code (IPC) which states:
Section 217. Criminal Penalties. 217.1. Any person infringing any right
secured by provisions of Part IV of this Act or aiding or abetting such
infringement shall be guilty of a crime punishable by:
(a) Imprisonment of one (1) year to three (3) years plus a fine ranging
from Fifty thousand pesos (P50,000) to One hundred fifty thousand
pesos (P150,000) for the first offense.
(b) Imprisonment of three (3) years and one (1) day to six (6) years plus
a fine ranging from One hundred fifty thousand pesos (P150,000) to
Five hundred thousand pesos (P500,000) for the second offense.
(c) Imprisonment of six (6) years and one (1) day to nine (9) years plus a
fine ranging from Five hundred thousand pesos (P500,000) to One
million five hundred thousand pesos (P1,500,000) for the third and
subsequent offenses.
(d) In all cases, subsidiary imprisonment in cases of insolvency.
217.2. In determining the number of years of imprisonment and the
amount of fine, the court shall consider the value of the infringing
materials that the defendant has produced or manufactured and the
damage that the copyright owner has suffered by reason of
infringement.
217.3. Any person who at the time when copyright subsists in a work
has in his possession an article which he knows, or ought to know, to be
an infringing copy of the work for the purpose of:
(a) Selling, letting for hire, or by way of trade offering or exposing for
sale, or hire, the article;
(b) Distributing the article for purpose of trade or any other purpose to
an extent that will prejudice the rights of the copyright of the owner in
the work; or
(c) Trade exhibit of the article in public, shall be guilty of an offense and
shall be liable on conviction to imprisonment and fine as above
mentioned. (emphasis supplied)
Respondent asserted in his counter-affidavit[16] that he committed no
violation of the provisions of the IPC because he was only a retailer.[17]
Respondent neither reproduced nor manufactured any of petitioner's
copyrighted item; thus, he did not transgress the economic rights of
petitioner.[18] Moreover, he obtained his merchandise from authorized
manufacturers of petitioner's products.[19]
On September 25, 2002, the TAPP found that:
Evidence on record would show that respondent bought his
merchandise from legitimate sources, as shown by official receipts
issued by JC Lucas Creative Products, Inc., Paper Line Graphics, Inc. and
Melawares Manufacturing Corporation. In fact, in her letter dated May
23, 2002, Ms. Ma. Angela S. Garcia certified that JC Lucas Creative
Products, Inc., Paper Line Graphics, Inc. and Melawares Manufacturing
Corporation are authorized to produce certain Sanrio products. While it
appears that some of the items seized during the search are not among
those products which [GGI] authorized these establishments to
produce, the fact remains that respondent bought these from the
abovecited legitimate sources. At this juncture, it bears stressing that
respondent relied on the representations of these manufacturers and
distributors that the items they sold were genuine. As such, it is not
incumbent upon respondent to verify from these sources what items
[GGI] only authorized them to produce. Thus, as far as respondent is
concerned, the items in his possession are not infringing copies of the
original [petitioner's] products. (emphasis supplied)[20]
Thus, in a resolution dated September 25, 2002, it dismissed the
complaint due to insufficiency of evidence.[21]
Petitioner moved for reconsideration but it was denied.[22] Hence, it
filed a petition for review in the Office of the Chief State Prosecutor of
the DOJ.[23] In a resolution dated August 29, 2003,[24] the Office of the
Chief State Prosecutor affirmed the TAPP resolution. The petition was
dismissed for lack of reversible error.
Aggrieved, petitioner filed a petition for certiorari in the CA. On May 3,
2005, the appellate court dismissed the petition on the ground of
prescription. It based its action on Act 3326 which states:
Section 1. Violations penalized by special acts shall, unless otherwise
provided in such acts, prescribe in accordance with the following rules:
(a) after a year for offenses punished only by a fine or by imprisonment
for not more than one month, or both; (b) after four years for those
punished by imprisonment for more than one month, but less than two
years; (c) after eight years for those punished by imprisonment for two
years or more, but less than six years; and (d) after twelve years for any
other offense punished by imprisonment for six years or more, except
the crime of treason, which shall prescribe after twenty years; Provided,
however, That all offenses against any law or part of law administered
by the Bureau of Internal Revenue shall prescribe after five years.
Violations penalized by municipal ordinances shall prescribe after two
months.
Section 2. Prescription shall begin to run from the day of the
commission of the violation of the law, and if the same may not be
known at the time, from the discovery thereof and the institution of
judicial proceedings for its investigation and punishment.
The prescription shall be interrupted when proceedings are instituted
against the guilty person, and shall begin to run again if the proceedings
are dismissed for reasons not constituting jeopardy.
According to the CA, because no complaint was filed in court within two
years after the commission of the alleged violation, the offense had
already prescribed.[25]
On the merits of the case, the CA concluded that the DOJ did not
commit grave abuse of discretion in dismissing the petition for
review.[26] To be criminally liable for violation of Section 217.3 of the
IPC, the following requisites must be present:
1. possession of the infringing copy and
2. knowledge or suspicion that the copy is an infringement of the
genuine article.

The CA agreed with the DOJ that petitioner failed to prove that
respondent knew that the merchandise he sold was counterfeit.
Respondent, on the other hand, was able to show that he obtained
these goods from legitimate sources.[27]
Petitioner moved for reconsideration but it was denied. Hence, this
petition.
Petitioner now essentially avers that the CA erred in concluding that the
alleged violations of the IPC had prescribed. Recent jurisprudence holds
that the pendency of a preliminary investigation suspends the running
of the prescriptive period.[28] Moreover, the CA erred in finding that
the DOJ did not commit grave abuse of discretion in dismissing the
complaint. Respondent is liable for copyright infringement (even if he
obtained his merchandise from legitimate sources) because he sold
counterfeit goods.[29]
Although we do not agree wholly with the CA, we deny the petition.
FILING OF THE COMPLAINT IN THE DOJ TOLLED THE PRESCRIPTIVE
PERIOD
Section 2 of Act 3326 provides that the prescriptive period for violation
of special laws starts on the day such offense was committed and is
interrupted by the institution of proceedings against respondent (i.e.,
the accused).
Petitioner in this instance filed its complaint-affidavit on April 4, 2002 or
one year, ten months and four days after the NBI searched respondent's
premises and seized Sanrio merchandise therefrom. Although no
information was immediately filed in court, respondent's alleged
violation had not yet prescribed.[30]
In the recent case of Brillantes v. Court of Appeals,[31] we affirmed that
the filing of the complaint for purposes of preliminary investigation
interrupts the period of prescription of criminal responsibility.[32] Thus,
the prescriptive period for the prosecution of the alleged violation of
the IPC was tolled by petitioner's timely filing of the complaint-affidavit
before the TAPP.
IN THE ABSENCE OF GRAVE ABUSE OF DISCRETION, THE FACTUAL
FINDINGS OF THE DOJ IN PRELIMINARY INVESTIGATIONS WILL NOT BE
DISTURBED
In a preliminary investigation, a public prosecutor determines whether a
crime has been committed and whether there is probable cause that
the accused is guilty thereof.[33] Probable cause is defined as such facts
and circumstances that will engender a well-founded belief that a crime
has been committed and that the respondent is probably guilty thereof
and should be held for trial.[34] Because a public prosecutor is the one
conducting a preliminary investigation, he determines the existence of
probable cause.[35] Consequently, the decision to file a criminal
information in court or to dismiss a complaint depends on his sound
discretion.[36]
As a general rule, a public prosecutor is afforded a wide latitude of
discretion in the conduct of a preliminary investigation. For this reason,
CRIMINAL PROCEDURE RULE 110
courts generally do not interfere with the results of such proceedings. A
prosecutor alone determines the sufficiency of evidence that will
establish probable cause justifying the filing of a criminal information
against the respondent.[37] By way of exception, however, judicial
review is allowed where respondent has clearly established that the
prosecutor committed grave abuse of discretion.[38] Otherwise stated,
such review is appropriate only when the prosecutor has exercised his
discretion in an arbitrary, capricious, whimsical or despotic manner by
reason of passion or personal hostility, patent and gross enough to
amount to an evasion of a positive duty or virtual refusal to perform a
duty enjoined by law.[39]
The prosecutors in this case consistently found that no probable cause
existed against respondent for violation of the IPC. They were in the
best position to determine whether or not there was probable cause.
We find that they arrived at their findings after carefully evaluating the
respective evidence of petitioner and respondent. Their conclusion was
not tainted with grave abuse of discretion.
WHEREFORE, the petition is hereby DENIED.
Costs against petitioner.
SO ORDERED.
SECOND DIVISION
LUIS PANAGUITON, JR., G.R. No. 167571
Petitioner,
Present:
QUISUMBING, J.,
Chairperson,
- versus - CARPIO MORALES,
TINGA,
VELASCO, JR., and
BRION, JJ.
DEPARTMENT OF JUSTICE,
RAMON C. TONGSON and
RODRIGO G. CAWILI, Promulgated:
Respondents.
November 25, 2008
x----------------------------------------------------------------------------x
DECISION
TINGA, J.:
This is a Petition for Review[1] of the resolutions of the Court of Appeals
dated 29 October 2004 and 21 March 2005 in CA G.R. SP No. 87119, which
dismissed Luis Panaguiton, Jr.s (petitioners) petition for certiorari and his
subsequent motion for reconsideration.[2]
The facts, as culled from the records, follow.
In 1992, Rodrigo Cawili (Cawili) borrowed various sums of money
amounting to P1,979,459.00 from petitioner. On 8 January 1993, Cawili
and his business associate, Ramon C. Tongson (Tongson), jointly issued in
favor of petitioner three (3) checks in payment of the said loans.
Significantly, all three (3) checks bore the signatures of both Cawili and
Tongson. Upon presentment for payment on 18 March 1993, the checks
were dishonored, either for insufficiency of funds or by the closure of the
account. Petitioner made formal demands to pay the amounts of the
checks upon Cawili on 23 May 1995 and upon Tongson on 26 June 1995,
but to no avail.[3]
On 24 August 1995, petitioner filed a complaint against Cawili and
Tongson[4] for violating Batas Pambansa Bilang 22 (B.P. Blg. 22)[5] before
the Quezon City Prosecutors Office. During the preliminary investigation,
only Tongson appeared and filed his counter-affidavit.[6] Tongson claimed
that he had been unjustly included as party-respondent in the case since
petitioner had lent money to Cawili in the latters personal capacity.
Moreover, like petitioner, he had lent
various sums to Cawili and in appreciation of his services, he was
offered to be an officer of Roma Oil Corporation. He averred that he was
not Cawilis business associate; in fact, he himself had filed several criminal
cases against Cawili for violation of B.P. Blg. 22. Tongson denied that he
had issued the bounced checks and pointed out that his signatures on the
said checks had been falsified.
To counter these allegations, petitioner presented several documents
showing Tongsons signatures, which were purportedly the same as the
those appearing on the checks.[7] He also showed a copy of an affidavit of
adverse claim wherein Tongson himself had claimed to be Cawilis business
associate.[8]

In a resolution dated 6 December 1995,[9] City Prosecutor III Eliodoro V.
Lara found probable cause only against Cawili and dismissed the charges
against Tongson. Petitioner filed a partial appeal before the Department of
Justice (DOJ) even while the case against Cawili was filed before the proper
court. In a letter-resolution dated 11 July 1997,[10] after finding that it was
possible for Tongson to co-sign the bounced checks and that he had
deliberately altered his signature in the pleadings submitted during the
preliminary investigation, Chief State Prosecutor Jovencito R. Zuo directed
the City Prosecutor of Quezon City to conduct a reinvestigation of the case
against Tongson and to refer the questioned signatures to the National
Bureau of Investigation (NBI).
Tongson moved for the reconsideration of the resolution, but his motion
was denied for lack of merit.
On 15 March 1999, Assistant City Prosecutor Ma. Lelibet S. Sampaga (ACP
Sampaga) dismissed the complaint against Tongson without referring the
matter to the NBI per the Chief State Prosecutors resolution. In her
resolution,[11] ACP Sampaga held that the case had already prescribed
pursuant to Act No. 3326, as amended,[12] which provides that violations
penalized by B.P. Blg. 22 shall prescribe after four (4) years. In this case,
the four (4)-year period started on the date the checks were dishonored,
or on 20 January 1993 and 18 March 1993. The filing of the complaint
before the Quezon City Prosecutor on 24 August 1995 did not interrupt the
running of the prescriptive period, as the law contemplates judicial, and
not administrative proceedings. Thus, considering that from 1993 to 1998,
more than four (4) years had already elapsed and no information had as
yet been filed against Tongson, the alleged violation of B.P. Blg. 22
imputed to him had already prescribed.[13] Moreover, ACP
Sampaga stated that the order of the Chief State Prosecutor to refer the
matter to the NBI could no longer be sanctioned under Section 3, Rule 112
of the Rules of Criminal Procedure because the initiative should come from
petitioner himself and not the investigating prosecutor.[14] Finally, ACP
Sampaga found that Tongson had no dealings with petitioner.[15]
Petitioner appealed to the DOJ. But the DOJ, through Undersecretary
Manuel A.J. Teehankee, dismissed the same, stating that the offense had
already prescribed pursuant to Act No. 3326.[16] Petitioner filed a motion
for reconsideration of the DOJ resolution. On 3 April 2003,[17] the DOJ, this
time through then Undersecretary Ma. Merceditas N. Gutierrez, ruled in
his favor and declared that the offense had not prescribed and that the
filing of the complaint with the prosecutors office interrupted the running
of the prescriptive period citing Ingco v. Sandiganbayan.[18] Thus, the Office
of the City Prosecutor of Quezon City was directed to file three (3)
separate informations against Tongson for violation of B.P. Blg. 22.[19] On 8
July 2003, the City Prosecutors Office filed an information[20] charging
petitioner with three (3) counts of violation of B.P. Blg. 22.[21]
However, in a resolution dated 9 August 2004,[22] the DOJ, presumably
acting on a motion for reconsideration filed by Tongson, ruled that
the subject offense had already prescribed and ordered the withdrawal of
the three (3) informations for violation of B.P. Blg. 22 against Tongson. In
justifying its sudden turnabout, the DOJ explained that Act No. 3326
applies to violations of special acts that do not provide for a prescriptive
period for the offenses thereunder. Since B.P. Blg. 22, as a special act, does
not provide for the prescription of the offense it defines and punishes, Act
No. 3326 applies to it, and not Art. 90 of the Revised Penal Code which
governs the prescription of offenses penalized thereunder.[23] The DOJ also
CRIMINAL PROCEDURE RULE 110
cited the case of Zaldivia v. Reyes, Jr.,[24] wherein the Supreme Court ruled
that the proceedings referred to in Act No. 3326, as amended, are judicial
proceedings, and not the one before the prosecutors office.
Petitioner thus filed a petition for certiorari[25] before the Court of Appeals
assailing the 9 August 2004 resolution of the DOJ. The petition was
dismissed by the Court of Appeals in view of
petitioners failure to attach a proper verification and certification of non-
forum
shopping. The Court of Appeals also noted that the 3 April 2003 resolution
of the DOJ attached to the petition is a mere photocopy.[26]
Petitioner moved for the reconsideration of the appellate courts
resolution, attaching to said motion an amended Verification/Certification
of Non-Forum Shopping.[27] Still, the Court of Appeals denied petitioners
motion, stating that subsequent compliance with the formal requirements
would not per se warrant a reconsideration of its resolution. Besides, the
Court of Appeals added, the petition is patently without merit and the
questions raised therein are too unsubstantial to require consideration.[28]
In the instant petition, petitioner claims that the Court of
Appeals committed grave error in dismissing his petition on technical
grounds and in ruling that the petition before it was patently without merit
and the questions are too unsubstantial to require consideration.
The DOJ, in its comment,[29] states that the Court of Appeals did not err in
dismissing the petition for non-compliance with the Rules of Court. It also
reiterates that the filing of a complaint with the Office of the City
Prosecutor of Quezon City does not interrupt the running of the
prescriptive period for violation of B.P. Blg. 22. It argues that under B.P.
Blg. 22, a special law which does not provide for its own prescriptive
period, offenses prescribe in four (4) years in accordance with Act No.
3326.
Cawili and Tongson submitted their comment, arguing that the Court of
Appeals did not err in dismissing the petition for certiorari. They claim that
the offense of violation of B.P. Blg. 22 has already prescribed per Act No.
3326. In addition, they claim that the long delay, attributable to petitioner
and the State, violated their constitutional right to speedy disposition of
cases.[30]
The petition is meritorious.
First on the technical issues.
Petitioner submits that the verification attached to his petition before the
Court of Appeals substantially complies with the rules, the verification
being intended simply to secure an assurance that the allegations in the
pleading are true and correct and not a product of the imagination or a
matter of speculation. He points out that this Court has held in a number
of cases that a deficiency in the verification can be excused or dispensed
with, the defect being neither jurisdictional nor always fatal. [31]
Indeed, the verification is merely a formal requirement intended to secure
an assurance that matters which are alleged are true and correctthe court
may simply order the correction of unverified pleadings or act on them and
waive strict compliance with the rules in order that the ends of justice may
be served,[32] as in the instant case. In the case at bar, we find that by
attaching the pertinent verification to his motion for reconsideration,
petitioner sufficiently complied with the verification requirement.
Petitioner also submits that the Court of Appeals erred in dismissing the
petition on the ground that there was failure to attach a certified true copy
or duplicate original of the 3 April 2003 resolution
of the DOJ.We agree. A plain reading of the petition before the
Court of Appeals shows that it seeks the annulment of the DOJ resolution
dated 9 August 2004,[33] a certified true copy of which was attached as
Annex A.[34] Obviously, the Court of Appeals committed a grievous mistake.
Now, on the substantive aspects.
Petitioner assails the DOJs reliance on Zaldivia v. Reyes,[35] a case involving
the violation of a municipal ordinance, in declaring that the prescriptive
period is tolled only upon filing of the information in court. According to
petitioner, what is applicable in this case is Ingco v.
Sandiganbayan,[36] wherein this Court ruled that the filing of the complaint
with the fiscals office for preliminary investigation suspends the running of
the prescriptive period. Petitioner also notes that the Ingco case similarly
involved the violation of a special law, Republic Act (R.A.) No. 3019,
otherwise known as the Anti-Graft and Corrupt Practices Act, petitioner
notes.[37] He argues that sustaining the DOJs and the Court of
Appeals pronouncements would result in grave injustice to him since the
delays in the present case were clearly beyond his control.[38]
There is no question that Act No. 3326, appropriately entitled An Act to
Establish Prescription for Violations of Special Acts and Municipal
Ordinances and to Provide When Prescription Shall Begin, is the law
applicable to offenses under special laws which do not provide their own
prescriptive periods. The pertinent provisions read:
SECTION 1. Violations penalized by
special acts shall, unless otherwise provided in such
acts, prescribe in accordance with the following
rules: (a) x x x; (b) after four years for those
punished by imprisonment for more than one
month, but less than two years; (c) x x x
SEC. 2. Prescription shall begin to run
from the day of the commission of the violation of
the law, and if the same be not known at the time,
from the discovery thereof and the institution of
judicial proceedings for its investigation and
punishment.
The prescription shall be interrupted
when proceedings are instituted against the guilty
person, and shall begin to run
again if the proceedings are dismissed for reasons
not constituting jeopardy.
We agree that Act. No. 3326 applies to offenses under B.P. Blg.
22. An offense under B.P. Blg. 22 merits the penalty of imprisonment of
not less than thirty (30) days but not more than one year or by a fine,
hence, under Act No. 3326, a violation of B.P. Blg. 22 prescribes in four (4)
years from the commission of the offense or, if the same be not known at
the time, from the discovery thereof. Nevertheless, we cannot uphold the
position that only the filing of a case in court can toll the running of the
prescriptive period.

It must be pointed out that when Act No. 3326 was passed
on 4 December 1926, preliminary investigation of criminal offenses was
conducted by justices of the peace, thus, the phraseology in the law,
institution of judicial proceedings for its investigation and
punishment,[39] and the prevailing rule at the time was that once a
complaint is filed with the justice of the peace for preliminary
investigation, the prescription of the offense is halted.[40]
The historical perspective on the application of Act No. 3326 is
illuminating.[41] Act No. 3226 was approved on 4 December 1926 at a time
when the function of conducting the preliminary investigation of criminal
offenses was vested in the justices of the peace. Thus, the prevailing rule
at the time, as shown in the cases of U.S. v. Lazada[42] and People v.
Joson,[43] is that the prescription of the offense is tolled once a complaint is
filed with the justice of the peace for preliminary investigation inasmuch as
the filing of the complaint signifies the
institution of the criminal proceedings against the accused.[44] These cases
were followed by our declaration in People v. Parao and Parao[45] that the
first step taken in the investigation or examination of offenses partakes the
nature of a judicial proceeding which suspends the prescription of the
offense.[46] Subsequently, in People v. Olarte,[47] we held that the filing of
the complaint in the Municipal Court, even if it be merely for purposes of
preliminary examination or investigation, should, and does, interrupt the
period of prescription of the criminal responsibility, even if the court
where the complaint or information is filed cannot try the case on the
merits. In addition, even if the court where the complaint or information is
filed may only proceed to investigate the case, its actuations already
represent the initial step of the proceedings against the offender,[48] and
hence, the prescriptive period should be interrupted.
In Ingco v. Sandiganbayan[49] and Sanrio Company Limited v.
Lim,[50] which involved violations of the Anti-Graft and Corrupt Practices
Act (R.A. No. 3019) and the Intellectual Property Code (R.A. No. 8293),
which are both special laws, the Court ruled that the
prescriptive period is interrupted by the institution of proceedings for
preliminary investigation against the accused. In the more recent case
of Securities and Exchange Commission v. Interport Resources Corporation,
et al.,[51] the Court ruled that the nature and purpose of the investigation
conducted by the Securities and Exchange Commission on violations of the
Revised Securities Act,[52] another special law, is equivalent to the
preliminary investigation conducted by the DOJ in criminal cases, and thus
effectively interrupts the prescriptive period.
The following disquisition in the Interport Resources case[53] is
instructive, thus:
While it may be observed that the
term judicial proceedings in Sec. 2 of Act No. 3326
appears before investigation and punishment in
the old law, with the subsequent change in set-up
whereby the investigation of the charge for
purposes of prosecution has become the exclusive
function of the executive branch, the term
proceedings should now be understood either
executive or judicial in character: executive when
it involves the investigation phase and judicial
when it refers to the trial and judgment stage.
With this clarification, any kind of investigative
CRIMINAL PROCEDURE RULE 110
proceeding instituted against the guilty person
which may ultimately lead to his
prosecution should be sufficient to toll
prescription.[54]
Indeed, to rule otherwise would deprive the injured party the
right to obtain vindication on account of delays that are not under his
control.[55] A clear example would be this case, wherein petitioner filed his
complaint-affidavit on 24 August 1995, well within the four (4)-year
prescriptive period. He likewise timely filed his appeals and his motions for
reconsideration on the dismissal of the charges against
Tongson. He went through the proper channels, within the prescribed
periods. However, from the time petitioner filed his complaint-affidavit
with the Office of the City Prosecutor (24 August 1995) up to the time the
DOJ issued the assailed resolution, an aggregate period of nine (9) years
had elapsed. Clearly, the delay was beyond petitioners control. After all, he
had already initiated the active prosecution of the case as early as 24
August 1995, only to suffer setbacks because of the DOJs flip-flopping
resolutions and its misapplication of Act No. 3326. Aggrieved parties,
especially those who do not sleep on their rights and actively pursue their
causes, should not be allowed to suffer unnecessarily further simply
because of circumstances beyond their control, like the accuseds delaying
tactics or the delay and inefficiency of the investigating agencies.
We rule and so hold that the offense has not yet
prescribed. Petitioner s filing of his complaintaffidavit before the Office of
the City Prosecutor on 24 August 1995 signified the commencement of the
proceedings for the prosecution of the accused and thus effectively
interrupted the prescriptive period for the offenses they had been charged
under B.P. Blg. 22. Moreover, since there is a definite finding of probable
cause, with the debunking of the claim of prescription there is no longer
any impediment to the filing of the information against petitioner.
WHEREFORE, the petition is GRANTED. The resolutions of the
Court of Appeals dated 29 October 2004 and 21 March 2005 are REVERSED
and SET ASIDE. The resolution of the Department of Justice dated 9 August
2004 is also ANNULLED and SET ASIDE. The Department of Justice is
ORDERED to REFILE the information against the petitioner.
No costs.
SO ORDERED.
FIRST DIVISION
MANUEL V. BAVIERA,
Petitioner,
- versus -
ESPERANZA PAGLINAWAN, in her capacity as Department of Justice
State Prosecutor; LEAH C. TANODRA-ARMAMENTO, In her capacity as
Assistant Chief State Prosecutor and Chairwoman of Task Force on
Business Scam; JOVENCITO R. ZUNO, in his capacity as Department of
Justice Chief State Prosecutor; STANDARD CHARTERED BANK,
PAUL SIMON MORRIS, AJAY KANWAL, SRIDHAR
RAMAN, MARIVEL GONZALES, CHONA REYES, MARIA ELLEN VICTOR,
and ZENAIDA IGLESIAS, Respondents.
x-----------------------------x
G.R. No. 168380
MANUEL V. BAVIERA, Petitioner,
- versus
STANDARD CHARTERED BANK, BRYAN K. SANDERSON, THE RIGHT
HONORABLE LORD STEWARTBY, EVAN MERVYN DAVIES, MICHAEL
BERNARD DENOMA, CHRISTOPHER AVEDIS KELJIK, RICHARD HENRY
MEDDINGS, KAI NARGOLWALA, PETER ALEXANDER SANDS, RONNIE CHI
CHUNG CHAN, SIR CK CHOW, BARRY CLARE, HO KWON PING, RUDOLPH
HAROLD PETER ARKHAM, DAVID GEORGE MOIR, HIGH EDWARD NORTON,
SIR RALPH HARRY ROBINS, ANTHONY WILLIAM PAUL STENHAM
(Standard Chartered Bank Chairman, Deputy Chairman, and Members
of the Board), SHERAZAM MAZARI (Group Regional Head for Consumer
Banking), PAUL SIMON MORRIS, AJAY KANWAL, SRIDHAR RAMAN,
MARIVEL GONZALES, CHONA REYES, ELLEN VICTOR, RAMONA H. BERNAD,
DOMINGO CARBONELL, JR., and ZENAIDA IGLESIAS (Standard Chartered
Bank-Philippines Branch Heads/Officers),
Respondents.
G.R. No. 170602
x -------------------------------------------------------------------------------------------x
DECISION
SANDOVAL-GUTIERREZ, J.:
Before us are two consolidated Petitions for Review on Certiorari assailing
the Decisions of the Court of Appeals in CA-G.R. SP No. 87328[1] and in CA-
G.R. SP No. 85078.[2]
The common factual antecedents of these cases as shown by the records
are:
Manuel Baviera, petitioner in these cases, was the former head of the HR
Service Delivery and Industrial Relations of Standard Chartered Bank-
Philippines (SCB), one of herein respondents. SCB is a foreign banking

corporation duly licensed to engage in banking, trust, and other fiduciary
business in the Philippines. Pursuant to Resolution No. 1142
dated December 3, 1992 of the Monetary Board of the Bangko Sentral ng
Pilipinas (BSP), the conduct of SCBs business in this jurisdiction is subject to
the following conditions:
1. At the end of a one-year period from the
date the SCB starts its trust functions, at
least 25% of its trust accounts must be
for the account of non-residents of the
Philippines and that actual foreign
exchange had been remitted into the
Philippines to fund such accounts or that
the establishment of such accounts had
reduced the indebtedness of residents
(individuals or corporations or
government agencies) of the Philippines
to non-residents. At the end of the
second year, the above ratio shall be
50%, which ratio must be observed
continuously thereafter;
2. The trust operations of SCB shall be
subject to all existing laws, rules and
regulations applicable to trust services,
particularly the creation of a Trust
Committee; and
3. The bank shall inform the appropriate
supervising and examining department
of the BSP at the start of its operations.
Apparently, SCB did not comply with the above conditions. Instead, as
early as 1996, it acted as a stock broker, soliciting from local residents
foreign securities called GLOBAL THIRD PARTY MUTUAL FUNDS (GTPMF),
denominated in US dollars. These securities were not registered with the
Securities and Exchange Commission (SEC). These were then remitted
outwardly to SCB-Hong Kong and SCB-Singapore.
SCBs counsel, Romulo Mabanta Buenaventura Sayoc and Delos Angeles
Law Office, advised the bank to proceed with the selling of the foreign
securities although unregistered with the SEC, under the guise of a
custodianship agreement; and should it be questioned, it shall invoke
Section 72[3] of the General Banking Act (Republic Act No.337).[4] In sum,
SCB was able to sell GTPMF securities worth around P6 billion to some 645
investors.
However, SCBs operations did not remain unchallenged. On July 18, 1997,
the Investment Capital Association of the Philippines (ICAP) filed with the
SEC a complaint alleging that SCB violated the Revised Securities
Act,[5] particularly the provision prohibiting the selling of securities without
prior registration with the SEC; and that its actions are potentially
damaging to the local mutual fund industry.
In its answer, SCB denied offering and selling securities, contending that it
has been performing a purely informational function without solicitations
for any of its investment outlets abroad; that it has a trust license and the
CRIMINAL PROCEDURE RULE 110
services it renders under the Custodianship Agreement for offshore
investments are authorized by Section 72[6] of the General Banking Act;
that its clients were the ones who took the initiative to invest in securities;
and it has been acting merely as an agent or passive order taker for them.
On September 2, 1997, the SEC issued a Cease and Desist Order against
SCB, holding that its services violated Sections 4(a)[7] and 19[8] of the
Revised Securities Act.
Meantime, the SEC indorsed ICAPs complaint and its supporting
documents to the BSP.
On October 31, 1997, the SEC informed the Secretary of Finance that it
withdrew GTPMF securities from the market and that it will not sell the
same without the necessary clearances from the regulatory authorities.
Meanwhile, on August 17, 1998, the BSP directed SCB not to include
investments in global mutual funds issued abroad in its trust investments
portfolio without prior registration with the SEC.
On August 31, 1998, SCB sent a letter to the BSP confirming that it will
withdraw third-party fund products which could be directly purchased by
investors.
However, notwithstanding its commitment and the BSP directive, SCB
continued to offer and sell GTPMF securities in this country. This prompted
petitioner to enter into an Investment Trust Agreement with SCB wherein
he purchased US$8,000.00 worth of securities upon the banks promise of
40% return on his investment and a guarantee that his money is safe. After
six (6) months, however, petitioner learned that the value of his
investment went down to US$7,000.00. He tried to withdraw his
investment but was persuaded by Antonette de los Reyes of SCB to hold on
to it for another six (6) months in view of the possibility that the market
would pick up.
Meanwhile, on November 27, 2000, the BSP found that SCB failed to
comply with its directive of August 17, 1998. Consequently, it was fined in
the amount of P30,000.00.
The trend in the securities market, however, was bearish and the worth of
petitioners investment went down further to only US$3,000.00.
On October 26, 2001, petitioner learned from Marivel Gonzales, head of
the SCB Legal and Compliance Department, that the latter had been
prohibited by the BSP to sell GPTMF securities. Petitioner then filed with
the BSP a letter-complaint demanding compensation for his lost
investment. But SCB denied his demand on the ground that his investment
is regular.
On July 15, 2003, petitioner filed with the Department of Justice (DOJ),
represented herein by its prosecutors, public respondents, a complaint
charging the above-named officers and members of the SCB Board of
Directors and other SCB officials, private respondents, with
syndicated estafa, docketed as I.S. No. 2003-1059.
For their part, private respondents filed the following as counter-charges
against petitioner: (1) blackmail and extortion, docketed as I.S. No. 2003-
1059-A; and blackmail and perjury, docketed as I.S. No. 2003-1278.
On September 29, 2003, petitioner also filed a complaint for perjury
against private respondents Paul Simon Morris and Marivel Gonzales,
docketed as I.S. No. 2003-1278-A.
On December 4, 2003, the SEC issued a Cease and Desist Order against SCB
restraining it from further offering, soliciting, or otherwise selling its
securities to the public until these have been registered with the SEC.
Subsequently, the SEC and SCB reached an amicable settlement.
On January 20, 2004, the SEC lifted its Cease and Desist Order and
approved the P7 million settlement offered by SCB. Thereupon, SCB made
a commitment not to offer or sell securities without prior compliance with
the requirements of the SEC.
On February 7, 2004, petitioner filed with the DOJ a complaint for violation
of Section 8.1[9] of the Securities Regulation Code against private
respondents, docketed as I.S. No. 2004-229.
On February 23, 2004, the DOJ rendered its Joint Resolution[10] dismissing
petitioners complaint for syndicated estafa in I.S. No. 2003-1059; private
respondents complaint for blackmail and extortion in I.S. No. 2003-1059-A;
private respondents complaint for blackmail and perjury in I.S. No. 2003-
1278; and petitioners complaint for perjury against private respondents
Morris and Gonzales in I.S. No. 2003-1278-A.
Meanwhile, in a Resolution[11] dated April 4, 2004, the DOJ dismissed
petitioners complaint in I.S. No. 2004-229 (violation of Securities
Regulation Code), holding that it should have been filed with the SEC.
Petitioners motions to dismiss his complaints were denied by the
DOJ. Thus, he filed with the Court of Appeals a petition for certiorari,
docketed as CA-G.R. SP No. 85078. He alleged that the DOJ acted with
grave abuse of discretion amounting to lack or excess of jurisdiction in
dismissing his complaint for syndicated estafa.
He also filed with the Court of Appeals a separate petition for certiorari
assailing the DOJ Resolution dismissing I.S. No. 2004-229 for violation of
the Securities Regulation Code. This petition was docketed as CA-
G.R. SP No. 87328. Petitioner claimed that the DOJ acted with grave abuse
of discretion tantamount to lack or excess of jurisdiction in holding that the
complaint should have been filed with the SEC.
On January 7, 2005, the Court of Appeals promulgated its Decision
dismissing the petition. It sustained the ruling of the DOJ that the case
should have been filed initially with the SEC.
Petitioner filed a motion for reconsideration but it was denied in a
Resolution dated May 27, 2005.
Meanwhile, on February 21, 2005, the Court of Appeals rendered its
Decision in CA-G.R. SP No. 85078 (involving petitioners charges and
respondents counter charges) dismissing the petition on the ground that
the purpose of a petition for certiorari is not to evaluate and weigh the
parties evidence but to determine whether the assailed Resolution of the
DOJ was issued with grave abuse of discretion tantamount to lack of
jurisdiction. Again, petitioner moved for a reconsideration but it was
denied in a Resolution of November 22, 2005.

Hence, the instant petitions for review on certiorari.
For our resolution is the fundamental issue of whether the Court of
Appeals erred in concluding that the DOJ did not commit grave abuse of
discretion in dismissing petitioners complaint in I.S. 2004-229 for violation
of Securities Regulation Code and his complaint in I.S. No. 2003-1059 for
syndicated estafa.
G.R. No 168380
Re: I.S. No. 2004-229
For violation of the Securities Regulation Code
Section 53.1 of the Securities Regulation Code provides:
SEC. 53. Investigations, Injunctions and
Prosecution of Offenses.
53. 1. The Commission may, in its discretion,
make such investigation as it deems necessary to
determine whether any person has violated or is
about to violate any provision of this Code, any
rule, regulation or order thereunder, or any rule
of an Exchange, registered securities association,
clearing agency, other self-regulatory
organization, and may require or permit any
person to file with it a statement in writing, under
oath or otherwise, as the Commission shall
determine, as to all facts and circumstances
concerning the matter to be investigated. The
Commission may publish information concerning
any such violations and to investigate any fact,
condition, practice or matter which it may deem
necessary or proper to aid in the enforcement of
the provisions of this Code, in the prescribing of
rules and regulations thereunder, or in securing
information to serve as a basis for recommending
further legislation concerning the matters to
which this Code relates: Provided, however, That
any person requested or subpoenaed to produce
documents or testify in any investigation shall
simultaneously be notified in writing of the
purpose of such investigation: Provided,
further, That all criminal complaints for
violations of this Code and the implementing
rules and regulations enforced or administered
by the Commission shall be referred to the
Department of Justice for preliminary
investigation and prosecution before the proper
court: Provided, furthermore, That in instances
where the law allows independent civil or
criminal proceedings of violations arising from the
act, the Commission shall take appropriate action
to implement the same: Provided, finally; That
the investigation, prosecution, and trial of such
cases shall be given priority.
The Court of Appeals held that under the above provision, a criminal
complaint for violation of any law or rule administered by the SEC must
first be filed with the latter. If the Commission finds that there is probable
CRIMINAL PROCEDURE RULE 110
cause, then it should refer the case to the DOJ. Since petitioner failed to
comply with the foregoing procedural requirement, the DOJ did not
gravely abuse its discretion in dismissing his complaint in I.S. No. 2004-229.
A criminal charge for violation of the Securities Regulation Code is a
specialized dispute. Hence, it must first be referred to an administrative
agency of special competence, i.e., the SEC. Under the doctrine of primary
jurisdiction, courts will not determine a controversy involving a question
within the jurisdiction of the administrative tribunal, where the question
demands the exercise of sound administrative discretion requiring the
specialized knowledge and expertise of said administrative tribunal to
determine technical and intricate matters of fact.[12] The Securities
Regulation Code is a special law. Its enforcement is particularly vested in
the SEC. Hence, all complaints for any violation of the Code and its
implementing rules and regulations should be filed with the SEC. Where
the complaint is criminal in nature, the SEC shall indorse the complaint to
the DOJ for preliminary investigation and prosecution as provided in
Section 53.1 earlier quoted.
We thus agree with the Court of Appeals that petitioner
committed a fatal procedural lapse when he filed his criminal complaint
directly with the DOJ. Verily, no grave abuse of discretion can be ascribed
to the DOJ in dismissing petitioners complaint.
G.R. No. 170602
Re: I.S. No. 2003-1059 for
Syndicated Estafa
Section 5, Rule 110 of the 2000 Rules of Criminal Procedure, as amended,
provides that all criminal actions, commenced by either a complaint or an
information, shall be prosecuted under the direction and control of a
public prosecutor. This mandate is founded on the theory that a crime is a
breach of the security and peace of the people at large, an outrage against
the very sovereignty of the State. It follows that a representative of the
State shall direct and control the prosecution of the offense.[13] This
representative of the State is the public prosecutor, whom this Court
described in the old case of Suarez v. Platon,[14]as:
[T]he representative not of an ordinary party to a
controversy, but of a sovereignty whose
obligation to govern impartially is as compelling
as its obligation to govern at all; and whose
interest, therefore, in a criminal prosecution is
not that it shall win a case, but that justice shall
be done. As such, he is in a peculiar and very
definite sense a servant of the law, the twofold
aim of which is that guilt shall not escape or
innocence suffers.
Concomitant with his authority and power to control the prosecution of
criminal offenses, the public prosecutor is vested with the discretionary
power to determine whether a prima facie case exists or not.[15]This is
done through a preliminary investigation designed to secure the
respondent from hasty, malicious and oppressive prosecution. A
preliminary investigation is essentially an inquiry to determine whether (a)
a crime has been committed; and (b) whether there is probable cause that
the accused is guilty thereof.[16] In Pontejos v. Office of the
Ombudsman,[17] probable cause is defined as such facts and circumstances
that would engender a well-founded belief that a crime has been
committed and that the respondent is probably guilty thereof and should
be held for trial. It is the public prosecutor who determines during the
preliminary investigation whether probable cause exists. Thus, the decision
whether or not to dismiss the criminal complaint against the accused
depends on the sound discretion of the prosecutor.
Given this latitude and authority granted by law to the investigating
prosecutor, the rule in this jurisdiction is that courts will not interfere
with the conduct of preliminary investigations or reinvestigations or in
the determination of what constitutes sufficient probable cause for the
filing of the corresponding information against an offender.[18] Courts are
not empowered to substitute their own judgment for that of the executive
branch.[19] Differently stated, as the matter of whether to prosecute or not
is purely discretionary on his part, courts cannot compel a public
prosecutor to file the corresponding information, upon a complaint, where
he finds the evidence before him insufficient to warrant the filing of an
action in court. In sum, the prosecutors findings on the existence of
probable cause are not subject to review by the courts, unless these are
patently shown to have been made with grave abuse of discretion.[20]
Grave abuse of discretion is such capricious and whimsical exercise of
judgment on the part of the public officer concerned which is equivalent to
an excess or lack of jurisdiction. The abuse of discretion must be as patent
and gross as to amount to an evasion of a positive duty or a virtual refusal
to perform a duty enjoined by law, or to act at all in contemplation of law,
as where the power is exercised in an arbitrary and despotic manner by
reason of passion or hostility.[21]
In determining whether the DOJ committed grave abuse of discretion, it is
expedient to know if the findings of fact of herein public prosecutors were
reached in an arbitrary or despotic manner.
The Court of Appeals held that petitioners evidence is insufficient to
establish probable cause for syndicated estafa. There is no showing from
the record that private respondents herein did induce petitioner by false
representations to invest in the GTPMF securities. Nor did they act as a
syndicate to misappropriate his money for their own benefit. Rather, they
invested it in accordance with his written instructions. That he lost his
investment is not their fault since it was highly speculative.
Records show that public respondents examined petitioners evidence with
care, well aware of their duty to prevent material damage to his
constitutional right to liberty and fair play. In Suarez previously cited, this
Court made it clear that a public prosecutors duty is two-fold. On one
hand, he is bound by his oath of office to prosecute persons where the
complainants evidence is ample and sufficient to show primafacie guilt of a
crime. Yet, on the other hand, he is likewise duty-bound to protect
innocent persons from groundless, false, or malicious prosecution.[22]
Hence, we hold that the Court of Appeals was correct in
dismissing the petition for review against private respondents and in
concluding that the DOJ did not act with grave abuse of discretion
tantamount to lack or excess of jurisdiction.
On petitioners complaint for violation of the Securities
Regulation Code, suffice it to state that, as aptly declared by the Court of
Appeals, he should have filed it with the SEC, not the DOJ. Again, there is
 CRIMINAL PROCEDURE RULE 110
no indication here that in dismissing petitioners complaint, the DOJ acted [G.R. No. 138596. October 12, 2000]
capriciously or arbitrarily.
SR. FIDELIS ARAMBULO, petitioner, vs. HON. HILARION LAQUI, SR. HELEN
WHEREFORE, we DENY the petitions and AFFIRM the assailed Decisions OJARIO and SR. BERNADINE JUAREZ, respondents.
of the Court of Appeals in CA-G.R. SP No. 87328 and in CA-G.R. SP No. DECISION
85078. GONZAGA-REYES, J.:
Costs against petitioner. Before us is a Petition for Review on Certiorari of the Decision[1] of the
Court of Appeals[2] in CA-G.R. SP No. 47089 promulgated on March 01,
SO ORDERED. 1999 and the subsequent Resolution[3]dated May 11, 1999 denying
petitioners Motion for Reconsideration.
The facts of the case, as summarized by the appellate court, are as follows:
On February 2, 1994, private respondents filed a joint complaint-affidavit
for libel against petitioners before the Office of the City Prosecutor of
Quezon City alleging that the latter circulated on December 21, 1993 a
letter containing malicious imputations against them.
An information for libel then was filed before the Metropolitan Trial Court
of Quezon City on May 18, 1994.
After the prosecution presented its evidence, petitioner filed a Demurrer
to Evidence. Without resolving the incident, the Metropolitan Trial Court in
its Order dated November 9, 1996 ruled that it had no jurisdiction over the
case as the same falls under the original and exclusive jurisdiction of the
Regional Trial Court, and ordered that the case be forwarded to the RTC
for further proceedings.
On November 29, 1996, the case was forwarded to branch 215 Regional
Trial Court of Quezon City docketed as Criminal Case No. 96-6870.
On January 3, 1997, petitioner filed a Motion to Dismiss on the ground of
lack of jurisdiction and prescription of the offense of Libel. The RTC
dismissed the case in an Order dated April 2, 1997 but, stating that the
offense had not yet prescribed, ordered the City Prosecutor of Quezon City
to re-file the Information for Libel with the RTC.
On April 27, 1997, the Information for Libel was re-filed with respondent
court docketed as Criminal Case No. Q-97-70948.
On June 17, 1997, petitioner filed a Motion to quash on the ground of
prescription. The motion was denied in the assailed Resolution dated
October 3, 1997.
Petitioners Motion for Reconsideration was also denied in the other
Assailed Order dated December 4, 1997.[4]
Not satisfied with the Resolution and Order of the trial court, herein
petitioner appealed to the Court of Appeals raising the issue of whether or
not public respondent committed grave abuse of discretion or grossly
erred in holding that the offense of libel in the instant case has not yet
prescribed.[5] The Court of Appeals, in its decision dated March 01, 1999,
upheld the contention of the trial court that the offense of libel had not
yet prescribed and consequently, dismissed the said petition. The appellate
court likewise denied herein petitioners Motion for Reconsideration in its
Resolution dated May 11, 1999.[6]
Petitioner is now before this Court seeking a reversal of the decision of the
Court of Appeals and contending that -
I.
THE COURT OF APPEALS ERRED IN RULING THAT THE CRIME OF LIBEL HAS
NOT YET PRESCRIBED.
II.
THE COURT OF APPEALS ERRED IN RULING THAT PETITIONER HAS NOT
BEEN DENIED HER CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL.[7]
Under Article 90 of the Revised Penal Code, as amended, the crime of libel
prescribes in one (1) year, to wit:
ART. 90. Prescription of crime.- Crimes punishable by death, reclusion
perpetua or reclusion temporal shall prescribe in twenty years.
Crimes punishable by other afflictive penalties shall prescribe in fifteen
years.
Those punishable by a correctional penalty shall prescribe in 10 years; with
the exception of those punishable by arresto mayor, which shall prescribe
in five years.
The crime of libel or other similar offenses shall prescribe in one year.
(underscoring supplied)
The said prescriptive period is computed under Article 91 of the Revised
Penal Code, as follows:
Art. 91. Computation of prescription of offenses. - The period of
prescription shall commence to run from the day on which the crime is
discovered by the offended party, the authorities, or their agents, and shall
be interrupted by the filing of the complaint or information, and shall
proceed to run again when such proceedings terminate without the
accused being convicted or acquitted, or are unjustifiably stopped for any
reason not imputable to him.
The term of prescription shall not run when the offender is absent from
the Philippine Archipelago.
In the case at bench, the offense of libel allegedly occurred on December
21, 1993 when petitioner circulated a letter containing allegedly malicious
imputations against private respondents Srs. Helen Ojario and Bernadine
Juarez. At this point, the period of prescription for the alleged crime had
already started to run.
The one-year period of prescription for the crime was interrupted on
February 2, 1994 when respondents filed a joint complaint-affidavit[8] for
libel against petitioner before the Office of the city Prosecutor in Quezon
city. At this point, the prescription period had already run for forty-two
(42) days.
A preliminary investigation by the Office of the City prosecutor was thus
conducted. On April 27, 1994, Asst. City Prosecutor Ma. Aurora Escasa-
Ramos issued a Resolution stating that probable cause exists against

petitioner and recommended the filing of an information for libel against
her. Consequently, an information[9] for libel was filed against petitioner
on May 18, 1994 before the Metropolitan Trial Court of Quezon City,
Branch 32[10]
Despite the fact that the Metropolitan Trial Court had no jurisdiction over
the crime of libel, the said court proceeded to conduct trial on the merits.
After the prosecution had rested, petitioner filed a Demurrer to Evidence
dated September 18, 1996. However, instead of acting on the said
demurrer, the Metropolitan Trial court, on November 08, 1996, issued an
Order[11] ruling that it had no jurisdiction over the crime of libel as the
same falls under the exclusive jurisdiction of the Regional Trial Court.
Instead of dismissing the case outright, the MTC ordered the forwarding of
the records of the case to the Regional Trial Court for further proceedings.
The case was eventually raffled off to Branch 215 of the Regional Trial
Court of Quezon City[12]
On the basis of a Motion to Dismiss[13] filed by petitioner, Branch 215 of
the Regional Trial Court dismissed the case on April 2, 1997 on the ground
of lack of jurisdiction as the information against petitioner should have
been re-filed anew. The court ruled, however, that the crime had not yet
prescribed and ordered the re-filling of the case[14]. On April 27, 1997, the
Office of the City Prosecutor re-filed the case with the Regional Trial Court
and eventually the same was raffled to Branch 218 of the said court[15].
Petitioner tried to have this case dismissed on the ground of prescription
but her motion to quash[16]the information was denied by Branch 218 of
the Quezon City Regional Trial Court in a Resolution[17]dated October 3,
1997. The denial by the Regional Trial Court of petitioners motion to quash
was subsequently upheld by the Court of Appeals.
It is the contention of petitioner that the prescription period for the crime
of libel charged against her commenced to run again when the Assistant
City prosecutor recommended the filing of the information for libel.
Petitioner further argues that the prescriptive period could have been
interrupted again had the information been filed with the Regional Trial
Court, the court with the proper jurisdiction to try the case for libel.
Considering however that the case was filed before the Metropolitan Trial
Court, which under the law does not have jurisdiction over the crime of
libel, the period of prescription continued to run its course. Consequently,
petitioner concludes that when the information for libel was finally filed
with the Regional Trial Court, the crime had already prescribed and the
State can no longer pursue the case against her.
In support of her arguments, petitioner questions the reliance made by the
Regional Trial Court and the Court of Appeals in the landmark case of
People vs. Olarte[18]Petitioner submits that the adherence to the Olarte
case must be examined considering that in the said case, the principal
issue was whether or not the filing of a complaint in the Municipal Trial
Court for purposes of preliminary investigation, interrupts the period of
prescription of a crime. Petitioner argues that the cited case is inapplicable
as it is not disputed in the case at bench that the period of prescription
was interrupted during the process of preliminary investigation.
We are not persuaded.
In the landmark case of People vs. Olarte, this Court speaking through
Justice J.B.L. Reyes, finally resolved the then conflicting views as to
whether or not the filing of a complaint with the Municipal Trial Court for
CRIMINAL PROCEDURE RULE 110
purposes of preliminary investigation suspends the running of the
prescriptive period for the crime. The Court restated the correct and
prevailing doctrine, as follows:
In view of this diversity of precedents, and in order to provide guidance for
the Bench and Bar, this Court has reexamined the question and, after
mature consideration, has arrived at the conclusion that the true doctrine
is, and should be, the one established by the decisions holding that the
filing of the complaint with the Municipal Court, even if it be merely for
purposes of preliminary examination or investigation, should, and does,
interrupt the period of prescription of the criminal responsibility, even if
the court where the complaint or information is filed can not try the case
on the merits. Several reasons buttress this conclusion: first, the text of
Article 91 of the Revised Penal code, in declaring that the period of
prescription shall be interrupted by the filing of the complaint or
information without distinguishing whether the complaint is filed in the
court for preliminary examination or investigation merely, or for action on
the merits. Second , even if the court where the complaint or information
is filed may only proceed to investigate the case, its actuations already
represent the initial step of the proceedings against the offender. Third, it
is unjust to deprive the injured party the right to obtain vindication on
account of delays that are not under his control. All that the victim of the
offense may do on his part to initiate the prosecution is to file the requisite
complaint.
And it is no argument that Article 91 also expresses that the interrupted
prescription shall commence to run again when such proceedings
terminate without the accused being convicted or acquitted, thereby
indicating that the court in which the complaint or information is filed
must have the power to convict or acquit the accused. Precisely, the trial
on the merits usually terminates in conviction or acquittal, not otherwise.
But it is in the court conducting a preliminary investigation where the
proceedings may terminate without conviction or acquittal, if the court
should discharge the accused because no prima facie case had been
shown.
Subsequently, this Court, in Francisco vs. Court of Appeals[19], broadened
the scope of Olarte by holding that the filing of the complaint with the
fiscals office also suspends the running of the prescriptive period.
Petitioner insists that the ruling in Olarte with respect to the interruption
of the prescriptive period is not applicable. In the case at bench, the fact
that the period of prescription was interrupted by the filing of private
respondents joint affidavit with the Quezon City Prosecutors Office is not
disputed. The Olarte case, however, makes several other pronouncements
that are determinative of the issues raised by petitioner.
It is clear from the Olarte case that the filing of the complaint or
information for purposes of preliminary investigation represents the initial
step of the proceedings against the offender. This is one of the reasons
why such filing is deemed as having interrupted the period of prescription
for the prosecution of a crime. This period of prescription commences to
run again when the proceedings terminate without conviction or acquittal,
if the court (or prosecutor) should discharge the accused because no prima
facie case has been shown.[20]
It is thus evident that petitioners first premise that the period of
prescription commenced to run again when the Quezon City prosecutors
Office recommended the filing of a criminal complaint against her is
incorrect. When the City Prosecutor recommended the filing of libel
charges against petitioner, the proceedings against her were not
terminated, precisely because a prima facie case for libel was found
against her. Instead of terminating the proceedings against petitioner, the
resolution of the city prosecutor actually directed the continuation of the
proceedings against the petitioner by the filing of the appropriate
information against her and by the holding of trial on the merits. As such,
when the information for libel was filed with the Metropolitan Trial Court,
the period of prescription for the crime was still suspended.
Another important teaching in Olarte is that it is unjust to deprive the
injured party of the right to obtain vindication on account of delays that
are not under his control. This is because in criminal prosecutions, the only
thing that the victim of the offense may do on his part to initiate the
prosecution is to file the requisite complaint.
In the case at bench, private respondents were not remiss in their right to
seek grievance against respondent as they filed their complaint before the
city prosecutor forty-two days after the alleged crime of libel occurred. It
was the Office of the City Prosecutor that committed an error when it filed
the complaint with the Metropolitan Trial Court.
The error was probably due to the confusion as to the proper venue for the
crime of libel brought about by the passage of R.A. 7691[21] which took
effect on April 15, 1994. Under Section 2 of the said Republic Act, the
jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts and
Municipal Circuit Trial Courts was expanded to include all offenses
punishable with imprisonment not exceeding six (6) years. However, libel,
which is punishable by imprisonment ranging from six months and one day
to four years[22] is not covered as the said law excludes from its coverage
cases within the exclusive jurisdiction of the Regional Trial Courts[23].
Under Article 360 of the Revised Penal Code, the information for libel
should be filed with the Court of First Instance, now the Regional Trial
Court. The confusion was cleared up when this Court issued Administrative
Order No. 104-96 dated October 21, 1996 which categorically stated that
LIBEL CASES SHALL BE TRIED BY THE REGIONAL TRIAL COURTS HAVING
JURISDICTION OVER THEM TO THE EXCLUSION OF THE METROPOLITAN
TRIAL COURTS, MUNICIPAL TRIAL COURTS IN CITIES, MUNICIPAL TRIAL
COURTS AND MUNICIPAL CIRCUIT TRIAL COURTS.[24]
Evidently, branch 215 of the Metropolitan Trial Court of Quezon City was
not spared the confusion brought about by R.A. 7691, as its dismissal of
the case then pending before it was made only on November 8, 1996 or
more than two years after it had taken cognizance of the case. Notably,
the dismissal by the Metropolitan Trial Court took place a mere eighteen
(18) days after the issuance of S.C. Administrative Order No. 104-96.
The mistake of the Office of the City Prosecutor in filing the complaint and
of the Metropolitan Trial Court in taking cognizance of the case was thus
understandable. The error was immediately rectified by the said court
upon realizing its mistake when it ruled it was the Regional Trial Court
which had the proper jurisdiction over the case. This mistake should not
operate to prejudice the interest of the state to prosecute criminal
offenses and, more importantly, the right of the offended party to obtain
grievance.
 CRIMINAL PROCEDURE RULE 110
Moreover, the doctrine in People vs. Olarte, as applied in later cases, was Reconsideration with the Regional Trial Court of Quezon City, Branch 218. Republic of the Philippines Supreme Court
not meant to apply solely to cases where the filing of the complaint with As such, it is clear that petitioner is not without fault in the delay in the Baguio City
the municipal trial court or the prosecutors office operates to interrupt the prosecution of the case against her.
prescription period for the prosecution of a crime. THIRD DIVISION
Wherefore, the petition is hereby DENIED, and the decision of the Court of G.R. No. 168641
In People vs. Galano[25], an information was filed with the Batangas Appeals dated May 1, 1999 is hereby AFFIRMED. PEOPLE OF THE PHILIPPINES, Petitioner,
Regional Trial Court even though the evidence of both the prosecution and
defense shows that the crime was committed in Manila. This Court, SO ORDERED. Present:
applying People vs. Olarte, held that it was only when the trial court YNARES-SANTIAGO, J., Chairperson, AUSTRIA-MARTINEZ,
dismissed the case due to lack of jurisdiction that the proceedings therein - versus -
terminated without conviction and acquittal and it was only then that the CALLEJO, SR., CHICO-NAZARIO, and NACHURA, JJ.
prescriptive period (which was interrupted during the during the pendency
of the case in the Batangas Court) commenced to run again. Promulgated:
CLEMENTE BAUTISTA,
In People vs. Enrile[26], informations were filed against civilians before
military tribunals which had no jurisdiction over the persons of these Respondent.
civilians. These civilians questioned the re-filing of the cases against them April 27, 2007
before the civil courts raising, among others, that the crimes for which x------------------------------------------------x
they are being charged have already prescribed. This Court, applying by DECISION
analogy the ruling in the Olarte case, threw out the defense of prescription AUSTRIA-MARTINEZ, J.:
and held that the filing of the first indictments suspended the running of
the prescriptive period, and the prosecutions under the informations to be Before us is a Petition for Review on Certiorari filed by the People of the
filed should be regarded as mere continuations of the previous Philippines assailing the Decision[1] of the Court of Appeals (CA) dated
proceedings. At the very least, the Court ruled, the filing of the first June 22, 2005 in CA-G.R. SP No. 72784, reversing the Order of the Regional
charges should be considered as having interrupted the prescriptive period Trial Court (RTC), Branch 19, Manila and dismissing the criminal case for
notwithstanding the lack of jurisdiction of the military tribunal in which slight physical injuries against respondent on the ground that the offense
they were filed. charged had already prescribed.

More recently, in the case of Reodica vs. Court of Appeals[27], an The undisputed facts are as follows.
information for reckless imprudence resulting in damage to property with
slight physical injuries was filed with the Regional Trial Court even though On June 12, 1999, a dispute arose between respondent and his co-accused
the offense was within the exclusive jurisdiction of the municipal trial Leonida Bautista, on one hand, and private complainant Felipe Goyena, Jr.,
court. The Court, even as it dismissed the cases pending before the on the other.
Regional Trial Court for lack of jurisdiction, disregarded the defense of
prescription raised by the accused. The Court, citing Olarte and the Private complainant filed a Complaint with the Office of the Barangay of
subsequent cases of Francisco vs. Court of Appeals[28] and People vs. Malate, Manila, but no settlement was reached. The barangay chairman
Cuaresma[29], ruled that the prescriptive period for the quasi offenses in then issued a Certification to file action dated August 11, 1999.[2]
question was interrupted by the filing of the complaint with the fiscals
office three days after the vehicular mishap and remained tolled pending On August 16, 1999, private complainant filed with the Office of the City
the termination of the case. Prosecutor (OCP) a Complaint for slight physical injuries against herein
respondent and his co-accused. After conducting the preliminary
From these cases, it is clear that the Apellate Court committed no investigation, Prosecutor Jessica Junsay-Ong issued a Joint Resolution
reversible error in ruling that the offense of libel charged against petitioner dated November 8, 1999 recommending the filing of an Information
had not yet prescribed. The period of prescription for the crime was against herein respondent. Such recommendation was approved by the
interrupted when the complaint was lodged with the Office of the City City Prosecutor, represented by First Assistant City Prosecutor Eufrocino A.
Prosecutor and remained tolled pending the termination of the case Sulla, but the date of such approval cannot be found in the records. The
against petitioner. Branch 218 of the Regional Trial Court of Quezon City, Information was, however, filed with the Metropolitan Trial Court (MeTC)
therefore, correctly assumed jurisdiction over the case of petitioner as the of Manila, Branch 28 only on June 20, 2000.
offense of libel for which she was being charged has not yet prescribed.
Respondent sought the dismissal of the case against him on the ground
Petitioners other argument that she has been denied her right to a speedy that by the time the Information was filed, the 60-day period of
trial deserves scant consideration. Well-established is the doctrine that the prescription from the date of the commission of the crime, that is, on June
right to a speedy trial is violated only where there is an unreasonable, 12, 1999 had already elapsed. The MeTC ruled that the offense had not yet
vexatious and oppressive delay without participation or fault of the prescribed.
accused, or when unjustified postponements are sought which prolong the Respondent elevated the issue to the RTC via a Petition for Certiorari, but
trial for an unreasonable length of time[30]. In the case at bench, besides the RTC denied said petition and concurred with the opinion of the MeTC.
the filing of the petitions before the Court of Appeals and this Court,
petitioner had likewise filed a Motion to Quash and a Motion for

Respondent then filed a Petition for Certiorari with the CA. On June 22,
2005, the CA rendered its Decision wherein it held that, indeed, the 60-day
prescriptive period was interrupted when the offended party filed a
Complaint with the OCP of Manila on August 16, 1999. Nevertheless, the
CA concluded that the offense had prescribed by the time the Information
was filed with the MeTC, reasoning as follows:
In the case on hand, although the approval of the Joint Resolution of ACP
Junsay-Ong bears no date, it effectively terminated the proceedings at the
OCP. Hence, even if the 10-day period for the CP or ACP Sulla, his
designated alter ego, to act on the resolution is extended up to the utmost
limit, it ought not have been taken as late as the last day of the year 1999.
Yet, the information was filed with the MeTC only on June 20, 2000, or
already nearly six (6) months into the next year. To use once again the
language of Article 91 of the RPC, the proceedings at the CPO was
unjustifiably stopped for any reason not imputable to him (the accused) for
a time very much more than the prescriptive period of only two (2)
months. The offense charged had, therefore, already prescribed when filed
with the court on June 20, 2000. x x x[3] (Emphasis supplied)
The dispositive portion of the assailed CA Decision reads as follows:
WHEREFORE, we hereby REVERSE and SET ASIDE the appealed Orders of
both courts below and Criminal Case No. 344030-CR, entitled: People of
the Philippines, Plaintiff, -versus- Clemente Bautista and Leonida Bautista,
Accused, is ordered DISMISSED. Costs de oficio.
SO ORDERED.[4]
Petitioner now comes before this Court seeking the reversal of the
foregoing CA Decision. The Court gives due course to the petition
notwithstanding the fact that petitioner did not file a Motion for
Reconsideration of the decision of the CA before the filing of herein
petition. It is not a condition sine qua non for the filing of a petition for
review under Rule 45 of the Rules of Court.[5]
The Court finds merit in the petition.
It is not disputed that the filing of the Complaint with the OCP effectively
interrupted the running of the 60-day prescriptive period for instituting the
criminal action for slight physical injuries. However, the sole issue for
resolution in this case is whether the prescriptive period began to run
anew after the investigating prosecutors recommendation to file the
proper criminal information against respondent was approved by the City
Prosecutor.
The answer is in the negative.
Article 91 of the Revised Penal Code provides thus:
Art. 91. Computation of prescription of offenses. - The period of
prescription shall commence to run from the day on which the crime is
discovered by the offended party, the authorities, or their agents, and shall
be interrupted by the filing of the complaint or information, and shall
commence to run again when such proceedings terminate without the
accused being convicted or acquitted, or are unjustifiably stopped for any
reason not imputable to him.
CRIMINAL PROCEDURE RULE 110
The term of prescription shall not run when the offender is absent from
the Philipppine Archipelago. (Emphasis supplied)
The CA and respondent are of the view that upon approval of the
investigating prosecutor's recommendation for the filing of an information
against respondent, the period of prescription began to run again. The
Court does not agree. It is a well-settled rule that the filing of the
complaint with the fiscals office suspends the running of the prescriptive
period.[6]
The proceedings against respondent was not terminated upon the City
Prosecutor's approval of the investigating prosecutor's recommendation
that an information be filed with the court. The prescriptive period
remains tolled from the time the complaint was filed with the Office of the
Prosecutor until such time that respondent is either convicted or acquitted
by the proper court.
The Office of the Prosecutor miserably incurred some delay in filing the
information but such mistake or negligence should not unduly prejudice
the interests of the State and the offended party. As held in People v.
Olarte,[7] it is unjust to deprive the injured party of the right to obtain
vindication on account of delays that are not under his control. All that the
victim of the offense may do on his part to initiate the prosecution is to file
the requisite complaint.[8]
The constitutional right of the accused to a speedy trial cannot be invoked
by the petitioner in the present petition considering that the delay
occurred not in the conduct of preliminary investigation or trial in court
but in the filing of the Information after the City Prosecutor had approved
the recommendation of the investigating prosecutor to file the
information.
The Office of the Solicitor General does not offer any explanation as to the
delay in the filing of the information. The Court will not be made as an
unwitting tool in the deprivation of the right of the offended party to
vindicate a wrong purportedly inflicted on him by the mere expediency of
a prosecutor not filing the proper information in due time.
The Court will not tolerate the prosecutors apparent lack of a sense of
urgency in fulfilling their mandate. Under the circumstances, the more
appropriate course of action should be the filing of an administrative
disciplinary action against the erring public officials.
WHEREFORE, the Petition is hereby GRANTED. The Decision of the Court of
Appeals in CA-G.R. SP No. 72784 is hereby REVERSED and SET ASIDE and
the Decision of the Regional Trial Court of Manila in Civil Case No. 02-
103990 is hereby REINSTATED.
Let the Secretary of the Department of Justice be furnished a copy of
herein Decision for appropriate action against the erring officials.
SO ORDERED.
EN BANC
[G.R. No. 69863-65 : December 10, 1990.]
192 SCRA 183
LINO BROCKA, BENJAMIN CERVANTES, COSME GARCIA, RODOLFO
SANTOS, VALENTINO SALIPSIP, RICARDO VEGA, ERIC MARIANO, JOSE
EMMANUEL OYALES, RONNIE MATTA, ALFREDO VIAJE, RUBEN EUGENIO,
REYNALDO ORTIZ, ORLANDO ORTIZ, NOEL REYES, EDUARDO IMPERIAL,
NESTOR SARMIENTO, FRANCO PALISOC, VIRGILIO DE GUZMAN, ALBERTO
REYES, JESSIE PINILI, ROMULO AUGUIS, DOMINADOR RESURRECION III,
RONNIE LAYGO, ROSAURO ROQUE, CLARENCE SORIANO, OCTAVO
DEPAWA, CARLITO LA TORRE, SEVERNO ILANO, JR., DOMINGO CAJIPE,
ALAN ALEGRE, RAMON MARTINEZ, MA. GILDA HERNANDEZ, EDNA P.
VILLANUEVA, DOLLY S. CANU, MELQUIADES C. ATIENZA, ELIGIO P. VERA
CRUZ, ROGER C. BAGAN, ABUNDIO M. CALISTE, Petitioners, vs. JUAN
PONCE ENRILE, MAJ. GENERAL FIDEL V. RAMOS, BRIG. GENERAL PEDRO
BALBANERO, COL. ABAD, COL. DAWIS, SERGIO APOSTOL, P/LT, RODOLFO
M. GARCIA and JUDGE RICARDO TENSUAN, Respondents.
DECISION
MEDIALDEA, J.:
This petition was originally filed on February 13, 1985 to secure the release
of petitioners on habeas corpus and to permanently enjoin the City Fiscal
of Quezon City from investigating charges of "Inciting to Sedition" against
petitioners Lino Brocka, Benjamin Cervantes, Cosme Garcia and Rodolfo
Santos, (hereafter Brocka, et al.). On learning that the corresponding
informations for this offense has been filed by the City Fiscal against them
on February 11, 1985, a supplemental petition was filed on February 19,
1985 (p. 51, Rollo) to implead the Presiding Judge, 1 and to enjoin the
prosecution of Criminal Cases Nos. Q-38023, Q-38024 and Q-38025 (p.
349, Rollo) and the issuance of warrants for their arrests, including their
arraignment. Since then President Ferdinand E. Marcos had ordered the
provisional release of Brocka, et al., the issue on habeas corpus has
become moot and academic (p. 396, Rollo). We shall thus focus on the
question of whether or not the prosecution of the criminal cases for
Inciting to Sedition may lawfully be enjoined.:-cralaw
Petitioners were arrested on January 28, 1985 by elements of the Northern
Police District following the forcible and violent dispersal of a
demonstration held in sympathy with the jeepney strike called by the
Alliance of Concerned Transport Organization (ACTO). Thereafter, they
were charged with Illegal Assembly in Criminal Cases Nos. 37783, 37787
and 37788 with Branch 108, Regional Trial Court, NCJR, Quezon City. 2
Except for Brocka, et al. who were charged as leaders of the offense of
Illegal Assembly and for whom no bail was recommended, the other
petitioners were released on bail of P3,000.00 each. Brocka, et al.'s
provisional release was ordered only upon an urgent petition for bail for
which daily hearings from February 1-7, 1985 were held.
However, despite service of the order of release on February 9, 1985,
Brocka, et al. remained in detention, respondents having invoked a
Preventive Detention Action (PDA) allegedly issued against them on

January 28, 1985 (p. 6, Rollo). Neither the original, duplicate original nor
certified true copy of the PDA was ever shown to them (p. 367, Rollo).
Brocka, et al. were subsequently charged on February 11, 1985 with
Inciting to Sedition, docketed as Criminal Cases Nos. Q-38023, Q-38024
and Q-38025 (p. 349, Rollo), without prior notice to their counsel (p. 7,
Rollo). The original informations filed recommended no bail (p. 349, Rollo).
The circumstances surrounding the hasty filing of this second offense are
cited by Brocka, et al. (quoting from a separate petition filed on their
behalf in G.R. Nos. 69848-50 entitled "Sedfrey A. Ordoez vs. Col. Julian
Arzaga, et al."), as follows:
"x x x
"6. The sham' character of the inquest examination concocted by all
respondents is starkly bizarre when we consider that as early as 10:30 A.M.
today, February 11, 1985, Benjamin Cervantes was able to contact
undersigned petitioner by phone informing counsel that said Benjamin
Cervantes and the 4 other persons who are the subjects of this petition will
be brought before the Quezon City Fiscal at 2:30 for undisclosed reasons:
subsequently, another phone call was received by petitioning counsel
informing him that the appearance of Benjamin Cervantes et al. was to be
at 2:00 P.M. When petitioning counsel arrived in the office of Assistant City
Fiscal Arturo Tugonon, the complainants' affidavits had not yet been
received by any of the panel of three assistant city fiscals, although the five
persons under detention were already in the office of said assistant fiscal
as early as 2:00 P.M. It was only at 3:00 when a representative of the
military arrived bringing with him alleged statements of complainants
against Lino Broka (sic) et al. for alleged inciting to sedition, whereupon
undersigned counsel asked respondent Colonel Agapito Abad 'who
ordered the detained persons to be brought to the office of Assistant Fiscal
Arturo Tugonon since there were no charges on file;' and said Colonel
Agapito Abad said aloud: 'I only received a telephone call from Colonel
Arzaga about 11:00 A.M. to bring the detained persons today I am only
the custodian.' At 3:15, petitioning counsel inquired from the Records
Custodian when the charges against Lino Broka (sic) had been officially
received and he was informed that the said charges were never coursed
through the Records Office.
"7. Under the facts narrated above, respondents have conspired to use the
strong arm of the law and hatched the nefarious scheme to deprive Lino
Broka (sic) et al. the right to bail because the utterances allegedly
constituting inciting to sedition under Article 142 of the Revised Penal
Code are, except for varying nuances, almost verbatim the same
utterances which are the subject of Criminal Cases No. 37783, 37787 and
37788 and for which said detained persons are entitled to be released on
bail as a matter of constitutional right. Among the utterances allegedly
made by the accused and which the respondents claimed to be violative of
Article 142 of the Revised Penal Code are: 'Makiisa sa mga drivers,
"Makiisa sa aming layunin, "Digmaang bayan ang sagot sa kahirapan,' Itigil
ang pakikialam ng imperyalismo sa Pilipinas,' 'Rollback ng presyo ng langis
sa 95 Centavos.' (See Annex B)
"8. That when petitioning counsel and other members of the defense panel
requested that they be given 7 days within which said counsel may confer
with their clients the detained persons named above, the panel of
assistant fiscals demanded that said detained persons should sign a
'waiver' of their rights under Article 125 of the Revised Penal Code as a
CRIMINAL PROCEDURE RULE 110
condition for the grant of said request, which is a harassing requirement
considering that Lino Broka (sic) et al. were already under the detention,
albeit illegally, and they could not have waived the right under Rule 125
which they did not enjoy at the time the ruling was made by the panel of
assistant city fiscals." (pp. 4-6, Rollo in G.R. 69848-50).
They were released provisionally on February 14, 1985, on orders of then
President F. E. Marcos. The circumstances of their release are narrated in
Our resolution dated January 26, 1985, as quoted in the Solicitor General's
Manifestation as follows:
"G.R. Nos. 69848-50 (Sedfrey A. Ordoez, Petitioner, vs. Col. Julian Arzaga,
et al., Respondents). Petitioner Sedfrey A. Ordoez filed this petition for
habeas corpus in behalf of Lino Brocka, Benjamin Cervantes, Cosme Garcia,
Alexander Luzano, and Rodolfo Santos, who were all detained under a
Preventive Detention Action (PDA) issued by then President Ferdinand E.
Marcos on January 28, 1985. They were charged in three separate
informations of the crime of illegal assembly under Art. 146, paragraph 3
of the Revised Penal Code, as amended by PD 1834. On February 7, 1985,
the Honorable Miriam Defensor Santiago, Regional Trial Judge of Quezon
City, issued a resolution in the above criminal cases, directing the release
of the five accused on bail of P6,000.00 for each of them, and from which
resolution the respondent fiscals took no appeal. Immediately thereafter,
the accused filed their respective bail bonds. This notwithstanding, they
continued to be held in detention by order of the respondent colonels; and
on February 11, 1985, these same accused were 'reinvestigated,' this time
on charges of 'inciting to sedition' ** under Art. 142 of the Revised Penal
Code, following which corresponding cases were filed. The respondents
complied with Our resolution requiring them, inter alia, to make a RETURN
of the writ of habeas corpus. In their RETURN, it appeared that all the
accused had already been released, four of them on February 15, 1985 and
one February 8, 1985. The petitioner, nevertheless, argued that the
petition has not become moot and academic because the accused
continue to be in the custody of the law under an invalid charge of inciting
to sedition." (p. 395, Rollo).
Hence, this petition.
Brocka, et al. contend that respondents' manifest bad faith and/or
harassment are sufficient bases for enjoining their criminal prosecution,
aside from the fact that the second offense of inciting to sedition is illegal,
since it is premised on one and the same act of attending and participating
in the ACTO jeepney strike. They maintain that while there may be a
complex crime from a single act (Art. 48, RTC), the law does not allow the
splitting of a single act into two offenses and filing two informations
therefor, further, that they will be placed in double jeopardy.
The primary issue here is the legality of enjoining the criminal prosecution
of a case, since the two other issues raised by Brocka, et al. are matters of
defense against the sedition charge.
We rule in favor of Brocka, et al. and enjoin their criminal prosecution for
the second offense of inciting to sedition.
Indeed, the general rule is that criminal prosecution may not be restrained
or stayed by injunction, preliminary or final. There are however exceptions,
among which are:
"a. To afford adequate protection to the constitutional rights of the
accused (Hernandez vs. Albano, et al., L-19272, January 25, 1967, 19 SCRA
95);
"b. When necessary for the orderly administration of justice or to avoid
oppression or multiplicity of actions (Dimayuga, et al. vs. Fernandez, 43
Phil. 304; Hernandez vs. Albano, supra; Fortun vs. Labang, et al., L-38383,
May 27, 1981, 104 SCRA 607);
"c. When there is a pre-judicial question which is sub judice (De Leon vs.
Mabanag, 70 Phil. 202);
"d. When the acts of the officer are without or in excess of authority
(Planas vs. Gil, 67 Phil. 62);
"e. Where the prosecution is under an invalid law, ordinance or regulation
(Young vs. Rafferty, 33 Phil. 556; Yu Cong Eng vs. Trinidad, 47 Phil. 385,
389);
"f. When double jeopardy is clearly apparent (Sangalang vs. People and
Avendia, 109 Phil. 1140);
"g. Where the court has no jurisdiction over the offense (Lopez vs. City
Judge, L-25795, October 29, 1966, 18 SCRA 616);
"h. Where it is a case of persecution rather than prosecution (Rustia vs.
Ocampo, CA-G.R. No. 4760, March 25, 1960);
"i. Where the charges are manifestly false and motivated by the lust for
vengeance (Recto vs. Castelo, 18 L.J. [1953], cited in Raoa vs. Alvendia,
CA-G.R. No. 30720-R, October 8, 1962; Cf, Guingona, et al vs. City Fiscal, L-
60033, April 4, 1984, 128 SCRA 577); and
"j. When there is clearly no prima facie case against the accused and a
motion to quash on that ground has been denied (Salonga vs. Pao, et al.,
L-59524, February 18, 1985, 134 SCRA 438).
"7. Preliminary injunction has been issued by the Supreme Court to
prevent the threatened unlawful arrest of petitioners (Rodriguez vs.
Castelo, L-6374, August 1, 1958)." (cited in Regalado, Remedial Law
Compendium, p. 188, 1988 Ed.)
In the petition before Us, Brocka, et al. have cited the circumstances to
show that the criminal proceedings had become a case of persecution,
having been undertaken by state officials in bad faith.: nad
Respondents, on the other hand, had invoked a PDA in refusing Brocka, et
al.'s release from detention (before their release on orders of then Pres.
Marcos). This PDA was, however, issued on January 28, 1985, but was
invoked only on February 9, 1985 (upon receipt of the trial court's order of
release). Under the guidelines issued, PDAs shall be invoked within 24
hours (in Metro Manila) or 48 hours (outside Metro Manila). (Ilagan v.
Enrile, G.R. No. 70748, October 28, 1985, 139 SCRA 349). Noteworthy also
is Brocka, et al.'s claim that, despite subpoenas for its production, the
prosecution merely presented a purported xerox copy of the invoked PDA
(par. 4, Counter-Rejoinder, p. 367, Rollo).

The foregoing circumstances were not disputed by the Solicitor General's
office. In fact they found petitioner's plight "deplorable" (par. 51,
Manifestation, p. 396, Rollo).
The hasty filing of the second offense, premised on a spurious and
inoperational PDA, certainly betrays respondent's bad faith and malicious
intent to pursue criminal charges against Brocka, et al.
We have expressed Our view in the Ilagan case that "individuals against
whom PDAs have been issued should be furnished with the original, and
the duplicate original, and a certified true copy issued by the official having
official custody of the PDA, at the time of the apprehension".
We do not begrudge the zeal that may characterize a public official's
prosecution of criminal offenders. We, however, believe that this should
not be a license to run roughshod over a citizen's basic constitutional
lights, such as due process, or manipulate the law to suit dictatorial
tendencies.
We are impelled to point out a citizen's helplessness against the awesome
powers of a dictatorship. Thus, while We agree with the Solicitor General's
observation and/or manifestation that Brocka, et al. should have filed a
motion to quash the information, We, however, believe that such a course
of action would have been a futile move, considering the circumstances
then prevailing. Thus, the tenacious invocation of a spurious and
inoperational PDA and the sham and hasty preliminary investigation were
clear signals that the prosecutors intended to keep Brocka, et al. in
detention until the second offense of "Inciting to Sedition" could be
facilitated and justified without need of issuing a warrant of arrest anew.
As a matter of fact the corresponding informations for this second offense
were hastily filed on February 11, 1985, or two days after Brocka, et al.'s
release from detention was ordered by the trial judge on February 9, 1985.
Constitutional rights must be upheld at all costs, for this gesture is the true
sign of democracy. These may not be set aside to satisfy perceived illusory
visions of national grandeur.: nad
In the case of J. Salonga v. Cruz Pao, We point out:
"Infinitely more important than conventional adherence to general rules of
criminal procedure is respect for the citizen's right to be free not only from
arbitrary arrest and punishment but also from unwarranted and vexatious
prosecution . . ." (G.R. No. L-59524, February 18, 1985, 134 SCRA 438-at p.
448).
CRIMINAL PROCEDURE RULE 110
SALONGA vs PAO
G.R. No. L-59524 February 18, 1985
Facts: The petitioner invokes the constitutionally protected right to life and
liberty guaranteed by the due process clause, alleging that no prima facie
case has been established to warrant the filing of an information for
subversion against him. Petitioner asks the Court to prohibit and prevent
the respondents from using the iron arm of the law to harass, oppress, and
persecute him, a member of the democratic opposition in the Philippines.
The case roots backs to the rash of bombings which occurred in the Metro
Manila area in the months of August, September and October of 1980.
Victor Burns Lovely, Jr, one of the victims of the bombing, implicated
petitioner Salonga as one of those responsible.
On December 10, 1980, the Judge Advocate General sent the petitioner a
Notice of Preliminary Investigation in People v. Benigno Aquino, Jr., et al.
(which included petitioner as a co-accused), stating that the preliminary
investigation of the above-entitled case has been set at 2:30 oclock p.m.
on December 12, 1980 and that petitioner was given ten (10) days from
receipt of the charge sheet and the supporting evidence within which to
file his counter-evidence. The petitioner states that up to the time martial
law was lifted on January 17, 1981, and despite assurance to the contrary,
he has not received any copies of the charges against him nor any copies of
the so-called supporting evidence.
The counsel for Salonga was furnished a copy of an amended complaint
signed by Gen. Prospero Olivas, dated 12 March 1981, charging Salonga,
along with 39 other accused with the violation of RA 1700, as amended by
PD 885, BP 31 and PD 1736. On 15 October 1981, the counsel for Salonga
filed a motion to dismiss the charges against Salonga for failure of the
prosecution to establish a prima facie case against him. On 2 December
1981, Judge Ernani Cruz Pano (Presiding Judge of the Court of First
Instance of Rizal, Branch XVIII, Quezon City) denied the motion. On 4
January 1982, he (Pano) issued a resolution ordering the filing of an
information for violation of the Revised Anti-Subversion Act, as amended,
against 40 people, including Salonga. The resolutions of the said judge
dated 2 December 1981 and 4 January 1982 are the subject of the present
petition for certiorari. It is the contention of Salonga that no prima facie
case has been established by the prosecution to justify the filing of an
information against him. He states that to sanction his further prosecution
despite the lack of evidence against him would be to admit that no rule of
law exists in the Philippines today.
petitioner Jovito Salonga as one of the accused in the information filed
under the questioned resolution.
The court is constrained by this action of the prosecution and the
respondent Judge to withdraw the draft ponencia from circulating for
concurrences and signatures and to place it once again in the Courts
crowded agenda for further deliberations.
Insofar as the absence of a prima facie case to warrant the filing of
subversion charges is concerned, this decision has been rendered moot
and academic by the action of the prosecution.
2. Yes. Despite the SCs dismissal of the petition due to the cases moot
and academic nature, it has on several occasions rendered elaborate
decisions in similar cases where mootness was clearly apparent.
The Court also has the duty to formulate guiding and controlling
constitutional principles, precepts, doctrines, or rules. It has the symbolic
function of educating bench and bar on the extent of protection given by
constitutional guarantees.
In dela Camara vs Enage (41 SCRA 1), the court ruled that:
The fact that the case is moot and academic should not preclude this
Tribunal from setting forth in language clear and unmistakable, the
obligation of fidelity on the part of lower court judges to the unequivocal
command of the Constitution that excessive bail shall not be required.
In Gonzales v. Marcos (65 SCRA 624) whether or not the Cultural Center of
the Philippines could validly be created through an executive order was
mooted by Presidential Decree No. 15, the Centers new charter pursuant
to the Presidents legislative powers under martial law. Nevertheless, the
Court discussed the constitutional mandate on the preservation and
development of Filipino culture for national Identity. (Article XV, Section 9,
Paragraph 2 of the Constitution).
In the habeas corpus case of Aquino, Jr., v. Enrile, 59 SCRA 183), the fact
that the petition was moot and academic did not prevent this Court in the
exercise of its symbolic function from promulgating one of the most
voluminous decisions ever printed in the Reports.

We, therefore, rule that where there is manifest bad faith that
accompanies the filing of criminal charges, as in the instant case where
Brocka, et al. were barred from enjoying provisional release until such time
that charges were filed, and where a sham preliminary investigation was
hastily conducted, charges that are filed as a result should lawfully be
enjoined.
ACCORDINGLY, the petition is hereby GRANTED. The trial court is
PERMANENTLY ENJOINED from proceeding in any manner with the cases
subject of the petition. No costs.
SO ORDERED.
Issues: 1. Whether the above case still falls under an actual case
2. Whether the above case dropped by the lower court still deserves a
decision from the Supreme Court
Held: 1. No. The Court had already deliberated on this case, a consensus
on the Courts judgment had been arrived at, and a draft ponencia was
circulating for concurrences and separate opinions, if any, when on
January 18, 1985, respondent Judge Rodolfo Ortiz granted the motion of
respondent City Fiscal Sergio Apostol to drop the subversion case against
the petitioner. Pursuant to instructions of the Minister of Justice, the
prosecution restudied its evidence and decided to seek the exclusion of

Republic of the Philippines
Supreme Court
Manila
SECOND DIVISION
PEOPLE OF THE PHILIPPINES,
Petitioner,
- versus -
JOSEPH JOJO V. GREY, FRANCIS B. GREY, and COURT OF APPEALS-CEBU
CITY, EIGHTEENTH DIVISION,
Respondents.
G.R. No. 180109
Promulgated:
July 26, 2010
x------------------------------------------------------------------------------------x
DECISION
NACHURA, J.:
Before this Court is a Petition for Review under Rule 45 of the Rules of
Court filed by the People of the Philippines, through the Office of the
Solicitor General (OSG), seeking the nullification of the Court of Appeals
(CA) (Cebu City-Eighteenth Division) Resolution[1] dated March 13, 2007,
Decision[2] dated May 8, 2007, and Resolution[3] dated October 8, 2007,
in CA-G.R. SP No. 02558, entitled Mayor Joseph Jojo V. Grey and Francis B.
Grey v. Hon. Roberto A. Navidad, Presiding Judge of the Regional Trial
Court of Calbayog City, Branch 32, and the People of the Philippines.
On December 11, 2006, an Information for Murder was filed against
respondent Joseph Grey, former Mayor of San Jorge, Samar; his son,
respondent Francis Grey; and two others for the death of Rolando Diocton,
an employee of the San Jorge municipal government, before the Regional
Trial Court (RTC), Branch 41, Gandara, Samar. The Information was
accompanied by other supporting documents and a motion for the
issuance of a warrant of arrest.[4]
Respondents filed a petition for review with the Secretary of Justice.
Meanwhile, RTC Branch 41 Presiding Judge Rosario Bandal denied the
motion for the issuance of a warrant of arrest. Judge Bandal found the
prosecutions evidence to be insufficient to link respondents to the crime
charged. She directed the prosecution to present, within five days,
additional evidence that would show that accused were the assailants or
that they conspired, confederated, or helped in the commission of the
crime charged.[5]
The prosecution then filed an Omnibus Motion for Reconsideration and a
motion for the inhibition of Judge Bandal.[6] The judge inhibited herself
but denied the motion for reconsideration.[7]
Thereafter, the provincial prosecutor filed a petition for change of venue
before this Court, attaching thereto a letter from the victims wife
expressing fear for her life and that of the other witnesses.[8]
CRIMINAL PROCEDURE RULE 110
The Secretary of Justice, in a Resolution dated January 4, 2007, dismissed
the petition for review and respondents counter charge of perjury. He
found no error to warrant the modification or reversal of the prosecutors
resolution. The Secretary of Justice ruled that the evidence adduced
against respondents was sufficient to establish probable cause for the
offense charged. Respondents motion for reconsideration was denied on
January 30, 2007.[9]
Subsequently, the prosecution withdrew their motion for change of venue
before this Court, citing financial difficulties in bringing witnesses to
Manila.[10] Respondents opposed the motion and prayed that all
proceedings be suspended until after the May 14, 2007 elections.[11]
However, on February 19, 2007, respondents filed their own petition for
change of venue before this Court, alleging that the presiding judge who
took over the case, Judge Roberto Navidad, was a pawn in the political
persecution being staged against them.[12] In its August 22, 2007
Resolution, this Court denied the petition for lack of merit and directed
Judge Navidad to hear the case with dispatch.[13]
Accordingly, Judge Navidad proceeded with the preliminary inquiry on the
existence of probable cause, and, in an Order dated February 20, 2007,
ruled that the finding of probable cause was supported by the evidence on
record. He then issued warrants of arrest against respondents and all but
one of their co-accused.[14]
Respondents filed a Petition[15] for Certiorari and Prohibition before the
CA, alleging that Judge Navidad gravely abused his discretion in issuing the
February 20, 2007 Order, and seeking a temporary restraining order (TRO)
and/or a writ of preliminary injunction. They alleged that the filing of the
murder charges against them on the basis of perjured statements coming
from their political opponents supporters smacks of political harassment at
its foulest form.[16] Respondents pointed out that the criminal complaint
was filed barely two months after Joseph Grey declared his intentions to
challenge incumbent Congressman Reynaldo S. Uy, a former ally, in the
May 2007 congressional elections. Likewise, respondents claimed that one
of the witnesses, Urien Moloboco, who executed an affidavit before the
Provincial Prosecutor, was the subject of an Alias Warrant of Arrest for
murder issued by the RTC of Gandara, Samar on June 26, 2006, and, hence,
was a fugitive from the law at the time of the filing of the criminal
complaint against respondents. Respondents maintain that the fact that
Moloboco was not arrested when he executed his affidavit before the
prosecutor, spoke of the power and clout of the witness protectors.[17]
The CA Eighteenth Division issued a TRO on March 13, 2007.[18] After oral
arguments, the CA issued a Decision[19] dated May 8, 2007, making the
TRO permanent, ordering that warrants of arrest be set aside, and
dismissing the criminal case without prejudice.
The CA held that Judge Navidad failed to abide by the constitutional
mandate for him to personally determine the existence of probable
cause.[20] According to the CA, nowhere in the assailed Order did Judge
Navidad state his personal assessment of the evidence before him and the
personal justification for his finding of probable cause. It found that the
judge extensively quoted from the Joint Resolution of the Provincial
Prosecutor and the Resolution of the Secretary of Justice, and then
adopted these to conclude that there was sufficient evidence to support
the finding of probable cause. The CA held that the Constitution
commands the judge to personally determine the existence of probable
cause before issuing warrants of arrest.[21]
Moreover, the CA also ruled that the Information was not supported by
the allegations in the submitted affidavits.[22] It pointed out that the
Information charged respondents as principals by direct participation, but
the complaint-affidavit and supporting affidavits uniformly alleged that
respondents were not at the scene of the shooting.[23] The CA further
found that the allegations in the complaint-affidavit and supporting
affidavits were insufficient to establish probable cause. It said that there
was nothing in the affidavits to show acts that would support the
prosecutions theory that respondents were also charged as principals by
conspiracy.[24]
Petitioners motion for reconsideration of the CAs May 8, 2007 Decision
was denied in a Resolution dated October 8, 2007.[25] Hence, this petition
for review.
Petitioner argues that respondents committed forum shopping, which
would warrant the outright dismissal of their petition below. Petitioner
alleges that respondents petition for change of venue before this Court
and their petition for prohibition before the CA actually involve the same
subject matter, parties, and issues that of enjoining Judge Navidad from
proceeding with the trial of the criminal case against them.[26] Moreover,
these two proceedings have resulted in conflicting decisions, with this
Court resolving to proceed with the case and with the CA enjoining the
same.[27]
Petitioner also argues against the CAs ruling that Judge Navidad failed to
personally determine the existence of probable cause. It said that although
the judge adopted the findings of the prosecutors as to the sufficiency of
evidence constituting probable cause, the language of the Order clearly
reflects that the judge himself personally examined the records and found
that there was probable cause for the issuance of warrants of arrest.[28]
Moreover, the judge was correct in finding probable cause based on the
sworn statements of the witnesses submitted to the court.[29] Petitioner
avers that the CA disregarded the fact that the Information alleged
conspiracy.[30] In any case, petitioner asserts that a perceived defect in
the Information is not jurisdictional as the same may be amended anytime
before arraignment or with leave of court after arraignment.[31]
Petitioner also claims that respondents had not shown any clear and
unmistakable right to the relief they sought. It said that there are more
than enough plain, speedy, and adequate remedies available to
respondents. Their constitutional rights are amply protected in the
enforcement of the warrants of arrest. They can likewise apply for bail or
move to quash the allegedly defective Information.[32]
Petitioner also argues that this Court has laid down the rule that criminal
prosecution cannot be enjoined, and any exception to this rule must be
convincingly established.[33] On the other hand, the comparative injury to
the People in permanently enjoining a criminal case is beyond any of
respondents speculative claim of injury.
Thus, petitioner is praying that the CAs May 8, 2007 Decision and October
8, 2007 Resolution be reversed and set aside, and the writ of injunction be
dissolved.[34]

In their Comment, respondents assert that the trial court issued its
February 20, 2007 Order in gross violation of the Constitution and
prevailing jurisprudence on the matter.[35] Respondents claim that the
trial courts violation is evident in the indecent haste with which it issued
the Order and Warrants of Arrest, and in its own admission in the Order
itself.[36] Respondents also maintain that the trial court acted whimsically,
capriciously, and with grave abuse of discretion when it concluded that
there was probable cause to issue warrants of arrest against
respondents.[37] Respondents likewise assert that the trial court
committed grave abuse of discretion when it reversed the finding of Judge
Bandal, who first heard the case.[38]
The petition is impressed with merit.
Initially, we decide the issue of forum shopping raised by petitioner.
Petitioner maintains that respondents committed forum shopping when it
filed a petition for change of venue before this Court and a petition for
prohibition before the CA.
Forum shopping is an act of a party, against whom an adverse judgment or
order has been rendered in one forum, of seeking and possibly getting a
favorable opinion in another forum, other than by appeal or special civil
action for certiorari. It may also involve the institution of two or more
actions or proceedings grounded on the same cause on the supposition
that one or the other court would make a favorable disposition.[39]
Forum shopping exists where the elements of litis pendentia are present,
and where a final judgment in one case will amount to res judicata in the
other. The elements of forum shopping are: (a) identity of parties, or at
least such parties as would represent the same interest in both actions; (b)
identity of rights asserted and relief prayed for, the relief being founded on
the same facts; and (c) identity of the two preceding particulars such that
any judgment rendered in the other action will, regardless of which party is
successful, amount to res judicata in the action under consideration.[40]
The elements of res judicita are: (a) the former judgment must be final; (b)
the court which rendered judgment had jurisdiction over the parties and
the subject matter; (c) it must be a judgment on the merits; and (d) there
must be, between the first and second actions, identity of parties, subject
matter, and cause of action.[41]
A reexamination of the two actions in this case, in light of the foregoing
jurisprudence, is in order.
In the petition for change of venue filed on February 19, 2007, respondents
prayed for the transfer of the criminal case to any court in Metro
Manila,[42] alleging that the prosecution was politically motivated and
designed to hamper the plan of respondent Joseph Grey to run for a
congressional seat in the May 2007 elections.[43] They contended that it
would be extremely pernicious to the interest of justice if trial of this case
and (of) the other two cases are held in Samar, especially in the City of
Calbayog, where the said (Congressman) Reynaldo Uy is a resident and
absolutely wields power.[44] They also asked the Court to hold the
proceedings in abeyance until after the May 14, 2007 elections.
CRIMINAL PROCEDURE RULE 110
In its August 22, 2007 Resolution, the Court denied the petition for transfer
of venue for lack of merit. It also directed Judge Navidad to hear the case
with dispatch.[45]
On March 5, 2007, while their petition for change of venue was pending
before this Court, respondents filed a petition for certiorari before the CA.
They prayed, first, for the issuance of a TRO and/or a writ of preliminary
injunction to prohibit Judge Navidad from proceeding with Criminal Case
No. 4916 and from causing the implementation of the warrants of arrest
against respondents; and second, for the Court to set aside Judge Navidads
February 20, 2007 Order and the corresponding warrants he issued.[46]
The TRO was granted on March 13, 2007, and the CA Decision making the
same injunction permanent and setting aside the warrants of arrest was
promulgated on May 8, 2007, a few days before the May 14, 2007
elections.
The CA correctly ruled that respondents were not guilty of forum shopping
when they filed the two actions. Respondents raised different issues and
sought different reliefs in the two actions, although both were grounded
on the same set of facts.
The issue in the petition for change of venue is whether the trial of the
case was to be moved to another court in light of respondents allegations
that the same was being used as a tool for their political persecution. On
the other hand, the issue in the petition for certiorari before the CA was
whether Judge Navidad gravely abused his discretion in issuing the
February 20, 2007 Order and the warrants for respondents arrest.
Thus, this Courts Resolution would not have amounted to res judicata that
would bar the petition for certiorari before the CA.
We now resolve the substantive issues.
Respondents, in their petition before the CA, questioned the alleged lack
of personal determination of probable cause by Judge Navidad in issuing
the warrants for their arrest.
Judge Navidads Order reads:
In this separate, independent constitutionally-mandated Inquiry conducted
for the purpose of determining the sufficiency of the evidence constituting
probable cause to justify the issuance of a Warrant of Arrest, the Court
perforce, made a very careful and meticulous and (sic) review not only of
the records but also the evidence adduced by the prosecution, particularly
the sworn statements/affidavits of Mario Abella, Uriendo Moloboco and
Edgar Pellina.[47]
The language of the Order clearly shows that the judge made his own
personal determination of the existence of probable cause by examining
not only the prosecutors report but also his supporting evidence,
consisting mainly of the sworn statements of the prosecutions witnesses.
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 the 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.[48]
The duty of the judge to determine probable cause to issue a warrant of
arrest is mandated by Article III, Section 2 of the Philippine Constitution:
Section 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.
In Soliven v. Makasiar,[49] the Court explained that this constitutional
provision does not mandatorily require the judge to personally examine
the complainant and her witnesses. Instead, he may opt to personally
evaluate the report and supporting documents submitted by the
prosecutor or he may disregard the prosecutors report and require the
submission of supporting affidavits of witnesses. Thus, in Soliven, we said:
What the Constitution underscores is the exclusive and personal
responsibility of the issuing judge to satisfy himself of the existence of
probable cause. In satisfying himself of the existence of probable cause for
the issuance of a warrant of arrest, 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 documents submitted by the fiscal regarding the existence of
probable cause and, on the basis thereof, issue a warrant of arrest; or (2) if
on the basis thereof he finds no probable cause, he may disregard the
fiscals 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.
Sound policy dictates this procedure, otherwise judges would by unduly
laden with the preliminary examination and investigation of criminal
complaints instead of concentrating on hearing and deciding cases filed
before their courts.[50]
What the law requires as personal determination on the part of a judge is
that he should not rely solely on the report of the investigating
prosecutor.[51] This means that the judge should consider not only the
report of the investigating prosecutor but also the affidavit and the
documentary evidence of the parties, the counter-affidavit of the accused
and his witnesses, as well as the transcript of stenographic notes taken
during the preliminary investigation, if any, submitted to the court by the
investigating prosecutor upon the filing of the Information.[52]
The Court has also ruled that the personal examination of the complainant
and his witnesses is not mandatory and indispensable in the determination
of probable cause for the issuance of a warrant of arrest. The necessity
arises only when there is an utter failure of the evidence to show the
existence of probable cause.[53] Otherwise, the judge may rely on the
report of the investigating prosecutor, provided that he likewise evaluates
the documentary evidence in support thereof.

Contrary to respondents claim, Judge Navidad did not gravely abuse his
discretion in issuing the same.
A perusal of the assailed Order bears out this fact.
It was only through a review of the proceedings before the prosecutor that
could have led Judge Navidad to determine that the accused were given
the widest latitude and ample opportunity to challenge the charge of
Murder which resulted, among others, (in) a filing of a counter-charge of
Perjury.[54] Likewise, his personal determination revealed no improper
motive on the part of the prosecution and no circumstance which would
overwhelm the presumption of regularity in the performance of official
functions.[55] Thus, he concluded that the previous Order, denying the
motion for the issuance of warrants of arrest, was not correct.[56]
These statements sufficiently establish the fact that Judge Navidad
complied with the constitutional mandate for personal determination of
probable cause before issuing the warrants of arrest.
The CA likewise overlooked a fundamental rule we follow in this
jurisdiction. It is an established doctrine that injunction will not lie to
enjoin a criminal prosecution because public interest requires that criminal
acts be immediately investigated and prosecuted for the protection of
society.[57]
However, it is also true that various decisions of this Court have laid down
exceptions to this rule, among which are:
a. To afford adequate protection to the constitutional rights of the accused
(Hernandez v. Albano, et al., L-19272, January 25, 1967, 19 SCRA 95);
b. When necessary for the orderly administration of justice or to avoid
oppression or multiplicity of actions (Dimayuga, et al. v. Fernandez, 43 Phil.
304; Hernandez v. Albano, supra; Fortun v. Labang, et al., L-38383, May 27,
1981, 104 SCRA 607);
c. When there is a pre-judicial question which is sub[-]judice (De Leon v.
Mabanag, 70 Phil. 202);
d. When the acts of the officer are without or in excess of authority (Planas
v. Gil, 67 Phil. 62);
e. Where the prosecution is under an invalid law, ordinance or regulation
(Young v. Rafferty, 33 Phil. 556; Yu Cong Eng v. Trinidad, 47 Phil. 385, 389);
f. When double jeopardy is clearly apparent (Sangalang v. People and
Avendia, 109 Phil. 1140);
g. Where the court has no jurisdiction over the offense (Lopez v. City
Judge, L-25795, October 29, 1966, 18 SCRA 616);
h. Where there is a case of persecution rather than prosecution (Rustia v.
Ocampo, CA-G.R. No. 4760, March 25, 1960);
i. Where the charges are manifestly false and motivated by the lust for
vengeance (Recto v. Castelo, 18 L.J. [1953], cited in Raoa v. Alvendia, CA-
CRIMINAL PROCEDURE RULE 110
G.R. No. 30720-R, October 8, 1962; Cf. Guingona, et al. v. City Fiscal, L- respondents will be determined. Whether the criminal prosecution was
60033, April 4, 1984, 128 SCRA 577); x x x merely a tool for harassment or whether the prosecutions evidence can
pass the strict standards set by the law and withstand the exacting scrutiny
j. When there is clearly no prima facie case against the accused and a of the court will all be resolved at the trial of the case.
motion to quash on that ground has been denied (Salonga v. Pao, et al., L-
59524, February 18, 1985, 134 SCRA 438)[; and] The criminal Information in this case was filed four years ago and trial has
yet to begin. The victims kin, indeed, all the parties, are awaiting its
[k.] Preliminary injunction has been issued by the Supreme Court to resolution. Any further delay will amount to an injustice.
prevent the threatened unlawful arrest of petitioners (Rodriguez v.
Castelo, L-6374, August 1, 1953).[58] WHEREFORE, the foregoing premises considered, the Court of Appeals
Decision dated May 8, 2007 and Resolution dated October 8, 2007 in CA-
G.R. SP No. 02558 are hereby REVERSED and SET ASIDE, and the
Respondents insisted that political persecution by their political rivals was Permanent Injunction is hereby DISSOLVED. The Order of the Regional Trial
the underlying reason for the filing of criminal charges against them, and Court of Calbayog City, Samar, dated February 20, 2007, is hereby
used this as basis for asking the appellate court to stop the proceedings in REINSTATED. The Regional Trial Court of Calbayog City, Samar, is DIRECTED
the trial court. to proceed with hearing, and to decide Criminal Case No. 4916 with
dispatch.
Indeed, this Court has recognized that, in certain instances, political
persecution or political motives may have impelled the filing of criminal SO ORDERED.
charges against certain political rivals. But this Court has also ruled that
any allegation that the filing of the charges is politically motivated cannot
justify the prohibition of a criminal prosecution if there is otherwise
evidence to support the charges.[59]
In this case, the judge, upon his personal examination of the complaint and
evidence before him, determined that there was probable cause to issue
the warrants of arrest after the provincial prosecution, based on the
affidavits presented by complainant and her witnesses, found probable
cause to file the criminal Information. This finding of the Provincial
Prosecutor was affirmed by the Secretary of Justice.
To establish political harassment, respondents must prove that the public
prosecutor, not just the private complainant, acted in bad faith in
prosecuting the case or has lent himself to a scheme that could have no
other purpose than to place respondents in contempt and disrepute.[60] It
must be shown that the complainant possesses the power and the
influence to control the prosecution of cases.[61]
Likewise, the allegation that the filing of the complaint was politically
motivated does not serve to justify the nullification of the informations
where the existence of such motive has not been sufficiently established
nor substantial evidence presented in support thereof.[62]
Other than their own self-serving claims, respondents have adduced
absolutely no proof of the perceived political persecution being waged by
their rivals. Respondents have not shown any evidence of such a grand
design. They have not alleged, much less proved, any ill motive or malice
that could have impelled the provincial prosecutor, the judge, and even
the Secretary of Justice to have respectively ruled in the way each of them
did. In short, respondents are holding tenuously only on the hope that this
Court will take them at their word and grant the relief they pray for. This
Court, however, cannot anchor its ruling on mere allegations.
Needless to say, a full-blown trial is to be preferred to ferret out the
truth.[63] If, as respondents claim, there is no evidence of their culpability,
then their petition for bail would easily be granted. Thereafter, the
credibility of the prosecutions and the accuseds respective evidence may
be tested during the trial. It is only then that the guilt or innocence of

Republic of the Philippines SUPREME COURT Manila
SECOND DIVISION
G.R. No. 178607 December 5, 2012
DANTE LA. JIMENEZ, in his capacity as President and representative of
UNLAD SHIPPING & MANAGEMENT CORPORATION, Petitioner,
vs.
HON. EDWIN SORONGON (in his capacity as Presiding Judge of Branch
214 of the Regional Trial Court of Mandaluyong City), SOCRATES
ANTZOULATOS, CARMEN ALAMIL, MARCELl GAZA and MARKOS
AVGOUSTIS, Respondents.
DECISION
BRION, J.:
We resolve the petition for review on certiorari filed by Dante La. Jimenez
(petitioner) to challenge the twin resolutions of the Court of Appeals ( CA)
dated November 23, 20062 and June 28, 20073 in CA-G.R. SP No. 96584,
which dismissed the petitioner's petition
for certiorari and denied his motion for reconsideration,
respectively.
The Factual Antecedents
The petitioner is the president of Unlad Shipping & Management
Corporation, a local manning agency, while Socrates Antzoulatos,
Carmen Alamil, Marceli Gaza, and Markos Avgoustis (respondents) are
some of the listed incorporators of Tsakos Maritime Services, Inc. (TMSI),
another local manning agency.
On August 19, 2003, the petitioner filed a complaint-affidavit4 with the
Office of the City Prosecutor of Mandaluyong City against the respondents
for syndicated and large scale illegal recruitment.5 The petitioner alleged
that the respondents falsely represented their stockholdings in TMSIs
articles of incorporation6 to secure a license to operate as a recruitment
agency from the Philippine Overseas Employment Agency (POEA).
On October 9, 2003, respondents Antzoulatos and Gaza filed their joint
counter-affidavit denying the complaint-affidavits allegations.7
Respondents Avgoustis and Alamil did not submit any counter-affidavit.
In a May 4, 2004 resolution,8 the 3rd Assistant City Prosecutor
recommended the filing of an information for syndicated and large scale
illegal recruitment against the respondents. The City Prosecutor approved
his recommendation and filed the corresponding criminal information with
the Regional Trial Court (RTC) of Mandaluyong City (docketed as Criminal
Case No. MC04-
8514 and raffled to Branch 212) presided by Judge Rizalina T. Capco-
Umali.
Subsequently, in a December 14, 2004 resolution, the City Prosecutor
reconsidered the May 4, 2004 resolution and filed a motion with the RTC
to withdraw the information.9 The petitioner and respondents Antzoulatos
and Gaza filed their opposition10 and comment to the opposition,
respectively.
CRIMINAL PROCEDURE RULE 110
In an August 1, 2005 resolution,11 the RTC denied the motion to withdraw
information as it found the existence of probable cause to hold the
respondents for trial.12 Thus, the RTC ordered the issuance of warrants of
arrest against the respondents.
On August 26, 2005, respondents Antzoulatos and Gaza filed an omnibus
motion for reconsideration and for deferred enforcement of the warrants
of arrest.13 In a September 2, 2005 order,14 the RTC denied the omnibus
motion, reiterating that the trial court is the sole judge on whether a
criminal case should be dismissed or not.
On September 26, 2005, respondent Alamil filed a motion for judicial
determination of probable cause with a request to defer enforcement of
the warrants of arrest.15
On September 29, 2005, the petitioner filed his opposition with motion to
expunge, contending that respondent Alamil, being a fugitive from justice,
had no standing to seek any relief and that the RTC, in the August 1, 2005
resolution, already found probable cause to hold the respondents for
trial.16
In a September 30, 2005 order,17 the RTC denied respondent Alamils
motion for being moot and academic; it ruled that it had already found
probable cause against the respondents in the August
1, 2005 resolution, which it affirmed in the September 2, 2005 order.
On October 10, 2005, respondent Alamil moved for reconsideration and
for the inhibition of Judge Capco-Umali, for being biased or partial.18 On
October 25, 2005, the petitioner filed an opposition with a motion to
expunge, reiterating that respondent Alamil had
no standing to seek relief from the RTC.19
In a January 4, 2006 order,20 Judge Capco-Umali voluntarily inhibited
herself from the case and did not resolve respondent Alamils
motion for reconsideration and the petitioners motion to expunge.
The case was later re-raffled to Branch 214, presided by Judge
Edwin D. Sorongon.
The RTC Rulings
In its March 8, 2006 order,21 the RTC granted respondent Alamils motion
for reconsideration. It treated respondent Alamils motion for judicial
determination as a motion to dismiss for lack of probable cause. It found:
(1) no evidence on record to indicate that the respondents gave any false
information to secure a license to operate as a recruitment agency from
the POEA; and (2) that respondent Alamil voluntarily submitted to the
RTCs jurisdiction through the filing of pleadings seeking affirmative relief.
Thus, the RTC dismissed the case, and set aside the earlier issued warrants
of arrest.
On April 3, 2006, the petitioner moved for reconsideration, stressing the
existence of probable cause to prosecute the respondents and that
respondent Alamil had no standing to seek any relief from the RTC.22
On April 26, 2006, respondent Alamil moved to expunge the motion for
being a prohibited pleading since the motion did not have the public
prosecutors conformity.23
In its May 10, 2006 order,24 the RTC denied the petitioners motion for
reconsideration, finding that the petitioner merely reiterated arguments in
issues that had been finally decided. The RTC ordered the motion
expunged from the records since the motion did not have the public
prosecutors conformity.
On May 19, 2006, the petitioner filed a notice of appeal.25
On May 30, 2006, respondent Alamil moved to expunge the petitioners
notice of appeal since the public prosecutor did not authorize the appeal
and the petitioner had no civil interest in the case.26
On June 27, 2006, the petitioner filed his comment to the motion to
expunge, claiming that, as the offended party, he has the right to appeal
the RTC order dismissing the case; the respondents fraudulent acts in
forming TMSI greatly prejudiced him.27
In its August 7, 2006 joint order,28 the RTC denied the petitioners notice
of appeal since the petitioner filed it without the conformity of the
Solicitor General, who is mandated to represent the People of the
Philippines in criminal actions appealed to the CA. Thus, the RTC ordered
the notice of appeal expunged from the records.
On October 18, 2006, the petitioner elevated his case to the CA via a
Rule 65 petition for certiorari assailing the RTCs March 8, 2006,
May 10, 2006, and August 7, 2006 orders.
The CA Ruling
In its November 23, 2006 resolution,29 the CA dismissed outright the
petitioners Rule 65 petition for lack of legal personality to file the petition
on behalf of the People of the Philippines. It noted that only the Office of
the Solicitor General (OSG) has the legal personality to represent the
People, under Section 35(1), Chapter 12, Title III, Book IV of the 1987
Administrative Code. It also held that the petitioner was not the real party
in interest to institute the case, him not being a victim of the crime
charged to the respondents, but a mere competitor in their recruitment
business. The CA denied30 the motion for reconsideration31 that followed.
The Petition
The petitioner argues that he has a legal standing to assail the dismissal of
the criminal case since he is the private complainant and a real party in
interest who had been directly damaged and prejudiced by the
respondents illegal acts; respondent Alamil has no legal standing to seek
any relief from the RTC since she is a fugitive from justice.
The Case for the Respondents
The respondents32 submit that the petitioner lacks a legal standing to
assail the dismissal of the criminal case since the power to prosecute lies
solely with the State, acting through a public prosecutor; the petitioner
acted independently and without the authority of a public prosecutor in
the prosecution and appeal of the case.
The Issue

The case presents to us the issue of whether the CA committed a
reversible error in dismissing outright the petitioners Rule 65 petition for
certiorari for lack of legal personality to file the petition on behalf of the
People of the Philippines.
Our Ruling
The petition lacks merit.
The petitioner has no legal personality to assail the dismissal of the
criminal case
It is well-settled that "every action must be prosecuted or defended in the
name of the real party in interest" "who stands to be benefited or injured
by the judgment in the suit, or by the party entitled to the avails of the
suit."33 Interest means material interest
CRIMINAL PROCEDURE RULE 110
offended party of the crime, but to cause the reinstatement of the criminal
action against
the respondents. This involves the right to prosecute which pertains
exclusively to the People, as represented by the OSG.40
Respondent Alamil voluntarily submitted to the RTCs jurisdiction
As a rule, one who seeks an affirmative relief is deemed to have submitted
to the jurisdiction of the court. Filing pleadings seeking affirmative relief
constitutes voluntary appearance, and the consequent jurisdiction of one's
person to the jurisdiction of the court.41
Pelaez, Jalandoni & Adriano for petitioner Jorge P. Tan, Jr. K.V. Faylona &
Thus, by filing several motions before the RTC seeking the dismissal of the
criminal case, respondent Alamil voluntarily submitted to the jurisdiction
of the RTC. Custody of the law is not required for the adjudication of reliefs
other than an application for bail.42
Republic of the Philippines SUPREME COURT Manila
SECOND DIVISION
G.R. Nos. L-41213-14 October 5, 1976
JORGE P. TAN, JR., CESAR TAN, LIBRADO SODE TEOFANIS BONJOC,
OSMUNDO TOLENTINO and MARIANO BARTIDO, petitioners,
vs.
JUDGE PEDRO GALLARDO, in his capacity as Presiding Judge of Circuit
Criminal Court, 13th Judicial District, Tacloban City, and PEOPLE OF THE
PHILIPPINES, respondents.
Associates for petitioner Cesar Tan. Ruperto Kapunan, Jr. for petitioner
Teofanis Bondoc.
Amadeo Seno, Artemio Derecho & Manuel Quimbo for petitioners
Librado Isode, Osmundo, Tolentino and Mariano Bartido.

or an interest in issue to be affected by the decree or judgment of the
case, as distinguished from mere interest in the question involved.34 By
real interest is meant a present substantial interest, as distinguished from
a mere expectancy, or a future, contingent, subordinate or consequential
interest.35 When the plaintiff or the defendant is not a real party in
interest, the suit is dismissible.36
Procedural law basically mandates that "ll criminal actions commenced by
complaint or by information shall be prosecuted under the direction and
control of a public prosecutor."37 In appeals of criminal cases before the
CA and before this Court, the OSG is the appellate counsel of the People,
pursuant to Section 35(1), Chapter
12, Title III, Book IV of the 1987 Administrative Code. This section explicitly
provides:
SEC. 35. Powers and Functions. The Office of the Solicitor General shall
represent the Government of the Philippines, its agencies and
instrumentalities and its officials and agents in any litigation, proceeding,
investigation or matter requiring the services of
lawyers. . . . It shall have the following specific powers and functions:
(1) Represent the Government in the Supreme Court and the Court of
Appeals in all criminal proceedings; represent the Government and its
officers in the Supreme Court and Court of Appeals, and all other courts or
tribunals in all civil actions and special proceedings
in which the Government or any officer thereof in his official
capacity is a party. (emphasis added)
The People is the real party in interest in a criminal case and only the OSG
can represent the People in criminal proceedings pending
in the CA or in this Court. This ruling has been repeatedly stressed in
several cases38 and continues to be the controlling doctrine.
While there may be rare occasions when the offended party may be
allowed to pursue the criminal action on his own behalf39 (as when there
is a denial of due process), this exceptional circumstance does not apply in
the present case.
In this case, the petitioner has no legal personality to assail the dismissal of
the criminal case since the main issue raised by the petitioner involved the
criminal aspect of the case, i.e., the existence of probable cause. The
petitioner did not appeal to protect his alleged pecuniary interest as an
WHEREFORE, we hereby DENY the appeal. The twin resolutions of the Solicitor General Estilito P. Mendoza, Assistant Solicitor General
CoUJt of Appeals dated November 23, 2006 and June 28, 2007 Alicia Simpio-Diy and Solicitor Eduardo L. Kilayko for respondents.
in CAG. R. SP No. 96584 are AFFIRMED. Costs against the petitioner. SO
ORDERED. Estanislao A. Fernandez and Dakila F. Castro & Associate as private
prosecutors.
ANTONIO, J.:
In this Special Civil Action for certiorari with Prohibition, petitioners seek
the annulment of respondent Judge's Orders in Criminal Cases Nos. CCC
XIII-50-L-S'72 and CCC-XIII-51-L-S'72, 1 to wit: (a) Order of July 21, 1975,
denying petitioners' motion for respondent Judge to disqualify or to inhibit
himself from hearing and acting upon their Motion for New Trial and/or
Reconsideration and Supplemental Motion for New Trial; (b) Order of July
23, 1975, denying
petitioners' Motion for New Trial and/or Reconsidertion and Supplemental
Motion for New Trial; and (c) Order of July 25, 1975, ordering the transfer
of the accused (petitioners herein) from Camp Bumpus PC headquarters,
Tacloban city, to the Nationial Penitentiary, New Bilibid Prisons,
Muntinlupa, Rizal. It is likewise sought, by way of prohibition, to compel
respondent Judge to desist from further proceeding with the afore-
mentioned criminal cases.
By Resolution of this Court dated August 27, 1975, the respondent Judge
was required to file his answer within ten (10) days from notice, and in
connection therewith, a temporary restraining order was issued to enjoin
the respondent from further proceeding with the afore-mentioned
criminal cases. The petition was subsequently amended to include the
People of the Philippines and thereafter, on January 14, 1976, the Solicitor
General, on behalf of the People of the Philippines, submitted his
Comment to the petition. The
Solicitor General informed this Court, thus: that they are
"persuaded that there are bases for stating that the rendition of
respondent Judge's decision and his resolution on the motion for new trial
were not free from suspicion of bias and prejudice ... . Considering the
circumstances of the instant case, the seriousness of the charges and
counter-charges and the nature of the evidence
on hand to support them, we feel that respondent Judge "appeared to
have been heedless of the oft-reiterated admonition addressed
to trial judges to avoid even the impression of the guilt or innocence of the
accused being dependent on prejudice or prejudgment" and, therefore, it
was the submission of said official "that the case should

he remanded to the trial court for the rendition of a new decision and with
instruction to receive additional evidence proferred by the accused with
the right of the prosecution to present rebuttal evidence as inay be
warranted" and, therefore, they interpose no objection to the remand of
the aforementioned criminal cases "for the rendition of a new decision by
another trial judge, after the parties shall have adduced such additional
evidence as they may wish to make, under such terms and conditions as
this Honorable Court may deem fit to impose. 2
On January 30, 1976, private prosecutors submitted their Comment in
justification of the challenged Orders of the respondent Judge and
objected to the remand of this case.
On February 12, 1976, the petitioners moved to strike out the "Motion to
Admit Attacked Comment" and the "Comment" of the private prosecutor
on the ground that the latter has "absolutely no standing in the instant
proceedings before this Honorable Court and, hence, without any
personality to have any paper of his entertained by this Tribunal.
The private prosecutors now contend that they are entitled to appear
before this Court, to take part in the proceedings, and to adopt a position
in contravention to that of the Solicitor General.
The issue before Us is whether or not the private prosecutors have the
right to intervene independently of the Solicitor General and to adopt a
stand inconsistent with that of the latter in the present proceedings.
There are important reasons which support the view that in the present
proceedings, the private prosecutors cannot intervene independently of
and take a position inconsistent with that of the Solicitor General.
To begin with, it will be noted that the participation of the private
prosecution in the instant case was delimited by this Court in its Resolution
of October 1, 1975, thus: "to collaborate with the Solicitor General in the
preparation of the Answer and pleadings that may be required by this
Court." To collaborate means to cooperate with and to assist the Solicitor
General. It was never intended that the private prosecutors could adopt a
stand independent of or in contravention of the position taken by the
Solicitor General.
There is no question that since a criminal offense is an outrage to the
sovereignty of the State, it is but natural that the representatives of the
State should direct and control the prosecution. As stressed in Suarez v.
Platon, et al., 3 the prosecuting officer "is the representative not of. an
ordinary party to a controversy, but of a sovereignty whose obligation to
govern impartially is as compelling as its obligation to govern at all; and
whose interest, therefore, in a criminal prosecution is not that it shall win a
case, but that justice shall be done. As such, he is in a peculiar and very
definite sense the servant of the law, the twofold aim of which is that guilt
shall not escape or innocence suffer. He may prosecute with earnestness
and vigorindeed, he should do so. But, while he may strike hard blows,
he is not at liberty to strike foul ones. It is as much his duty to refrain from
improper methods calculated to produce a wrongful conviction as it is to
use every legitimate means to bring about a just one." Thus, it was
stressed
in People v. Esquivel, et al., 4 that there is an absolute necessity for
CRIMINAL PROCEDURE RULE 110
prosecuting attorneys to lay "before the court the pertinent facts at their
disposal with methodical and meticulous attention, clarifying
contradictions and filling up gaps and loopholes in their evidence, to the
end that the court's mind may not be tortured by doubts, that the
innocent may not suffer and the guilty not escape unpunished. Obvious to
all, this is the prosecution's prime duty to the court, to the accused, and to
the state." It is for the purpose of realizing the
afore-mentioned objectives that the prosecution of offenses is placed
under the direction, control, and responsibility of the prosecuting officer.
The role of the private prosecutors, upon the other hand, is to represent
the offended parts, with respect to the civil action for the recovery of the
civil liability arising from the offense. 'This civil action is deemed instituted
with the criminal action, unless the
offended party either expressly waives the civil action or reserves to
institute it separately. 5 Thus, "an offended party may intervene in the
proceedings, personally or by attorney, specially in case of offenses which
can not be prosecuted except at the instance of the offended party. 6 The
only exception to this is when the offended party waives his right to civil
action or expressly reserves his right to institute it after the termination of
the case, in which case he lost
his right to intervene upon the theory that he is deemed to have lost his
interest in its prosecution. 7 And in any event, whether an offended party
intervenes in the prosecution of a criminal
action, his intervention must always be subject to the direction and control
of the prosecuting official. " 8 As explained in Herrero v. Diaz, supra, the
"intervention of the offended party or his attorney is authorized by section
15 of Rule 106 of the Rules of Court, subject
to the provisions of section 4 of the same Rule that all criminal actions
either commenced by complaint or by information shall be prosecuted
under the direction and control of the Fiscal." (Emphasis supplied)
Therefore, although the private prosecutors may be permitted to
intervene, they are not in control of the case, and their interests are
subordinate to those of the People of the Philippines represented
by the fiscal. 9 The right which the procedural law reserves to the
injured party is that of intervening in the prosecution for the sole purpose
of enforcing the civil liability for the criminal action and not
of demanding punishment of the accused. 10 As explained in People v.
Orais: 11
... the position occupied by the offended party is subordinate to that of the
promotor fiscal because, as promotor fiscal alone is authorized to
represent the public prosecution, or the People of the Philippine Islands, in
the
prosecution of offenders, and to control the proceeding, and as it is
discretionary with him to institute and prosecute a criminal proceeding,
being at liberty to commence it or not, depending upon whether or not
there is, in his opinion, sufficient evidence to establish the guilt of the
accused beyond reasonable doubt, except when the case is pending in the
Court of First Instance, the continuation of the offended
party's intervention depends upon
the continuation of the proceeding. Consequently, if the promotor fiscal
desists from pressing the charge or asks the competent Court of first
Instance in which the case is
pending for the dismissal thereof, and said court grants the petition, the
intervention of the person injured by the commission of the offense ceases
by virtue of the
principle that the accessory follows the principal. Consequently, as the
offended party is not entitled to represent the People of the Philippine
Islands in the prosecution of a public offense, or to control the proceeding
once it is commenced, and as his right to intervene therein is subject to the
promotor fiscal's right of control, it cannot be stated that an order of
dismissal decreed upon petiton of the promotor fiscal himself deprives the
offended party of his right to appeal from an order overruling a complaint
or information, which right belongs exclusively to the promotor fiscal by
virtue of the provisions of section
44 of General Orders, No. 58. To permit a person injured by the
commission of an offense to appeal from an order dismissing a criminal
case issued by a Court of First Instance upon petition of the promotor
fiscal, would be tantamount to giving said offended party of the direction
and control of a criminal proceeding in violation of the provisions of the
above-cited section 107 of General Orders, No.
58.
Consequently, where from the nature of the offense, or where the law
defining and punishing the offense charged does not provide for
an indemnity, the offended party may not intervene in the prosecution of
the offense. 12
There is no question that the Solicitor General represents the People of the
Philippines or the State in criminal proceedings pending either in the Court
of Appeals or in this Court. Thus, Section
1 of Presidential Decree No. 478, "Defining the Powers and
Functions of the Office of the Solicitor General", provides:
SECTION 1. Function and Organization. (1) The Office of the Solicitor
General shall represent the Government of the Philippines, its agencies
and instrumentalities and its officials and agents in any litigation,
proceeding, investigation or matter requiring the services of a lawyer. ...
The office of the Solicitor General shall constitute the law office of the
Government, and such, shall discharge duties requiring the services of a
lawyer. It shall have the following specific powers and functions:
(a) Represent the Governemnt in the Supreme Court and the Court of
Appeals in all criminal proceedings; represent the Government and its
officers in the Supreme Court, the Court of Appeals, and all other courts or
tribunals in all civil actions and special proceedings in which the
Government
or any officer thereof in his official capacity is the party.
xxx xxx xxx
(k) Act and represent the Republic and/or the people before any court,
tribunal, body or commission in any matter, action or proceeding
which in his opinion, affects the welfare of the people as the ends of
justice may require.
xxx xxx xxx
It is evident, therefore, that since the Solicitor General alone is authorized
to represent the State or the People of the Philippines the interest of the
private prosecutors is subordinate to that of the State and they cannot be

allowed to take a stand inconsistent with that of the Solicitor General, for
that would be tantamount to giving the latter the direction and control of
the criminal proceedings, contrary to the provisions of law and the settled
rules on the
matter.
Moreover, the position taken by the Solicitor General in recommending
the remand of the case to the trial court is not without any plausible
justification. Thus, in support of his contention that the rendition of the
decision and the resolution on the subsequent motions by the respondent
Judge were not free from suspicion of bias and prejudice, the Solicitor
General stated:
In alleging bias and manifest partiality on the part of respondent judge,
petitioners assert that:
(a) Respondent judge kept improper contact with and was illegally
influenced by the Larrazabals in connection with the decision of the two
cases against petitioners herein;
(b) In the latter part of 1973, with the trial of the Tan cases still in progress,
respondent judge received, through one of his court stenographers, two
bottles of whisky from Mayor Inaki Larrazabal,
brother and uncle of the deceased victims Feliciano and Francisco
Larrazabal;
(c) On one occasion, Mayor Larrazabal had a short talk with respondent
judge, after which the latter received from one of the private prosecutors a
bottle of wine wrapped in a newspaper which was "thick" and "bulky" and
which allegedly contained "something else inside";
(d) Respondent judge prepared the decision in the Tan cases based on the
memorandum of the prosecution which was literally copied in said
decision although with some corrections; and
(e) After an alleged meeting with Mayor Inaki Larrazabal, respondent judge
amended his already prepared decision in the two criminal cases involved
herein by changing the penalty of double life sentence for the double
murder charge against the petitioners to the death penalty.
The foregoing alleged irregularities are mainly supported by an affidavit
executed on June 26,
1975 by Gerardo A. Makinano Jr., court stenographer of the Circuit
Criminal Court, Tacloban City (Annex "E", Petition). The truth of the
charges made in such affidavit are denied by respondent judge (in his
answer to the instant petition dated October 11, 1975), who in turn claims
that it was petitioners who tried to bribe him into acquitting them in the
aforesaid criminal cases, after they
were illegally furnished a copy of the draft of his decision of conviction by
the same court
stenographer Gerardo A. Makinano Jr. (please see Answer of respondent
judge, pp. 12-13). Unlike in the cases of Mateo vs. Villaluz, 50 SCRA 191
(1973), and Castillo vs. Juan, 62 SCRA 124 (1974) relied upon mainly by
herein petitioners, the facts alleged as constituting the grounds for
disqualifying the respondent judge in the instant petition are disputed.
CRIMINAL PROCEDURE RULE 110
Apart from the sworn statements submitted before this Court in support
or in denial of the alleged bribery of respondent judge, we have been
informed of evidence obtained by the National Bureau of Investigation
when it cannot appropriate for us at this time, however, and we are unable
to do so, to submit to this Court definite conclusions on the charges and
counter-charges. An exhaustive inquiry and open hearing should perhaps
precede the making of categorical conclusions. But we are persuaded that
there are bases for stating that the rendition of respondent Judge's
decision and his resolutions on the motions for new trial were not free
from suspicion of bias and prejudice
(See Martinez Gironella, 65 SCRA 245 ).
Considering the circumstances of the instant case, the seriousness of the
charges and counter-charges and the nature of the evidence on hand to
support them, we feel that respondent Judge appeared to have been
heedless to the oft-reiterated admonition addressed to trial judges to
avoid even the impression of the guilt or innocence of the accused being
dependent on prejudice or
prejudgment (Fernando, J., Concurring opinion, Martinez Gironella, supra,
at 252). ...
It is undisputed that the sole purpose of courts of justice is to enforce the
laws uniformly and impartially without regard to persons or their
circumstances or the opinions of men. A judge, according to Justice Castro,
now Chief Justice of this Court, should strive to be at all times "wholly free,
disinterested, impartial and independent. Elementary due process requires
a hearing before an impartial and disinterested tribunal. A judge has both
the duty of rendering a just decision and the duty, of doing it in a manner
completely free from suspicion as to its fairness and as to his integrity. 13
Thus, it has always been stressed that judges should not only be impartial
but should also appear impartial. For "impartiality is not a technical
conception, It is a state of mind" 14 and, consequently, the "appearance of
impartiality is an essential manifestation of its reality. 15 It must be
obvious, therefore, that
while judges should possess proficiency in law in order that they can
competently construe and enforce the law, it is more important that they
should act and behave in such a manner that the parties before them
should have confidence in their impartiality.
It appears, however, that respondent Judge is no longer in the judicial
service, hence, the question as to whether or not he should be disqualified
from further proceeding with the aforementioned criminal cases has
already become moot.
WHEREFORE, this Court grants the petition and hereby demands the case
to the trial court in order that another Judge may hear anew petitioners'
motion for new trial and to resolve the issue accordingly on the basis of
the evidence. No Special pronouncement as to costs.
Fernando, (Chairman), Barredo, Aquino, and concepcion Jr. JJ., concur.
Republic of the Philippines SUPREME COURT Manila
EN BANC
G.R. No. 46371 February 7, 1940
FORTUNATO N. SUAREZ, petitioner, vs.
SERVILLANO PLATON, Judge of Court of First Instance of Tayabas, The
PROVINCIAL FISCAL OF TAYABAS, VIVENCIO ORAIS and DAMIAN
JIMENEZ, respondents.
Godofredo Reyes for petitioner.
Provincial Fiscal of Tayabas Hermogenes Caluag for respondents.
LAUREL, J.:
This is an original petition for the peremptory writ
of mandamus filed by Fortunato N. Suarez with this court, to compel the
respondent judge to reinstate criminal case No. 6426 of the Court of First
Instance of Tayabas so that the case may proceed to trial in the ordinary
course.
It appears on May 9, 1935, Lieutenant Vivencio Orais, of the Philippine
Constabulary, one of the respondents in this case, filed a complaint under
oath with the justice of the peace of Calauag, Province of Tayabas,
charging the petitioner herein, Fortunato N. Suarez, and one Tomas
Ruedas, with sedition under Article 142 of the Revised Penal Code. The
complaint, upon preliminary examination, was docketed and given due
course. While the said case was pending preliminary investigation,
Lieutenant Orais, in obedience to an order of the Provincial Commander of
Tayabas,
moved for the temporary dismissal of the case. This motion was granted by
the justice of the peace of Calauag on May 20, 1935, and the case thus
dismissed.
At the instance of the petitioner herein, Fortunato N. Suarez, the deputy
provincial fiscal of Tayabas, Perfecto R. Palacio, in turn charged Lieutenant
Vivencio Orais and Damian Jimenez in the justice of the peace court of
Calauag with the crime of arbitrary detention committed, according to the
information under date of July 8, 1935, as follows:
That on or about the 9th day of May, 1935, in the municipality of Calauag,
Province of Tayabas, P.I., and within the jurisdiction of this Court, the
accused Vivencio Orais being then a public officer to wit: a second
lieutenant of the Philippine Constabulary duly appointed and qualified as
such and detailed in the Province of Tayabas, without
warrant of arrest and without any legal ground whatsoever, moved by
personal grudge and ill-feeling which he entertained against Attorney
Fortunato Suarez, did, then and there willfully, unlawfully and feloniously
arrest and detain said Attorney Fortunato Suarez in the train while the
latter was going to Calauag, and with the purpose of concealing the
illegality of said arrest and detention of said
Fortunato Suarez said accused Vivencio Orais conniving with the other
accused, Damian Jimenez, justice of the peace of the said municipality,
prepared and subscribed under oath before said Fortunato Suarez with the
commission of the crime of sedition; that the said justice of the peace
Damian Jimenez, conniving with the other accused Vivencio Orais with the
same purpose of concealing the illegality of the arrest and detention of
said Fortunato Suarez, without legal grounds whatsoever willfully and

unlawfully issued an order declaring that there were merits in the
complaint thereby
sanctioning the illegal and unjust arrest and detention of Fortunato Suarez
who was kept in the municipal jail of Calauag for eight hours.
The justice of the peace of Calauag, being one of the accused, the
preliminary examination was conducted by the justice of the peace of
Lopez, Tayabas, who thereafter bound the defendants over to
the Court of First Instance, where the case was docketed as criminal case
No. 6426. While the case was pending in the latter court, on petition, of
the accused, the provincial fiscal of Tayabas, Ramon Valdez y Nieto,
reinvestigated the case. After such reinvestigation, he filed on April 23,
1936, a motion for the dismissal of the case. Fortunato N. Suarez, the
petitioner herein, on May 5, 1936, asked the court to appoint Attorney
Godofredo Reyes as acting provincial fiscal to handle the prosecution,
alleging, among other things, that the provincial fiscal had no courage to
prosecute the accused. On
May 11, 1936, Attorney Godofredo Reyes entered his appearance as
private prosecutor, and vigorously objected to the motion of dismissal filed
by the provincial fiscal. The Bar Association of Tayabas, through its
president, Emiliano A. Gala, entered its appearance as amicus curiae and
likewise objected to the dismissal of the case. On August 14, 1936, the
then presiding judge of Branch
I of the Court of First Instance of Tayabas, Hon. Ed. Gutierrez David, after
hearing, denied the motion, ruling that there was prima
facie case against the accused. The court, upon petitioner of the provincial
fiscal, designated Deputy Provincial Fiscal Perfecto R. Palacio to handle the
prosecution. But Fiscal Palacio, being apparently of the same opinion as
the provincial fiscal, declined to proceed, and moved that a practicing
attorney or a competent attorney in the Bureau of Justice be designated in
his stead. Accordingly, the provincial fiscal of Sorsogon, Jacinto Yamson, at
the request of the judge a quo was assigned by the Department of Justice
to handle the prosecution of the case. Fiscal Yamson after going over the
case likewise entered a nolle prosequi. So, on
September 23 1936, he moved for reconsideration of the court's order of
August 14, 1936, denying the motion for dismissal presented by the
provincial fiscal. Attorney Godofredo Reyes again vigorously objected to
this motion on the ground that there was sufficient proof to warrant the
prosecution of the accused. The case in this state when Judge Emilio Pena
was appointed to the place of Judge Gutierres David. Later, Judge
Serviliano Platon, one of the respondents herein, was appointed to preside
over case No. 6426 corresponded, and the case was thus transferred to
that sala for action. Judge Platon, after consideration of all the facts and
proofs submitted in the case, considered the court's order of August 14,
1936, and dismissed the case, holding that the evidence was insufficient to
convict the accused of the crime charged. From this order, the petitioner
herein appealed to this Court and the case was here docketed as G.R. No.
45431. On June 30, by a closely divided court, the appeal was dismissed.
The petitioner has now filed with this Court the present petition, in which,
as stated in the opening paragraph of this decision, we are asked to issue
the peremptory writ of mandamus to compel the respondent judge to
reinstate the criminal case which had been ordered dismissed by the said
judge. The petitioner gives the following grounds for the issuance of said
writ:
CRIMINAL PROCEDURE RULE 110
Que el mencionado Juez Hon. Servillano Platon incurrio en un abuso
manifiesto de discrecion al sobreseer la mencionada causa contra los otros
dos recurridos Vivencio Orais y Damian Jimenez, despues de que el
Juzgado de Paz de Lopez habia declarado que existen meritos para
proseguirse contra los mismos y despues de que un Juez de Primera
Instancia de la misma categoria que el Juez Platon habia rehusado
sobreseer la causa por creer que existian meritos para proceder contra los
acusados.
Que el mencionado Juez Hon. Servillano Platon incurrio en un abuso grave
de discrecion por cuanto que las pruebas existentes en la causa, en las
cuales se fundo el fiscal provincial al presentar la querella en el Juzgado de
Paz, demuestran de un modo claro y concluyente el delito cometido y la
responsibilidad de los acusados.
Que el Hon. Servillano Platon incurrio en un grave abuso de discrecion al
juzgar dichas pruebas con un criterio de un Tribunal "sentenciador" cuando
que su unica mision era considerarlas bajo el criterio de un tribunal
meramente "investigador". (E.U. vs. Barredo, 32 Jur. Fil., 462, 482.)
Should the writ of mandamus prayed for be issued? We observe that after
the filing of the information by the provincial fiscal of Tayabas for arbitrary
detention against Lieutenant Orais and the justice of the peace of Lopez,
the same fiscal moved for the dismissal of the case, because 'despues' de
una reinvestigacion de los hechos que dieron margen a la presente causa, y
examinada la misma con la debida atencion que su importancia require asi
como las circunstancias del caso, ha llegado a la conclusion de que no hay
base justificativa para la prosecucion de esta causa." The grounds for this
action of the provincial fiscal are stated in his said motion for dismissal of
April 23, 1936:
En sintesis, los hechos son: que el dia 9 de mayo de 1935, en ocasion en
que el abogado Fortunato N. Suarez y el teniente Vivencio Orais de la
constabularia, se encontraron en el tren que iba a Calauag, aquel para
defender a los sakdalistas acusados en este municipio, y este para atender
a sus deberes officiales en relacion con el orden publico
algo anormal, por causa de los mismos sakdalistas en dicho municipio de
Calauag, ambos tuvieron un cambio de palabras con motivo del mismo
asunto que les llevaba alli, y
por haber el abogado Suarez proferido en tono acalorado, de que los
sakdalistas estaban perseguidos en Calauag por las autoridades
municipales y la constabularia, y que era un abuso de las autoridades dicha
persecusion, trayendo al propio tiempo a colacion lo ocurrido en los
municipios de Cabuyao y Sta Rosa de la Provincia de Laguna, que se
levantaron contra el gobierno por los abusosy matanzas de sakdalistas en
dichos pueblos, y que lo mismo podia tenerlugar en esta Provincia de
Tayabas, y que el podia incitar a lossakdalistas, teniendo en cuenta que con
anterioridad el teniente Oraishabia recibido informes de
que los sakdalistas en Calauag habian sido entrevistados por Tomas
Ruedas, uno de los acusados en el municipiode Sariaya por el delito de
conspiracion para cometer sedicion, que el abogado ayudaria a los
sakdalistas incintandoles a la sedicion,fue el motivo por el cual el arresto al
abogado Suarez, conduciendoleal municipio como asi lo hizo con respecto
a Tomas Ruedas, quien salio al encuentro de
Suarez cuando llego a la estacion del tren en Calauag, diciendo a este que
ya tenia arreglado a los sakdalistas en Calauag. Que despues de haberles
arrestado, presento una denuncia contra estos por el delito de sedicion, en
el juzgado de paz de Calauag, aunque por instrucciones de sus superiores,
dicho Teniente Vivencio Orais pidio el sobreseimiento provisional de su
denuncia.
Aunque el abogado Suarez niega que el haya profiredo palabras sediciosas,
ni que haya incitado a los sakdalistas a actos de violenciacontra el gobierno
constituido o contra las autoridades y oficiales, sin embargo, de las
declaraciones de los testigos tanto de la acusacioncomo de la defensa en lo
que son consistentes, se desprende claramente que el abogado Suarez ha
hecho manifestaciones que pueden considerarse como sediciosas y
subversivas, maxime
teniendo en consideracion el estado caotico porque atravesaba el
municipio de Calauag con motivo de la campana ordenada porel gobierno
contra los sakdalistas, a raiz de los disturbiosy desordenes publicos que
tuvieron lugar en los municipios de Cabuyao y Sta. Rosa.
La presente causa se ha iniciado a denuncia del abogado Sr. Godofredo
Reyes contra el teniente Vivencio Orais de la constabularia y el juez de paz
Damian L. Jimenez, por el delito de detencion arbitraria.
El delito de detencion arbitraria esta previsto y castigado en el articulo 124
del Codigo Penal Revisado, que dice asi:
El funcionario o empleado publico que detuviere a una persona sinmotivo
legal alguno sera castigado; etc. . . .
Sin perder de vista que la base angular de todos los procesoscriminales son
los delitos, y que a la acusacion corresponde determinarexactamente si se
ha cometido o no el delito, el que suscribe, haanalizado este extremo,
relacionando los hechos que determinaron laalegada detencion arbitraria
de que fue objecto el abogado FortunatoN. Suarez, con las circunstancias y
los
antecedentes de la situacion porque atravesaba entonces la Provincia de
Tayabas al igual que la Provincia de Laguna, acondicionandolos con las
palabras proferidas porel abogado Suarez que si en su concepto no son
sediciosas y subversivas,por lo menos eran abusivas para con las
autoridades del gobierno, especialmente con las de la Provincia de Tayabas
a las cuales se referian. Asi entendido el aspecto legal de la cuestion, y
haciendo aplicacion de lo que nos dice la misma ley en lo en que consiste
la detencion arbitraria, que para que exista este delito, la detencion
tenia que haber sido sin motivo legal alguno, creemos que habia algun
motivo legal para la detencion del abogado Sr. Suarez y su companero
Tomas Ruedas, y estaba justificada por haber ellos mismos dado lugar a
ello. (E.U. vs. Vallejo y otro, 11 Jur. Fil., 202; E.U. vs. Santos, 36 Jur. Fil.,
909.)
We have not overlooked the fact that this motion for dismissal was denied
by Judge Gutierrez David of August 14, 1936. It appears, however, that
subsequently Fiscal Yamsom who, as stated above was assigned by the
Department of Justice to conduct the prosecution of the case, moved for
reconsideration of the Court's order of August 14, 1936, denying the
motion for dismissal. Judge Servillano Platon granted the motion for
reconsideration and dismissed the case. In this motion for reconsideration
not only does Fiscal Yamson reiterate the arguments advanced by Fiscal
Valdez y Nieto in the latter's motion for dismissal, but adds:

(a) En lo que respecta al acusado Teniente Orais, no existe prueba alguna
en los autos de esta causa que dicho acusado haya arrestado al abogado
Suarez y Tomas Ruedas, solamente por el mero gusto de arrestarles.
Tampoco existe pruebas de que el teniente Orais haya sido inducido por
motivos de venganza o resentimiento alguno contra dicho abogado Suarez
y Tomas Ruedas al arrestales en el dia de autos. Aunque es verdad que el
Teniente Orais ha sido acusado ante el Juzgado de pazde Sariaya por
'abusos de autoridad', sin embargo, no consta en los autos de dicha causa
que el abogado Suarez y Tomas Ruedas hayan intervenido como abogado
ni parte ofendida o testigos en la misma, por tanto, no vemos razon alguna
para que el Teniente Orais tenga motivos de vengarse de estos por
dicha causa. (Vease pag. 1, Anexo O.) A falta de prueba sobre estos hechos,
en nuestra humilde opinion, existe a favor de Teniente Orais la presuncion
de haber cumplidocon
su deber al arrestar al abogado Fortunato N. Suarez y Tomas Ruedas,
teniendo en cuenta las circunstancias extraordinarias reinantes entonces
en Calauag a raiz de los disturbios y desordenes publicos que tuvieron
lugar en los municipios de Cabuyao y Sta. Rosa de la Provincia de Laguna,
dias antes de ocurrir el suceso de autos. Se debe
tener en cuenta, ademas, el hecho de que despues de haber arrestado al
abogado Fortunato N. Suarez y Tomas Ruedas, el aqui acusado Teniente
Vivencio Orais presento denuncia inmediatamente ante su coacusado
Damian Jimenez, juez
de paz de Calauag, por infraccion del articulo 142 del Codigo
Penal Revisado.
We cannot overemphasize the necessity of close scrutiny and investigation
of prosecuting officers of all cases handled by them, but whilst this Court is
averse to any form of vacillation by such officers in the prosecution of
public offenses, it is unquestionable that they may, in appropriate cases, in
order to do justice and avoid injustice, reinvestigate cases in which they
have already filed the corresponding informations. In the language of Mr.
Justice Sutherland of the Supreme Court of the United States, the
prosecuting officer "is the representative not of an ordinary party to a
controversy, but of a sovereignty whose obligation to govern impartially is
as compelling as its obligation to govern at all; and whose interest,
therefore, in a criminal prosecution is not that it shall win a case, but that
justice shall be done. As such, he is in a peculiar and very definite sense the
servant of the law, the two fold aim of which is that guilt shall not escape
or innocence suffer. He may prosecute with earnestness and vigor
indeed, he should do so. But, while he may strike hard blows, he is not at
liberty to strike foul ones. It is as much his duty to refrain from improper
methods calculated to produce a wrongful conviction as it is to use every
legitimate means to bring about a just one," (69 United States Law Review,
June, 1935, No. 6, p. 309.)
Considering all the circumstances, we cannot say that Judge Servillano
Platon, in granting the motion for the dismissal of the case for arbitrary
detention against Lieutenant Orais and the justice of the peace of Lopez,
abused his discretion so flagrantly as to justify, in the interest of justice, a
departure from the well-settled rule that an inferior tribunal in the
performance of a judicial act within the scope of its jurisdiction and
discretion cannot be
controlled by mandamus. This is especially true in a matter involving the
examination of evidence and the decision of questions of law
and fact, since such a duty is not ministerial. (High, Extraordinary Legal
Remedies, sec. 156, pp. 173-175). Upon the other hand, it should be
CRIMINAL PROCEDURE RULE 110
observed that in the case of Lieutenant Orais, in the face of the
circumstances surrounding the arrest as set forth in the two motions for
dismissal by the provincial fiscal of Tayabas, which facts and circumstances
must have been investigated and duly weighed and considered by the
respondent judge of the Court of First Instance of Tayabas, the arrest
effected by Lieutenant Orais cannot be said to have be entirely unjustified.
If, "under trying circumstances and in a zealous effort to obey the orders of
his superior officer and to enforce the law, a peace officer makes a mere
mistake in good faith, he should be exculpated. Otherwise,
the courts will put a premium on crime and will terrorize peace officers
through a fear of themselves violating the law. See generally Voorhees on
Arrest; 5 Corpus Juris, pp. 399, 416; 2 R.C.L., 450. (United States vs. Santos,
36 Phil., 853, 855.)"
The petition is hereby dismissed, without pronouncement regarding cost.
So ordered.
Avancea, C.J., Villa-Real, Diaz and Concepcion, JJ., concur.
Separate Opinions
MORAN, J., dissenting:
The majority decision takes for granted that which precisely is in issue in
this case.
In the morning of May 9, 1935, the accused, Lieutenant Vivencio Orais, and
Attorney Fortunato Suarez were both in the train on their way to Calauag,
Tayabas. In the conversation which ensued
between them, Attorney Suarez made certain remarks about the abuses of
authority committed by the officers of the Government who conducted
the raid against the Sakdalistas at Sariaya. Upon inquiry of Lieutenant Orais
as to what party Attorney Suarez belonged, and, pressed upon to state
whether or not he was a Sakdalista, Attorney Suarez replied "may be". On
the strength of these facts, Lieutenant Orais arrested Attorney Suarez for
the alleged offense of uttering seditious words, and conducted him to the
municipal building of Calauag and there lodged him in jail. He filed in the
justice of the peace court of the same municipality an information against
Attorney Suarez for uttering seditious words, in violation of article 142 of
then Revised Penal Code. On the day following, Lieutenant Orais, acting
under the instruction of his superior, moved for the dismissal of the case.
Thereafter, the deputy provincial fiscal of Tayabas, at the instance of
Fortunato Suarez, filed an information against Lieutenant Orais and
Damian Jimemez, the latter as justice of the peace of Calauag, Tayabas, for
the crime of arbitrary detention, the information reading as follows:
That on or about the 9th day of May, 1935, in the municipality of Calauag,
Province of Tayabas, P.I., and within the jurisdiction of this Court, the
accused Vivencio Orais being then a public officer to wit: a second
lieutenant of the Philippine Constabulary duly appointed and qualified
as such and detailed in the province of Tayabas, without any legal ground
whatsoever, moved by personal grudge and ill- feeling which he
entertained against Attorney Fortunato Suarez, did, then and there
willfully, unlawfully and feloniously arrest and detain said Attorney
Fortunato Suarez in the train while the latter was going to Calauag; and
with the purpose of concealing the illegality of said arrest and detention of
said Fortunato Suarez said accused Vivencio Orais conniving with the other
accused Damian Jimenez, justice of the peace of said municipality,
prepared and subscribed under oath before said justice of the peace a
complaint falsely charging said Fortunato Suarez with the commission of
the crime of sedition; that the said justice of the peace Damian Jimenez,
conniving with the other
accused Vivencio Orais with the same purpose of concealing the illegality
of the arrest and detention of said Fortunato Suarez, without legal grounds
whatsoever willfully and unlawfully issued an order declaring that there
were merits in the complaint thereby sanctioning the illegal and unjust
arrest and detention of Fortunato Suarez who was kept in the municipal
jail of Calauag for eight hours.
The justice of the peace of Lopez, Tayabas, conducted the preliminary
investigation, and, thereafter, remanded the case to the Court of First
Instance. On April 23, 1936, the provincial fiscal
moved for the dismissal of the case upon the alleged ground, that after a
supposed reinvestigation, the new facts established therein disclose no
sufficient evidence to sustain the information. The motion was overruled
by Judge Gutierrez David, then presiding the second branch of the Court of
First Instance of Tayabas. Jacinto Yamson, appointed as special fiscal to
take charge of the case, moved for the reconsideration of the order of
Judge Gutierrez
David. To this motion, Attorney Suarez, through counsel, interposed
an opposition. Judge Servillano Platon, then presiding the first
branch of the Court of First Instance of Tayabas, acceded to the motion
and dismissed the information. From this order, Attorney Suarez appealed,
but the appeal was dismissed by this Court on the ground that mandamus
was the proper remedy. Accordingly, the present action is filed in this
Court.
The sole question here involved is whether or not, according to the
evidence in the hands of the prosecution, there is sufficient ground to
proceed with the criminal case for arbitrary detention against Lieutenant
Vivencio Orais and Justice of the Peace Damian Jimenez. A close
examination of such evidence, which is attached to the record, will disclose
that the arrest of Fortunato Suarez by Lieutenant Orais in the morning of
May 9, 1935, was prompted obviously, not by official duty, but by personal
resentment against certain statements made by the former. I have taken
pains to scrutinize carefully the testimonies of all the witnesses who
testified in the preliminary investigation, and they show nothing seditious
in the utterances of Attorney Suarez on the occasion in question. My
conclusion, then, is that the detention of Attorney Suarez by Lieutenant
Orais was arbitrary, and that the charge made against Lieutenant Orais for
arbitrary detention is well founded on facts.
The fiscal, in moving for the dismissal of the case before the Court
of First Instance of Tayabas, mentioned a reinvestigation conducted by him
of the case, in which he supposedly found a new evidence warranting its
dismissal. Counsel for Attorney Fortunato Suarez, however, insisted on the
production of such new evidence before the court, but the prosecution
could not respond to such demand. This is an indication that the supposed
additional evidence never existed.
But the majority, instead of deciding the issue as to whether or not the
evidence in the hands of the prosecution was sufficient to proceed with
the charge for arbitrary detention, takes for granted

that such evidence was not sufficient, relying upon the assumption that
the "circumstances surrounding the arrest as set forth in the two motions
for dismissal by the provincial fiscal of Tayabas . . . must have been
investigated and duly weighed and considered by the respondent judge of
the Court of First Instance of Tayabas." In other words, the majority
assumes that which is the subject of the petitioner's challenge, which is
tantamount to a refusal to consider his complaint after he has been told
that he may come to this court by mandamus proceedings.
Although a broad discretion must be conceded to prosecuting attorneys
and trial courts in the determination of sufficient grounds for dismissing or
continuing a criminal prosecution, yet when, as in this case, the basis for
the action of both officers fiscal and judge
is produced in this court, and we are called upon to determine whether,
on the basis of such evidence and determine the question at issue. And, in
the present case, it is my opinion that the evidence we have in the record
sufficiently shows that the prosecution for arbitrary detention against
Lieutenant Orais must take its course, and that its dismissal without trial by
the Court of First Instance is without basis on facts and constitutes an
abuse of discretion.
I agree, however, that there is no reason for including in the charge for
arbitrary detention the justice of the peace of Calauag, Damian Jimenez.
The evidence shows no connection between him and Lieutenant Orais in
the arbitrary arrest of Attorney Fortunato Suarez.
My vote, therefore, is that the petition for mandamus must be granted
with respect to the prosecution against Lieutenant Vivencio Orais, but
denied with respect to the prosecution against Damian Jimenez.
Imperial, J., concurs in the result.
CRIMINAL PROCEDURE RULE 110
EN BANC
June 30, 1987
reconsideration of the order was denied in the order of August 5,
1977 but the arraignment was deferred to August 18, 1977 to afford time
for petitioner to elevate the matter to the appellate court. 3
G.R. No. L-53373
MARIO FL. CRESPO, petitioner, vs.
HON. LEODEGARIO L. MOGUL, Presiding Judge, CIRCUIT CRIMINAL
COURT OF LUCENA CITY, 9th Judicial Dist., THE PEOPLE OF THE
PHILIPPINES, represented by the SOLICITOR GENERAL, RICARDO
BAUTISTA, ET AL., respondents.
GANCAYCO, J.:
The issue raised in this ease is whether the trial court acting on a motion to
dismiss a criminal case filed by the Provincial Fiscal upon instructions of the
Secretary of Justice to whom the case was elevated for review, may refuse
to grant the motion and insist on the arraignment and trial on the merits.
On April 18, 1977 Assistant Fiscal Proceso K. de Gala with the approval of
the Provincial Fiscal filed an information for estafa against Mario Fl. Crespo
in the Circuit Criminal Court of Lucena City which was docketed as Criminal
Case No. CCCIX-52 (Quezon)
'77.1 When the case was set for arraigment the accused filed a
motion to defer arraignment on the ground that there was a
pending petition for review filed with the Secretary of Justice of the
resolution of the Office of the Provincial Fiscal for the filing of the
information. In an order of August 1, 1977, the presiding judge, His Honor,
Leodegario L. Mogul, denied the motion. 2 A motion for
A petition for certiorari and prohibition with prayer for a preliminary writ
of injunction was filed by the accused in the Court of Appeals that was
docketed as CA-G.R. SP No. 06978. 4 In an order of August 17, 1977 the
Court of Appeals restrained Judge Mogul from proceeding with the
arraignment of the accused until further orders of the Court. 5 In a
comment that was filed by the Solicitor General he recommended that the
petition be given due
course. 6 On May 15, 1978 a decision was rendered by the Court of
Appeals granting the writ and perpetually restraining the judge from
enforcing his threat to compel the arraignment of the accused in
the case until the Department of Justice shall have finally resolved the
petition for review. 7
On March 22, 1978 then Undersecretary of Justice, Hon.Catalino Macaraig,
Jr., resolving the petition for review reversed the resolution of the Office of
the Provincial Fiscal and directed the fiscal to move for immediate
dismissal of the information filed against the accused. 8 A motion to
dismiss for insufficiency of evidence was filed by the Provincial Fiscal dated
April 10, 1978 with the trial court, 9 attaching thereto a copy of the letter
of Undersecretary Macaraig, Jr. In an order of August 2, 1978 the private
prosecutor was given time to file an opposition
thereto.10 On November 24, 1978 the Judge denied the motion and
set the arraigniment stating:
ORDER
For resolution is a motion to dismiss this rase filed by the procuting fiscal
premised on insufficiency of evidence, as suggested by the Undersecretary
of Justice, evident from
Annex "A" of the motion wherein, among other things, the Fiscal is urged
to move for dismissal for the reason that the check involved having been
issued for the payment of a pre- existing obligation the Hability of the
drawer can only be
civil and not criminal.
The motion's thrust being to induce this Court to resolve the innocence of
the accused on evidence not before it but on that adduced before the
Undersecretary of Justice, a matter that not only disregards the
requirements of due process
but also erodes the Court's independence and integrity, the
motion is considered as without merit and therefore hereby
DENIED.
WHEREFORE, let the arraignment be, as it is hereby set for
December 18, 1978 at 9:00 o'clock in the moming. SO ORDERED. 11
The accused then filed a petition for certiorari, prohibition and
mandamus with petition for the issuance of preliminary writ of prohibition
and/or temporary restraining order in the Court of Appeals that was
docketed as CA-G.R. No. SP-08777. 12 On January
23, 1979 a restraining order was issued by the Court of Appeals against the
threatened act of arraignment of the accused until further orders from the
Court. 13 In a decision of October 25, 1979 the Court of Appeals dismissed
the petition and lifted the restraining order of January 23, 1979. 14 A
motion for
reconsideration of said decision filed by the accused was denied in a
resolution of February 19, 1980. 15
Hence this petition for review of said decision was filed by accused
whereby petitioner prays that said decision be reversed and set aside,
respondent judge be perpetually enjoined from enforcing his
threat to proceed with the arraignment and trial of petitioner in said
criminal case, declaring the information filed not valid and of no legal force
and effect, ordering respondent Judge to dismiss the
said case, and declaring the obligation of petitioner as purely civil. 16
In a resolution of May 19, 1980, the Second Division of this Court without
giving due course to the petition required the respondents to comment to
the petition, not to file a motiod to dismiss, within ten (10) days from
notice. In the comment filed by the Solicitor General he recommends that
the petition be given due course, it being meritorious. Private respondent
through counsel filed his reply to the comment and a separate conunent to
the petition asking that the petition be dismissed. In the resolution of
February
5, 1981, the Second Division of this Court resolved to transfer this
case to the Court En Banc. In the resolution of February 26, 1981, the Court
En Banc resolved to give due course to the petition.
Petitioner and private respondent filed their respective briefs while the
Solicitor General filed a Manifestation in lieu of brief reiterating that the

decision of the respondent Court of Appeals be reversed and that
respondent Judge be ordered to dismiss the information.
It is a cardinal principle that an criminal actions either commenced by
complaint or by information shall be prosecuted under the direction and
control of the fiscal. 17 The institution of a criminal action depends upon
the sound discretion of the fiscal. He may or may not file the complaint or
information, follow or not fonow that presented by the offended party,
according to whether the evidence in his opinion, is sufficient or not to
establish the guilt of
the accused beyond reasonable doubt. 18 The reason for placing the
criminal prosecution under the direction and control of the fiscal is to
prevent malicious or unfounded prosecution by private
persons. 19 It cannot be controlled by the
complainant. 20 Prosecuting officers under the power vested in
them by law, not only have the authority but also the duty of prosecuting
persons who, according to the evidence received from the complainant,
are shown to be guilty of a crime committed within the jurisdiction of their
office. 21 They have equally the legal duty not to prosecute when after an
investigation they become convinced that the evidence adduced is not
sufficient to establish
a prima facie case. 22
It is through the conduct of a preliminary investigation 23 that the fiscal
determines the existence of a puma facie case that would warrant the
prosecution of a case. The Courts cannot interfere with the fiscal's
discretion and control of the criminal prosecution. It is not prudent or even
permissible for a Court to compel the fiscal to prosecute a proceeding
originally initiated by him on an information, if he finds that the evidence
relied upon by him is insufficient for conviction. 24 Neither has the Court
any power to order the fiscal to prosecute or file an information within a
certain period of time, since this would interfere with the fiscal's discretion
and control of criminal prosecutions. 25 Thus, a fiscal who asks for the
dismissal of the case for insufficiency of evidence has authority to do so,
and Courts that grant the same commit no error. 26 The fiscal may re-
investigate a case and subsequently move for the
dismissal should the re-investigation show either that the defendant is
innocent or that his guilt may not be established beyond reasonable doubt.
27 In a clash of views between the judge who did not investigate and the
fiscal who did, or between the fiscal and the offended party or the
defendant, those of the Fiscal's should normally prevail. 28 On the other
hand, neither an injunction, preliminary or final nor a writ of prohibition
may be issued by the courts to restrain a criminal prosecution 29 except in
the extreme case where it is necessary for the Courts to do so for the
orderly administration of justice or to prevent the use of the strong arm of
the law in an op pressive and vindictive manner. 30
However, the action of the fiscal or prosecutor is not without any
limitation or control. The same is subject to the approval of the provincial
or city fiscal or the chief state prosecutor as the case maybe and it maybe
elevated for review to the Secretary of Justice who has the power to
affirm, modify or reverse the action or opinion of the fiscal. Consequently
the Secretary of Justice may direct that a motion to dismiss the rase be
filed in Court or otherwise, that an information be filed in Court. 31
The filing of a complaint or information in Court initiates a criminal action.
The Court thereby acquires jurisdiction over the case, which is the
CRIMINAL PROCEDURE RULE 110
authority to hear and determine the case. 32 When after the filing of the The rule therefore in this jurisdiction is that once a complaint or
complaint or information a warrant for the arrest of the accused is issued information is filed in Court any disposition of the case as its dismissal or
by the trial court and the accused either voluntarily submited himself to the conviction or acquittal of the accused rests in the sound discretion of
the Court or was duly arrested, the Court thereby acquired jurisdiction the Court. Although the fiscal retains the direction and control of the
over the person of the prosecution of criminal cases even while the case is already in Court he
accused. 33 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
The preliminary investigation conducted by the fiscal for the purpose of is within its
determining whether a prima facie case exists warranting the prosecution exclusive jurisdiction and competence. A motion to dismiss the case filed
of the accused is terminated upon the filing of the information in the by the fiscal should be addressed to the Court who has the option to grant
proper court. In turn, as above stated, the filing of said information sets in or deny the same. It does not matter if this is done before or after the
motion the criminal action against the accused in Court. Should the fiscal arraignment of the accused or that the motion was filed after a
find it proper to conduct a reinvestigation of the case, at such stage, the reinvestigation or upon instructions of the
permission of the Court must be secured. After such reinvestigation the Secretary of Justice who reviewed the records of the investigation.
finding and recommendations of the fiscal should be submitted to the
Court for appropriate action. 34 While it is true that the fiscal has the quasi In order therefor to avoid such a situation whereby the opinion of the
judicial discretion to determine whether or not a criminal case should be Secretary of Justice who reviewed the action of the fiscal may be
filed in court or not, once the case had already been brought to Court disregarded by the trial court, the Secretary of Justice should, as far as
whatever disposition the fiscal may practicable, refrain from entertaining a petition for review or appeal from
feel should be proper in the rase thereafter should be addressed for the the action of the fiscal, when the complaint or information has already
consideration of the Court, 35 The only qualification is that the been filed in Court. The matter should be left entirely for the
determination of the Court.
action of the Court must not impair the substantial rights of the accused.
36 or the right of the People to due process of law. 36a WHEREFORE, the petition is DISMISSED for lack of merit without
pronouncement as to costs.
Whether the accused had been arraigned or not and whether it was due to
a reinvestigation by the fiscal or a review by the Secretary of Justice SO ORDERED.
whereby a motion to dismiss was submitted to the Court,
the Court in the exercise of its discretion may grant the motion or deny it Yap, Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras,
and require that the trial on the merits proceed for the proper Feliciano, Padilla, Bidin, Sarmiento and Cortes, JJ., concur. Teehankee C.J.,
determination of the case. took no part.
However, one may ask, if the trial court refuses to grant the motion to
dismiss filed by the fiscal upon the directive of the Secretary of Justice will
there not be a vacuum in the prosecution? A state prosecutor to handle
the case cannot possibly be designated by the Secretary of Justice who
does not believe that there is a basis for prosecution nor can the fiscal be
expected to handle the prosecution of the case thereby defying the
superior order of the Secretary of Justice.
The answer is simple.1wphi1 The role of the fiscal or prosecutor as We all
know is to see that justice is done and not necessarily to secure the
conviction of the person accused before the Courts.
Thus, in spite of his opinion to the contrary, it is the duty of the fiscal to
proceed with the presentation of evidence of the prosecution to the Court
to enable the Court to arrive at its own independent judgment as to
whether the accused should be convicted or acquitted. The fiscal should
not shirk from the responsibility of appearing for the People of the
Philippines even under such circumstances much less should he abandon
the prosecution of the case leaving it to the hands of a private prosecutor
for then the entire proceedings will be null and
void. 37 The least that the fiscal should do is to continue to appear
for the prosecution although he may turn over the presentation of
the evidence to the private prosecutor but still under his direction and
control. 38

FIRST DIVISION
[G.R. No. 127107. October 12, 1998]
PETER PAUL DIMATULAC and VERONICA DIMATULAC, petitioners, vs.
HON. SESINANDO VILLON in his capacity as Presiding Judge of the
Regional Trial Court of Pampanga, Branch 54; HON. TEOFISTO
GUINGONA, in his capacity as Secretary of Justice; MAYOR SANTIAGO
YABUT, SERVILLANO YABUT, MARTIN YABUT and FORTUNATO MALLARI,
respondents.
D E C I S I O N DAVIDE, JR., J.:
The issues raised by petitioners in their Memorandum and by the Office of
the Solicitor General in its Comment in this special civil action for
certiorari, prohibition and mandamus under Rule 65 of the Rules of Court
filed by petitioners, children of the deceased Police Officer 3 (PO3) Virgilio
Dimatulac of Masantol, Pampanga, may be summarized as follows:
A. WHETHER THE OFFICE OF THE PROVINCIAL PROSECUTOR
COMMITTED GRAVE ABUSE OF DISCRETION IN: (1) GIVING DUE COURSE TO
THE MOTION FOR REINVESTIGATION BY PRIVATE RESPONDENTS AGAINST
WHOM WARRANTS OF ARREST WERE ISSUED BUT WHO HAD NOT YET
BEEN BROUGHT INTO THE CUSTODY OF THE LAW; and (2) FILING THE
INFORMATION FOR HOMICIDE DESPITE KNOWLEDGE OF THE APPEAL
FROM SAID PROSECUTORS RESOLUTION TO THE OFFICE OF THE
SECRETARY OF JUSTICE.
B. WHETHER PUBLIC RESPONDENT JUDGE ACTED IN EXCESS OF
JURISDICTION IN PROCEEDING WITH THE
ARRAIGNMENT AND IN DENYING PETITIONERS MOTIONS TO SET ASIDE
ARRAIGNMENT AND RECONSIDERATION THEREOF DESPITE HIS
KNOWLEDGE OF THE PENDENCY OF THE APPEAL AND THE SUBMISSION OF
VITAL EVIDENCE TO PROVE THAT MURDER AND NOT HOMICIDE WAS
COMMITTED BY THE ACCUSED.
C. WHETHER PUBLIC RESPONDENT SECRETARY OF JUSTICE COMMITTED
GRAVE ABUSE OF DISCRETION IN RECONSIDERING HIS ORDER FINDING
THAT THE CRIME COMMITTED WAS MURDER AND DIRECTING THE
PROVINCIAL PROSECUTOR TO AMEND THE INFORMATION FROM
HOMICIDE TO MURDER.
The records and the pleadings of the parties disclose the antecedents.
On 3 November 1995, SPO3 Virgilio Dimatulac was shot dead at his
residence in Barangay San Nicolas, Masantol, Pampanga.
On 5 November 1995, a complaint for Murder was filed before the
Municipal Circuit Trial Court (MCTC) of Macabebe-Masantol in Macabebe,
Pampanga, by SPO1 Renato Layug of the Masantol Police Station against
private respondents Mayor Santiago Yabut, Martin Yabut, Servillano Yabut,
Evelino David, Justino Mandap, Casti David, Francisco Yambao, Juan
Magat, Arturo Naguit, Fortunato Mallari, Jesus de la Cruz, Joselito Miranda,
SPO3 Gilberto Malabanan, Aniano Magnaye, Vladimir Yumul, a certain
Danny, and a certain Koyang/Arding. The complaint was docketed as
Criminal Case No. 95-
360.After conducting a preliminary examination in the form of searching
questions and answers, and finding probable cause, Judge Designate
CRIMINAL PROCEDURE RULE 110
Serafin B. David of the MCTC issued warrants for the arrest of the accused
and directed them to file their counter-affidavits.
Only accused Evelino David, Justino Mandap, Juan Magat and Francisco
Yambao were arrested; while only Francisco Yambao submitted his
counter affidavit.
On 1 December 1995, after appropriate proceedings, Judge David issued a
Resolution in Criminal Case No. 95-360 finding reasonable ground to
believe that the crime of murder had been committed and that the
accused were probably guilty thereof. His findings of fact and conclusions
were as follows:
That on or about November 3, 1995, all the accused under the leadership
of Mayor Santiago Docsay Yabut, including two John Does identified only
as Dan/Danny and Koyang/Arding, went to Masantol, Pampanga for the
purpose of looking for a certain PO3 Virgilio Dimatulac.
At first, the accused, riding on [sic] a truck, went to the Municipal Hall of
Masantol, Pampanga inquiring about PO3 Virgilio Dimatulac. Thereafter,
they went to the
house of Mayor Lacap for the purpose of inquiring [about] the [the
location of the] house of PO3 Virgilio Dimatulac, until finally, they were
able to reach the house of said Virgilio Dimatulac at San Nicolas, Masantol,
Pampanga.
Upon reaching the house of PO3 Virgilio Dimatulac, the truck the accused
were all riding, stopped and parked in front of the house of said PO3
Virgilio Dimatulac, some of the accused descended from the truck and
positioned themselves around the house while others stood by the truck
and the Mayor stayed [in] the truck with a bodyguard.
Accused Billy Yabut, Kati Yabut and Francisco Yambao went inside the
house of Virgilio Dimatulac [and] were even offered coffee.
[A]ccused Yabut brothers (Kati and Billy) strongly suggested to Virgilio
Dimatulac to go down to see the Mayor outside in front of his house to say
sorry.
[W]hen Virgilio Dimatulac went down from his house, suddenly [a] gun
shot was heard and then, the son of Virgilio Dimatulac, Peter Paul, started
to shout the following words: What did you do to my father?!
One of the men of Mayor Docsay Yabut shot Virgilio Dimatulac, and as a
consequence, he died; and before he expired, he left a dying declaration
pointing to the group of Mayor Docsay Yabut as the one responsible.
That right after Virgilio Dimatulac was shot, accused Docsay Yabut ordered
his men to go on board the truck and immediately left away leaving Virgilio
Dimatulac bleeding and asking for help.
On their way home to Minalin, accused Santiago Docsay Yabut gave money
to accused John Doe Dan/Danny and Francisco Boy Yambao was asked to
bring the accused John Doe to Nueva Ecija which he did.
Further, accused Santiago Docsay Yabut told his group to deny that they
ever went to Masantol.
The court, after having conducted preliminary examination on the
complainant and the witnesses presented, [is] satisfied that there is a [sic]
reasonable ground to believe that the crime of murder was committed and
that the accused in conspiring and confederating with one another are
probably guilty thereof.
Circumstantial evidence strongly shows the presence of conspiracy.
That in order not to frustrate the ends of justice, warrants of arrest were
issued against Santiago Yabut, Martin Yabut, Servillano Yabut, Francisco
Yambao, Avelino David, Casti David, Catoy Naguit, Fortunato Mallari, Boy
dela Cruz, Lito Miranda and Juan Magat with no bail recommended.
However, with respect to accused Dan/Danny and
Koyang/Arding, the court directed the police authorities
to furnish the court [a] descriptio personae of the accused for the purpose
of issuing the needed warrant of arrest.
The accused were furnish [sic] copies of the complaint and affidavits of
witnesses for them to file their counter- affidavits in accordance to [sic]
law.
As of this date, only accused Francisco Boy Yambao filed his counter-
affidavit and all the others waived the filing of the same.
A close evaluation of the evidence submitted by the accused Francisco
Yambao which the court finds it [sic] straightforward and more or less
credible and seems to be consistent with truth, human nature and [the]
natural course of things and lack of motives [sic], the evidence of
guilt against him is rather weak [compared to] the others, which [is why]
the court recommends a cash bond
of P50,000.00 for his provisional liberty, and the courts previous order of
no bail for said accused is hereby reconsidered.
WHEREFORE, premises considered, the Clerk of Court is directed to
forward the entire records of the case to the Office of the Provincial
Prosecutor of Pampanga for further action, together with the bodies of
accused Francisco Yambao and Juan Magat to be remanded to the
provincial Jail of Pampanga. (underscoring supplied)
In a sworn statement, petitioner Peter Paul Dimatulac narrated that Mayor
Santiago Yabut, accompanied by a number of bodyguards, went to the
residence of PO3 Virgilio Dimatulac to talk about a problem between the
Mayor and Peter Pauls uncle, Jun Dimatulac. Virgilio warmly welcomed the
group and even prepared coffee for them. Servillano and Martin Yabut told
Virgilio to come down from his house and apologize to the Mayor, but
hardly had Virgilio descended when Peter Paul heard a gunshot. While
Peter Paul did not see who fired the shot, he was sure it was one of Mayor
Yabuts companions.Peter Paul opined that his father was killed because
the latter spoke to the people of Minalin, Pampanga, against the Mayor.
Peter Paul added in a supplemental statement (Susog na Salaysay) that he
heard Mayor Yabut order Virgilio killed.
In his Sinumpaang Salaysay, Police Officer Leopoldo Soriano of the
Masantol Municipal Police Station in Masantol, Pampanga, declared that
on 3 November 1995, between 3:30 and 4:00 p.m., while he was at the
police station, three men approached him and asked for directions to the
house of Mayor Epifanio Lacap. Soriano recognized one of the men as

SPO1 Labet Malabanan of Minalin, Pampanga.The group left after Soriano
gave them directions, but one of the three returned to ask whether PO3
Virgilio Dimatulac was on duty, to which Soriano replied that Dimatulac
was at home. The group left on board a military truck headed for San
Nicolas, Masantol, Pampanga. Later that day, SPO2 Michael Viray received
a telephone call at the police station reporting that someone had shot
Virgilio Dimatulac.
Thereafter, Pampanga Assistant Provincial Prosecutor Sylvia Q. Alfonso-
Flores conducted a reinvestigation. However, it is not clear from the record
whether she conducted the same motu proprio or upon motion of private
respondents Santiago Yabut, Servillano Yabut and Martin Yabut (hereafter
YABUTs). All of the accused who had not submitted their counter-affidavits
before the MCTC, except accused
Danny and Koyang/Arding, submitted their counter-affidavits to
Assistant Provincial Prosecutor Alfonso Flores.
In her Resolution dated 29 January 1996, Assistant Provincial Prosecutor
Alfonso-Flores found that the YABUTs and the assailant Danny, to the
exclusion of the other accused, were in conspiracy with one another, but
that the offense committed was only homicide, not murder. In support of
such finding, Alfonso-Flores reasoned thus:
The complainant in this case charges the crime of Murder qualified by
treachery. It must be noted that to constitute treachery, two conditions
must be present, to wit, 1) the employment of the [sic] means of execution
were give [sic] the person attacked no opportunity to defend
himself or to retaliate; and 2) the means of execution were deliberately or
consciously adopted xxx.
In the instant case, the presence of the first requisite was clearly
established by the evidence, such that the attack upon the victim while
descending the stairs was so sudden and unexpected as to render him no
opportunity to defend himself or to retaliate. However, the circumstances,
as portrayed by witness Peter Paul Dimatulac, negate the presence of the
second
requisite. According to the said witness, the victim was already descending
when Mayor Yabut commanded the assailant to shoot him, and
immediately thereafter, he heard the gunshot. This would therefore show
that the assailant did not consciously adopt the position of the victim at
the time he fired the fatal shot. The command of Mayor Yabut to shoot
came so sudden as to afford no opportunity for the assailant to choose the
means or method of attack. The act of Mayor Yabut in giving the command
to shoot further bolster[s] the fact that the conspirator did not concert the
means and method of attack nor the manner thereof. Otherwise there
would
have been no necessity for him to give the order to the assailant. The
method and manner of attack was adopted by the assailant at the spur of
the moment and the vulnerable position of the victim was not deliberately
and consciously adopted. Treachery therefore could not be appreciated
and the crime reasonably believe[d] to have been committed is Homicide
as no circumstance would qualify the killing to murder.
Alfonso-Flores then ruled:
WHEREFORE, in view of the foregoing, it is hereby recommended that:
CRIMINAL PROCEDURE RULE 110
1. An information be filed with the proper court charging Santiago,
Servillano and Martin all surnamed Yabut, and one John Doe alias Danny as
conspirators in the crime of Homicide;
2. The case be dismissed against accused Evelino David, Justino Mandap
a.k.a. Casti David, Francisco Yambao, Juan Magat, Arturo Naguit, Bladimir
Dimatulac, Fortunato Mallari, Aniano Magnaye, Gilberto Malabanan, Jesus
dela Cruz and Joselito Miranda.
Bail of P20,000.00 for each of the accused is likewise recommended.
The Resolution discloses that Alfonso-Flores conducted a hearing on 11
January 1996 and clarificatory questions were propounded only to Peter
Paul Dimatulac.
On 23 February 1996, before the Information for homicide was filed,
complainants, herein petitioners, appealed the resolution of
Alfonso-Flores to the Secretary of the Department of Justice
(DOJ).They alleged in their appeal that:
1. THE ASSISTANT PROVINCIAL PROSECUTOR NOT ONLY ERRED IN
RULING THAT THERE WAS NO TREACHERY TO QUALIFY THE CRIME TO
MURDER, BUT LIKEWISE ERRED IN NOT APPRECIATING THE PRESENCE OF
OTHER QUALIFYING CIRCUMSTANCES, TO WIT:
A. THAT THE ACCUSED COMMITTED THE CRIME WITH THE AID OF ARMED
MEN AND WITH THE USE OF A PERSON TO INSURE OR AFFORD IMPUNITY;
B. THAT THE CRIME WAS COMMITTED IN CONSIDERATION
OF A PRICE, REWARD, OR PROMISE;
C. THAT THE CRIME WAS COMMITTED ON THE OCCASION OF A
DESTRUCTIVE CYCLONE, WHEN THE SUPER-TYPHOON ROSING WAS
RAGING ON NOVEMBER 3, 1995;
D. THAT THE CRIME WAS COMMITTED WITH EVIDENT PREMEDITATION;
2. THAT THE HONORABLE INVESTIGATING ASSISTANT PROSECUTOR
ERRED IN DISMISSING THE COMPLAINT AGAINST FORTUNATO MALLARI
AND FRANCISCO YAMBAO BY RULING OUT CONSPIRACY WITH THE
YABUT BROTHERS AS AGAINST FORTUNATO MALLARI AND NOT CHARGING
FRANCISCO YAMBAO AS AN ACCESSORY TO MURDER.
To refute Alfonso-Flores finding that the means of execution were not
deliberately adopted, petitioners asserted that the meeting of the accused
and the victim was not accidental as the former purposely searched for the
victim at the height of a typhoon, while accused Mayor Santiago Yabut
even remarked to his co-accused
Danny, Dikitan mo lang, alam mo na kung ano ang gagawin mo, bahala ka
na (Just stay close to him, you know what to do). Thus, Danny positioned
himself near the stairs to goad the victim to come out of his house, while
Fortunato Mallari represented to the deceased that the latter was being
invited by a certain General Ventura. When the victim declined the
invitation by claiming he was sick, accused Servillano Yabut persuaded the
victim to come down by saying, [T]o settle this matter, just apologize to
the Mayor who is in the truck. In view of that enticement, the victim came
down, while Danny waited in ambush. To emphasize the accuseds resolve
to kill the deceased, petitioners further narrated that when the deceased
ran away after the first shot, the gunman still pursued him, while Mayor
Santiago Yabut, who was a doctor, kept away at a safe distance and told
everyone in the truck, Tama na, bilisan ninyo, (Thats enough, move
quickly) without giving medical assistance to the deceased and without
exerting any effort to arrest the gunman.
The Office of the Provincial Prosecutor of Pampanga was furnished with a
copy of the Appeal.
On 26 February 1996, Provincial Prosecutor Jesus Y. Manarang issued a
Resolution ordering the release of accused Evelino David, Justino Mandap,
Juan Magat and Arturo Naguit (who were then detained) in view of the
aforementioned resolution of Alfonso-Flores, which, as stated in the order,
the Provincial Prosecutor approved on February 7, 1996.
On 28 February 1996, an Information for Homicide, signed by Assistant
Provincial Prosecutor Flores and Provincial Prosecutor Jesus Y. Manarang,
was filed before Branch 55 of the Regional Trial Court (RTC) in Macabebe,
Pampanga, against the YABUTs and John Doe alias Danny Manalili and
docketed as Criminal Case No. 96-
1667(M). The accusatory portion of the information read as follows:
That on or about the 3rd day of November, 1995, in the municipality of
Masantol, province of Pampanga,
Philippines and within the jurisdiction of this Honorable Court, the above-
named accused, conspiring and confederating together and mutually
helping one another, with deliberate intent to take the life of PO3
Virgilio A. Dimatulac, did then and there wilfully, unlawfully and feloniously
shoot the said PO3 Virgilio A. Dimatulac on his abdomen with the use of a
handgun, thereby inflicting upon him a gunshot wound which cause[d] the
death of the said victim.
All contrary to law.
The Information, although dated 29 January 1996 was signed by Provincial
Prosecutor Manarang on 2/27/96, i.e., a day before its filing in court.
On 28 February 1996, Judge Reynaldo V. Roura, presiding judge of Branch
55, approved the cash bonds of the YABUTs, each in the amount of
P20,000.00, and recalled the warrants for their arrest.
On 29 February 1996, Atty. Amado Valdez, who had entered his
appearance as private prosecutor, filed two (2) motions with the trial
court: (1) a Motion to Issue Hold Departure Order Against All Accuseds
[sic]; and an (2) Urgent Motion to Defer Proceedings,
copies of which were furnished the Office of the Provincial
Prosecutor of Pampanga. The second motion was grounded on the
pendency of the appeal before the Secretary of Justice and a copy thereof
was attached to the motion. Judge Roura set the motions for hearing on 8
March 1996.
On 7 March 1996, Judge Roura ordered the arrest of the remaining
accused, Danny Manalili.

On 8 March 1996, the YABUTs filed their opposition to the Motion to
Issue Hold Departure Order and the Motion to Defer Proceedings. The
YABUTs asserted that, as to the first, by posting bail
bonds, they submitted to the jurisdiction of the trial court and were bound
by the condition therein to surrender themselves whenever so required by
the court, and to seek permission from the court should any one of them
desire to travel; and, as to the second, the pendency of the appeal before
the Secretary of Justice was not a ground to defer arraignment; moreover,
the trial court had to consider their right to a speedy trial, especially since
there was no definite date for the resolution of the appeal. Then invoking
this Courts rulings in Crespo v. Mogul and Balgos v. Sandiganbayan, the
YABUTs further asserted that petitioners should have filed a motion to
defer the filing of the information for homicide with the Office of the
Provincial Prosecutor, or sought, from the Secretary of Justice, an order
directing the Provincial Prosecutor to defer the filing of the information in
court.
In a Reply to the opposition, the private prosecution, citing Section 20
of Rule 114 of the Rules of Court, insisted on the need for a hold-departure
order against the accused; argued that the accuseds right to a speedy trial
would not be impaired because the appeal to the Secretary of Justice was
filed pursuant to Department Order No.
223 of the DOJ and there was clear and convincing proof that the killing
was committed with treachery and other qualifying circumstances not
absorbed in treachery; and contended that the accuseds invocation of the
right to a speedy trial was inconsistent with their filing of various dilatory
motions during the preliminary investigation. The YABUTs filed a Rejoinder
to this Opposition.
On 26 March 1996, Judge Roura deferred resolution of the Motion to
Issue a Hold Departure Order until such time that all the accused who are
out on bail are arraigned, but denied the Motion to Defer Proceedings as
he found no compelling reason therefor, considering that although the
appeal was filed on 23 February 1996, the private prosecution has not
shown any indication that [the] appeal was given due course by the
Secretary of Justice. Judge Roura also set the arraignment of the accused
on 12 April 1996.
It would appear that the private prosecution moved to reconsider the
order denying the Motion to Defer Proceedings since, on 12 April 1996,
Judge Roura issued an Order giving the private prosecutor ten (10) days
from today within which to file a petition for certiorari questioning the
order of the Court denying his motion for reconsideration of the order of
March 26, 1996. Arraignment was then reset to 3 May 1996.
On 19 April 1996, petitioners filed a motion to inhibit Judge Roura from
hearing Criminal Case No. 96-1667(M) on the ground that he: (a) hastily set
the case for arraignment while the formers appeal in the DOJ was still
pending evaluation; and (b) prejudged the matter, having remarked in
open court that there was nothing in the records of the case that would
qualify the case into Murder. At the same time, petitioners filed a petition
for prohibition with the Court of Appeals docketed therein as CA-G.R. SP
No. 40393, to enjoin Judge Roura from proceeding with the arraignment in
Criminal Case No. 96-
1667(M).
CRIMINAL PROCEDURE RULE 110
On 24 April 1996, Public Prosecutor Olimpio R. Datu filed a Manifestation
and Comment with the trial court wherein he opposed the motion to
inhibit Judge Roura; manifested that there is nothing in the record which
shows that the subject killing is qualified into murder; and announced that
he will no longer allow the private prosecutor to participate or handle the
prosecution of [the] case in view of the latters petition to inhibit Judge
Roura.
On 29 April 1996, Judge Roura voluntarily inhibited himself and ordered
the case transferred to Branch 54 of the RTC, presided over by herein
public respondent Judge Sesinando Villon.
On 30 April 1996, the Branch Clerk of Court of Branch 54 of the
RTC received the record of Criminal Case No. 96-1667(M).
On 30 April 1996, petitioners filed with the trial court a Manifestation
submitting, in connection with their Motion to Defer Proceedings and
Motion to Inhibit Judge Roura, documentary
evidence to support their contention that the offense committed was
murder, not homicide. The documents which they claimed were not earlier
submitted by the public prosecution were the following:
a. Counter-Affidavit of SPO1 Gilberto D. Malabanan.
b. Sinumpaang Salaysay of Vladimir Yumul y Dimatulac. c. Counter-Affidavit
of Francisco I. Yambao.
d. Counter-Affidavit of SPO2 Fortunato Mallari. e. Sinumpaang Salaysay of
Aniano Magnaye.
f. Sinumpaang Salaysay of Leopoldo Soriano.
g. Transcript of Stenographic Notes of the Preliminary Investigation of
Criminal Case No. 95-360, containing the testimony of:
a. Peter Paul Dimatulac b. Vladimir D. Yumul
c. SPO1 Gilberto Malabanan d. PO3 Alfonso Canilao
h. Investigation Report- dated November 4, 1995. i. Dying declaration of
Virgilio Dimatulac.
j. Sketch
k. Unscaled Sketch
Likewise on 30 April 1996, the Court of Appeals promulgated, in CA-G.R. SP
No. 40393, a Resolution directing respondent therein to file his comment
to the petition within ten days from notice and to show cause within the
same period why no writ of preliminary injunction should be issued as
prayed for in the petition. However, the Court of Appeals deferred action
on the prayer for a temporary restraining order until after the required
comment [was] submitted.
On 3 May 1996, petitioners filed an Ex-Parte Manifestation with the RTC,
furnishing the trial court with a copy of the aforementioned resolution of
the Court of Appeals and drawing the attention of the trial court to the
rulings of this Court in Valdez vs. Aquilisan, (133
SCRA 150), Galman vs. Sandiganbayan, and Eternal Gardens
Memorial Park Corp. vs. Court of Appeals as well as the decision in Paul G.
Roberts vs. The Court of Appeals.
On 3 May 1996, Judge Villon issued an order resetting arraignment of the
accused to 20 May 1996. On the latter date, the YABUTs each entered a
plea of not guilty.
Alarmed by the conduct of arraignment, petitioners filed, on 27
May 1996, an Urgent Motion to Set Aside Arraignment, citing the
resolution of 30 April 996 of the Court of Appeals in CA-G.R. SP No.
40393 which, inter alia, deferred resolution on the application for a
temporary restraining order until after the required comment is submitted
by the respondent; stressed that the filing of the information for the lesser
offense of homicide was clearly unjust and contrary to law in view of the
unquestionable attendance of circumstances qualifying the killing to
murder; and asserted that a number of Supreme Court decisions
supported suspension of the proceedings in view of the pendency of their
appeal before the DOJ.
On 31 May 1997, Judge Villon issued an Order directing the accused to file
their comment on the Urgent Motion to Set Aside Arraignment within
fifteen days from notice.
In a letter addressed to the Provincial Prosecutor dated 7 June
1996, public respondent Secretary Teofisto Guingona of the DOJ resolved
the appeal in favor of petitioners. Secretary Guingona ruled that treachery
was present and directed the Provincial Prosecutor of San Fernando,
Pampanga to amend the information filed against the accused from
homicide to murder, and to include Fortunato Mallari as accused in the
amended information. The findings and conclusions of Secretary Guingona
read as follows:
Contrary to your findings, we find that there is treachery that attended the
killing of PO3 Dimatulac. Undisputedly, the victim was suddenly shot while
he was descending the stairs. The attack was unexpected as the victim was
unarmed and on his way to make peace with Mayor
Yabut, he was unsuspecting so to speak. From the circumstances
surrounding his killing, PO3 Dimatulac was indeed deprived of an
opportunity to defend himself or to retaliate.
Corollarily, we are also convinced that such mode of attack was
consciously and deliberately adopted by the respondents to ensure the
accomplishment of their criminal objective. The admission of respondent
Malabanan is replete with details on how the principal respondent, Mayor
Yabut, in conspiracy with the assailant and others, had consciously and
deliberately adopted means to ensure the execution of the crime.
According to him, while they were on their way to the victims house,
Mayor Yabut already instructed Danny, the assailant, that, Dikitan mo lang,
alam no na king ano ang gagawin mo, bahala ka na. This explains why
Danny positioned himself near the stairs of the victims house armed with a
handgun, such positioning was precisely adopted as a means to ensure the
accomplishment of their evil design and Mayor Yabut ordered nobody else
but Danny to shoot the victim while descending the stairs as his position
was very strategic to ensure the killing of the victim.
As has been repeatedly held, to constitute treachery, two conditions must
be present, to wit: (1) employment of means of execution that gives the
person [attacked] no opportunity to defend himself or retaliate; and (2)
the means of execution were deliberately or consciously adopted (People
vs. Talaver, 230 SCRA 281 ). In the case at bar, these two (2) requisites are
present as established from the foregoing discussion. Hence, there being a
qualifying circumstance of treachery, the crime committed herein is
murder, not homicide (People vs. Gapasin, 231 SCRA 728 ).

Anent the alleged participation of respondents Fortunato Mallari and
Francisco Yambao, we find sufficient evidence against Mallari as part of the
conspiracy but not against Yambao. As can be gleaned from the sworn-
statement of Yambao, which appears to be credible, Mallari tried also
to persuade the victim to go with them, using as a reason
that he (victim) was being invited by General Ventura. He was also seen
trying to fix the gun which was used in killing the victim. These actuations
are inconsistent with the claim that his presence at the crime scene was
merely passive.
On the other hand, we find credible the version and explanation of
Yambao. Indeed, under the obtaining circumstances, Yambao had no other
option but to accede to the request of Mayor Yabut to provide
transportation
to the assailant. There being an actual danger to his life
then, and having acted under the impulse of an uncontrollable fear, reason
dictates that he should be freed from criminal liability.
The YABUTs moved to reconsider the resolution, citing Section 4 of
Administrative/Administration Order No. 223 of the DOJ.
In an Ex-Parte Manifestation dated 21 June 1996, petitioners called the
trial courts attention to the resolution of the Secretary of Justice, a copy of
which was attached thereto. Later, in a Manifestation and Motion dated 1
July 1996, petitioners asked the trial court to grant their motion to set
aside arraignment. Attached thereto was a copy of the Manifestation and
Motion of the Solicitor General dated 18 June 1996 filed with the Court of
Appeals in CA-G.R. SP No. 40393 wherein the Solicitor General joined cause
with petitioners and prayed that in the better interest of justice, [the]
Petition for Prohibition be GRANTED and a writ of prohibition be ISSUED
forthwith. In support of said prayer, the Solicitor General argued:
2. There is merit to the cause of petitioners. If the Secretary of Justice
would find their Appeal meritorious, the Provincial Prosecutor would be
directed to upgrade the Information to Murder and extreme prejudice if
not gross injustice would thereby have been avoided.
3 Consequently, the undersigned counsel interpose no objection to the
issuance of a writ of prohibition enjoining respondent Judge from holding
further proceedings in Criminal Case No. 96-1667-M, particularly in
holding the arraignment of the accused, pending resolution of the Appeal
with the Secretary of Justice.
The YABUTs opposed petitioners Manifestation and Motion dated 1
July 1996 because they had already been arraigned and, therefore, would
be placed in double jeopardy; and that the public prosecutor -
- not the private prosecutor -- had control of the prosecution of the case.
In his letter dated 1 July 1996 addressed to the Provincial Prosecutor
of Pampanga, the Secretary of Justice set aside his order to amend the
information from homicide to murder considering that the appeal was
rendered moot and academic by the arraignment of the accused for
homicide and their having entered their pleas of not guilty. The Secretary
stated:
Considering that Santiago Yabut, Servillano Yabut and Martin Yabut had
already been arraigned on May 20,
CRIMINAL PROCEDURE RULE 110
1996 and had pleaded not guilty to the charge of homicide, as shown by a
copy of the court order dated May 20, 1996, the petition for review insofar
as the respondents-Yabut are concerned has been rendered moot and
academic.
However, the Secretary reiterated that Fortunato Mallari should be
included in the information for homicide.
On 30 July 1996, Public Prosecutor Jaime Bustos filed a Motion for Leave
to Amend Information and to Admit Amended Information. The
Amended Information merely impleaded Fortunato Mallari as one of the
accused.
In his Order of 1 August 1996, Judge Villon denied petitioners motion to
set aside arraignment, citing Section 4, DOJ Department Order No. 223,
and the letter of the Secretary of Justice of 1 July
1996. Petitioners forthwith moved for reconsideration of the order,
arguing that the Motion to Defer the Proceedings filed by petitioners was
meritorious and did not violate the accuseds right to speedy trial; and that
the DOJ had ruled that the proper offense to be charged was murder and
did not reverse such finding. Petitioners also cited the Solicitor Generals
stand in CA-G.R. SP No. 40393 that holding accuseds arraignment in
abeyance was proper under the circumstances. Finally, petitioners
contended that in proceeding with the arraignment despite knowledge of a
petition for prohibition pending before the Court of Appeals, the trial court
violated Section
3(d), Rule 71 of the Rules of Court on indirect contempt. The YABUTs
opposed the motion on the ground that it raised no argument which had
not yet been resolved.
On 3 September 1996, petitioners filed a Motion to Defer Arraignment of
Accused Fortunato Mallari, which the trial court granted in view of
petitioners motion for reconsideration of the courts order denying
petitioners motion to set aside private respondents arraignment. As
expected, Mallari moved to reconsider the trial courts order and clamored
for consistency in the trial courts rulings.
In an order dated 15 October 1996, Judge Villon denied
reconsideration of the order denying petitioners motion to set aside
arraignment, citing the YABUTs right to a speedy trial and explaining
that the prosecution of an offense should be under the control of the
public prosecutor, whereas petitioners did not obtain the conformity of
the prosecutor before they filed various motions to defer
proceedings.Considering said order, Judge Villon deemed accused Mallaris
motion for reconsideration moot and academic.
On 16 October 1996, the Court of Appeals promulgated its decision in
CA-G.R. SP No. 40393 dismissing the petition therein for having become
moot and academic in view of Judge Rouras voluntary inhibition, the
arraignment of the YABUTs and the dismissal, by the Secretary of Justice,
of petitioners appeal as it had been mooted by said arraignment.
Judge Villon was later detailed to Branch 24 of the Regional Trial Court of
Manila, and Judge Roura was ordered by the Supreme Court to preside
over cases pending in Branch 54 of the Regional Trial Court of Macabebe,
Pampanga, which was previously presided over by Judge Villon. Judge
Roura informed the Office of the Court Administrator and this Court
that he had already inhibited himself from hearing Criminal Case No. 96-
1667(M).
On 28 December 1996, petitioners filed the instant Petition for
Certiorari/Prohibition and Mandamus. They urge this Court to reverse the
order of respondent Judge denying their Motion to Set Aside Arraignment;
set aside arraignment of private respondents; order that no further action
be taken by any court in Criminal Case No. 96-1667(M) until this petition is
resolved; and order respondents Secretary of Justice and the prosecutors
concerned to amend the information from homicide to murder.
Petitioners insist that the killing of PO3 Virgilio Dimatulac was attended by
treachery since private respondents tricked the victim into coming out of
his house and then shot him while he was going down the stairs. There
was, petitioners claim, an orchestrated effort on the part of [private
respondents] to manipulate the rules on administrative appeals with the
end in view of evading prosecution
for the [non-bailable] offense of murder, as shown by the following events
or circumstances:
(1) Assistant Provincial Prosecutor Alfonso-Flores downgraded the nature
of the crime committed to homicide, a bailable offense, on strength of a
motion for reinvestigation filed by the YABUTs who had not yet been
arrested.
(2) Respondent Mayor and his companions returned to Minalin after
the killing and went into hiding for four (4) months until the offense
charged was downgraded.
(3) The information for homicide was nevertheless filed despite notice to
the Office of the Provincial Prosecutor of the appeal filed with the
Secretary of Justice and request to defer any action on the case.
(4) The Office of the Public Prosecutor of Pampanga disallowed the
private prosecutor from further participating in the case.
(5) Judge Roura denied the motion to defer proceedings and declared in
open court that there was no prima facie case for murder, notwithstanding
the pendency of petitioners appeal with respondent Secretary of Justice.
(6) Even before receipt by petitioners of Judge Rouras order inhibiting
himself and the order regarding the transfer of the case to Branch 54,
public respondent Judge Villon set the case for arraignment and, without
notice to petitioners, forthwith arraigned the accused on the information
for homicide on 20 May 1996, despite the pendency of the petition for
prohibition before the Court of Appeals and of the appeal before the DOJ.
(7) The Pampanga Provincial Prosecutors Office did not object to the
arraignment nor take any action to prevent
further proceedings on the case despite knowledge of the pendency of the
appeal.
(8) The Provincial Prosecutor did not comply with the resolution of 7
June 1996 of the Secretary of Justice directing the amendment of the
information to charge the crime of murder.

Petitioners argue that in light of Roberts, Jr. v. Court of Appeals,
respondent Judge acted in excess of his jurisdiction in proceeding with
private respondents' arraignment for homicide and denying petitioners'
motion to set aside arraignment. Moreover, although respondent Judge
Villon was not the respondent in CA-G.R. SP No. 40393, he should have
deferred the proceedings just the same as the very issue in said case was
whether or not the RTC could proceed with the arraignment despite the
pending review of the case by respondent Secretary of Justice. Further,
Judge Villon unjustly invoked private respondents right to a speedy trial,
after a lapse of barely three (3) months from the filing of the information
on 23
February 1996; overlooked that private respondents were estopped from
invoking said right as they went into hiding after the killing, only to
resurface when the charge was reduced to homicide; and failed to detect
the Provincial Prosecutor's bias in favor of private respondents. Judge
Villon should have been more circumspect as he knew that by proceeding
with the arraignment, the appeal with the DOJ would be rendered
technically nugatory.
Finally, petitioners submit that the DOJ rule prohibiting appeals from
resolutions of prosecutors to the Secretary of Justice once the accused had
already been arraigned applies only to instances where the appellants are
the accused, since by submitting to arraignment, they voluntarily abandon
their appeal.
In their comment, private respondents contend that no sufficient legal
justification exists to set aside private respondents' arraignment, it having
already been reset twice from 12 April 1996 to
3 May 1996, due to petitioners pending appeal with the DOJ; and from 3
May 1996 to 20 May 1996, due to the transfer of this case to Branch 54.
Moreover, as of the latter date, the DOJ had not yet resolved petitioners
appeal and the DOJ did not request that arraignment be held in abeyance,
despite the fact that petitioners appeal had been filed as early as 23
February 1996, at least 86 days prior to private respondents
arraignment. They point out that petitioners did not move to reconsider
the RTC's 26 March 1996 denial of the Motion to Defer, opting instead for
Judge Rouras recusal and recourse to the Court of Appeals, and as no
restraining order was issued by the Court of Appeals, it was but proper for
respondent Judge to proceed with the arraignment of private respondents,
to which the public and private prosecutors did not object.
Private respondents further argue that the decision of respondent
Secretary, involving as it did the exercise of discretionary powers, is not
subject to judicial review. Under the principle of separation of powers,
petitioners' recourse should have been to the President. While as regards
petitioners plea that the Secretary be compelled to amend the information
from homicide to murder, private respondents submit that mandamus
does not lie, as the determination as to what offense was committed is a
prerogative of the DOJ, subject only to the control of the President.
As regards DOJ Department Order No. 223, private respondents theorize
that appeal by complainants is allowed only if the complaint is dismissed
by the prosecutor and not when there is a finding of probable cause, in
which case, only the accused can appeal. Hence, petitioners appeal was
improper.
CRIMINAL PROCEDURE RULE 110
Finally, private respondents stress the fact that petitioners never
appealed the withdrawal by the public prosecutor of the private
prosecutor's authority to handle the case.
In its comment for the public respondents, the Office of the
Solicitor General (OSG) prays that the petition be denied because: (a)
in accordance with Section 4 of DOJ Order No. 223, upon arraignment of
the accused, the appeal to the Secretary of Justice shall be dismissed motu
proprio; (b) the filing of the information for homicide was in compliance
with the directive under Section 4(2), D.O. No.
223, i.e., an appeal or motion for reinvestigation from a resolution finding
probable cause shall not hold the filing of the information in court; (c) the
trial court even accommodated petitioners by initially deferring
arraignment pending resolution by the Court of Appeals of the petition for
prohibition, and since said Court did not issue any restraining order,
arraignment was properly had; and (d) reliance on Roberts is misplaced, as
there, accused Roberts and others had not been arraigned and respondent
Judge had ordered the indefinite postponement of the arraignment
pending resolution of their petitions before the Court of Appeals and the
Supreme Court.
We now consider the issues enumerated at the outset of this
ponencia.
Plainly, the proceedings below were replete with procedural irregularities
which lead us to conclude that something had gone awry in the Office of
the Provincial Prosecutor of Pampanga resulting in manifest advantage to
the accused, more particularly the YABUTs, and grave prejudice to the
State and to private complainants, herein petitioners.
First, warrants for the arrest of the YABUTs were issued by the MCTC,
with no bail recommended for their temporary liberty. However,
for one reason or another undisclosed in the record, the YABUTs
were not arrested; neither did they surrender. Hence, they were
never brought into the custody of the law. Yet, Asst. Provincial Fiscal
Alfonso-Reyes, either motu proprio or upon motion of the YABUTs,
conducted a reinvestigation. Since said accused were at large, Alfonso-
Reyes should not have done so. While it may be true that under the second
paragraph of Section 5, Rule 112 of the Rules of Court, the provincial
prosecutor may disagree with the findings of the judge who conducted the
preliminary investigation, as
here, this difference of opinion must be on the basis of the review of the
record and evidence transmitted by the judge. Were that all she did, as she
had no other option under the circumstances, she was without any other
choice but to sustain the MCTC since the YABUTs and all other accused,
except Francisco Yambao, waived the filing of their counter-affidavits.
Then, further stretching her magnanimity in favor of the accused, Alfonso-
Reyes allowed the YABUTs to submit their counter-affidavits without first
demanding that they surrender because of the standing warrants of arrest
against them. In short, Alfonso-Reyes allowed the YABUTs to make a
mockery of the law in order that they gain their provisional liberty pending
trial and be charged with the lesser offense of homicide.
Second, Alfonso-Reyes recommended a bond of only P20,000.00 for
the YABUTs and co-accused Danny, despite the fact that they were charged
with homicide and they were, at the time, fugitives from justice for having
avoided service of the warrant of arrest issued by the MCTC and having
failed to voluntarily surrender.
Third, Alfonso-Reyes was fully aware of the private prosecutions appeal to
the DOJ from her resolution. She could not have been ignorant of the fact
that the appeal vigorously assailed her finding that there was no qualifying
circumstance attending the killing, and that the private prosecution had
convincing arguments to support the appeal. The subsequent resolution of
the Secretary of Justice confirmed the correctness of the private
prosecutions stand and exposed the blatant errors of Alfonso-Reyes.
Fourth, despite the pendency of the appeal, Alfonso-Reyes filed the
Information for homicide on 28 February 1996. It is interesting to note that
while the information was dated 29 January 1996, it was approved by the
Provincial Prosecutor only on 27 February 1996. This simply means that the
Office of the Prosecutor was not, initially, in a hurry to file the Information.
No undue prejudice could have been caused to the YABUTs if it were filed
even later for the YABUTs were
still at large; in fact, they filed their bonds of P20,000.00 each only after
the filing of the Information. If Alfonso-Flores was extremely generous to
the YABUTs, no compelling reason existed why she could not afford the
offended parties the same courtesy by at least waiting for instructions
from the Secretary of Justice in view of the appeal, if she were
unwilling to voluntarily ask the latter for instructions. Clearly,
under the circumstances, the latter course of action would have been the
most prudent thing to do.
Fifth, as if to show further bias in favor of the YABUTs, the Office of the
Provincial Prosecutor of Pampanga did not even bother to motu
proprio inform the trial court that the private prosecution had appealed
from the resolution of Alfonso-Flores and had sought, with all the vigour it
could muster, the filing of an information for murder, as found by the
MCTC and established by the evidence before it.
Unsatisfied with what had been done so far to accommodate the YABUTs,
the Office of the Provincial Prosecutor did not even have the decency to
agree to defer arraignment despite its continuing knowledge of the
pendency of the appeal. This amounted to defiance of the DOJs power of
control and supervision over prosecutors, a matter which we shall
later elaborate on. Moreover, in an unprecedented move, the trial
prosecutor, Olimpio Datu, had the temerity, if not arrogance, to announce
that he will no longer allow the private prosecutor to participate or handle
the prosecution of [the] case simply because the private prosecution had
asked for the inhibition of Judge Roura. Said prosecutor forgot that
since the offended parties here had not waived the civil action nor
expressly reserved their right to institute it separately from the criminal
action, then they had the right to intervene in the criminal case pursuant
to Section 16 of Rule 110 of the Rules of Court.
It is undebatable that petitioners had the right to appeal to the DOJ from
the resolution of Alfonso-Flores. The last paragraph of Section 4 of Rule
112 of the Rules of Court provides:
If upon petition by a proper party, the Secretary of Justice reverses the
resolution of the provincial or city fiscal or chief state prosecutor, he shall
direct the fiscal concerned to file the corresponding information without

conducting another preliminary investigation or to dismiss or move for the
dismissal of the complaint or information.
It is clear from the above, that the proper party referred to therein could
be either the offended party or the accused.
More importantly, an appeal to the DOJ is an invocation of the Secretarys
power of control over prosecutors. Thus, in Ledesma v. Court of Appeals,
we emphatically held:
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.
Section 39, Chapter 8, Book IV in relation to Section[s] 5,
8, and 9, Chapter 2, Title III of the Code gives the secretary of justice
supervision and control over the Office of the Chief Prosecutor and the
Provincial and City
Prosecution Offices. The scope of his power of supervision and control is
delineated in Section 38, paragraph 1, Chapter 7, Book IV of the Code:
(1) Supervision and Control. -- Supervision and control shall include
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; x x x x.
Supplementing the aforequoted provisions are Section 3 of R.A. 3783 and
Section 37 of Act 4007, which read:
Section 3. x x x x
The Chief State Prosecutor, the Assistant Chief State Prosecutors, the
Senior State Prosecutors, and the State Prosecutors shall x x x perform
such other duties as may be assigned to them
by the Secretary of Justice in the interest of
public service. xxx xxx xxx
Section 37. The provisions of the existing law to the contrary
notwithstanding, whenever a specific power, authority, duty, function, or
activity is entrusted to a chief of bureau, office, division or service, the
same shall be understood as also conferred upon the proper Department
Head who shall have authority to act directly in pursuance thereof, or to
review, modify, or revoke any decision or action of said chief of bureau,
office, division or service.
Supervision and control of a department head over his subordinates have
been defined in administrative law as follows:
In administrative law, supervision means overseeing or the power or
authority of an officer to see that subordinate officers perform their
duties. If the latter fail or neglect to fulfill them, the former may take such
action or step as prescribed by law to make them perform such duties.
Control, on the other hand, means
CRIMINAL PROCEDURE RULE 110
the power of an officer to alter or modify or nullify or set aside what a
subordinate officer had done in the performance of his duties and to
substitute the judgment of the former for that of the latter.
Review as an act of supervision and control by the justice secretary over
the fiscals and 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 should 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.
DOJ Order No. 223 of 30 June 1993 recognizes the right of both the
offended parties and the accused to appeal from resolutions in preliminary
investigations or reinvestigations, as provided for in Section 1 and Section
4, respectively. Section 1 thereof provides, thus:
SECTION 1. What May Be Appealed. -- Only resolutions of the Chief State
Prosecutor/Regional State Prosecutor/Provincial or City Prosecutor
dismissing a criminal complaint may be the subject of an appeal to the
Secretary of Justice except as otherwise provided in Section 4 hereof.
While the section speaks of resolutions dismissing a criminal complaint,
petitioners herein were not barred from appealing from the resolution
holding that only homicide was committed, considering that their
complaint was for murder. By holding that only homicide was committed,
the Provincial Prosecutors Office of Pampanga effectively dismissed
the complaint for murder. Accordingly, petitioners could file an appeal
under said
Section 1. To rule otherwise would be to forever bar redress of a valid
grievance, especially where the investigating prosecutor, as in this case,
demonstrated what unquestionably appeared to be unmitigated bias in
favor of the accused. Section 1 is not to be literally applied in the sense
that appeals by the offended parties are allowed only in cases of dismissal
of the complaint, otherwise the last paragraph of Section 4, Rule 112,
Rules of Court would be meaningless.
We cannot accept the view of the Office of the Solicitor General and
private respondents that Section 4 of DOJ Department Order No.
223 is the controlling rule; hence, pursuant to the second paragraph
thereof, the appeal of petitioners did not hold the filing of the information.
As stated above, Section 4 applies even to appeals by the respondents or
accused. The provision reads:
SEC. 4. Non-appealable cases. Exceptions. - No appeal may be taken from a
resolution of the Chief State Prosecutor/Regional State
Prosecutor/Provincial or City Prosecutor finding probable cause except
upon a showing of manifest error or grave abuse of
discretion. Notwithstanding the showing of manifest error or grave abuse
of discretion, no appeal shall be entertained where the appellant had
already been arraigned. If the appellant is arraigned during the pendency
of the appeal, said appeal shall be
dismissed motu proprio by the Secretary of Justice.
An appeal/motion for reinvestigation from a resolution finding probable
cause, however, shall not hold the filing of the information in court.
(underscoring supplied)
The underlined portion indisputably shows that the section refers to
appeals by respondents or accused. So we held in Marcelo v. Court of
Appeals that nothing in the ruling in Crespo v. Mogul,reiterated in
Roberts v. Court of Appeals, forecloses the power
or authority of the Secretary of Justice to review resolutions of his
subordinates in criminal cases despite an information already having been
filed in court. The Secretary of Justice is only enjoined to refrain, as far as
practicable, from entertaining a petition for review or appeal from the
action of the prosecutor once a complaint or information is filed in court.
In any case, the grant of a motion to dismiss, which the prosecution may
file after the Secretary of Justice reverses an appealed resolution, is
subject to the discretion of the court. In Roberts we went further
by saying that Crespo could not have foreclosed said power or authority
of the Secretary of Justice without doing violence to, or repealing, the
last paragraph of Section 4, Rule 112 of the Rules of Court which is quoted
above.
Indubitably then, there was, on the part of the public prosecution,
indecent haste in the filing of the information for homicide, depriving the
State and the offended parties of due process.
As to the second issue, we likewise hold that Judge Roura acted with grave
abuse of discretion when, in his order of 26 March
1996, he deferred resolution on the motion for a hold departure order
until such time that all the accused who are out on bail are arraigned and
denied the motion to defer proceedings for the reason that the private
prosecution has not shown any indication that [the] appeal was given due
course by the Secretary of Justice. Neither rhyme nor reason or even logic,
supports the ground for the deferment of the first motion. Precisely,
immediate action thereon was called for as the accused were out on bail
and, perforce, had all the opportunity to leave the country if they wanted
to. To hold that arraignment is a prerequisite to the issuance of a hold
departure order could obviously defeat the purpose of said order. As to
the second motion, Judge Roura was fully aware of the pendency of
petitioners appeal with the DOJ, which was filed as early as 23
February 1996. In fact, he must have taken that into consideration when
he set arraignment of the accused only on 12 April 1996, and
on that date, after denying petitioners motion to reconsider the denial of
the motion to defer proceedings, he further reset arraignment to 3 May
1996 and gave petitioners ten (10) days within which to file a petition for
certiorari to question his denial of the motion to defer and of the order
denying the reconsideration. In any event, the better part of wisdom
suggested that, at the very least, he should have asked petitioners as
regards the status of the appeal or warned them that if the DOJ would not
decide the appeal within a certain period, then arraignment would
proceed.
Petitioners did in fact file the petition with the Court of Appeals on 19 April
1996 and, at the same time, moved to inhibit Judge Roura. These twin
moves prompted Judge Roura to voluntarily inhibit himself from the case
on 29 April 1996 and to transfer the case to the branch presided by
public respondent Judge Villon. The latter received the record of the
case on 30 April 1996. From that time on, however, the offended parties
did not receive any better deal. Acting with deliberate dispatch, Judge
Villon issued an order on 3 May 1996 setting arraignment of the accused

on 20 May 1996. If Judge Villon only perused the record of the case with
due diligence, as should be done by anyone who has just taken over a new
case, he could not have helped but notice: (a) the motion to defer further
proceedings; (2) the order of Judge Roura giving petitioners ten days
within which to file a petition with the Court of Appeals; (3) the fact of the
filing of such petition in CA-G.R. SP No. 40393; (4) the resolution of the
Court of Appeals directing respondents to comment on the petition and
show cause why the application for a writ of preliminary injunction should
not be granted and deferring resolution of the application for a temporary
restraining order until after the required comment was filed, which
indicated a prima facie showing of merit; (5) the motion to inhibit Judge
Roura precisely because of his prejudgment that the crime committed was
merely homicide; (6) Judge Rouras subsequent inhibition; (7) various
pieces of documentary evidence submitted by petitioners on 30 April 1996
supporting a charge of murder, not
homicide; and (8) most importantly, the pending appeal with the DOJ.
All the foregoing demanded from any impartial mind, especially that of
Judge Villon, a cautious attitude as these were unmistakable indicia of the
probability of a miscarriage of justice should arraignment be precipitately
held. However, Judge Villon cursorily ignored all this. While it may be true
that he was not bound to await the DOJs resolution of the appeal, as he
had, procedurally speaking, complete control over the case and any
disposition thereof rested on his sound discretion, his judicial instinct
should have led him to peruse the documents submitted on 30 April
1996 and to initially determine, for his own enlightenment with serving the
ends of justice as the ultimate goal, if indeed murder was the offense
committed; or, he could have directed the private prosecutor to secure a
resolution on the appeal within a specified time. Given the totality of
circumstances, Judge Villon should have heeded our statement in
Marcelo that prudence, if not wisdom, or at least, respect for the authority
of the prosecution agency, dictated that he should have waited for the
resolution of the appeal then pending before the DOJ. All told, Judge Villon
should not have merely acquiesced to the findings of the public
prosecutor.
We do not then hesitate to rule that Judge Villon committed grave abuse
of discretion in rushing the arraignment of the YABUTs on the assailed
information for homicide. Again, the State and the offended parties were
deprived of due process.
Up to the level then of Judge Villon, two pillars of the criminal justice
system failed in this case to function in a manner consistent with the
principle of accountability inherent in the public trust character of a public
office. Judges Roura and Villon and prosecutors Alfonso-Flores and Datu
need be reminded that it is in the public interest that every crime should
be punished and judges and prosecutors play a crucial role in this regard
for theirs is the delicate
duty to see justice done, i.e., not to allow the guilty to escape nor the
innocent to suffer.
Prosecutors must never forget that, in the language of Suarez v. Platon,
they are the representatives not of an ordinary party to a controversy, but
of a sovereignty whose obligation to govern impartially is as compelling as
its obligation to govern at all; and whose interest, therefore, in a criminal
prosecution is not that it shall win every case but that justice be done. As
CRIMINAL PROCEDURE RULE 110
such, they are in a peculiar and every definite sense the servants of the
law, whose two-fold aim is that guilt shall not escape or innocence suffer.
Prosecutors are charged with the defense of the community aggrieved by a
crime, and are expected to prosecute the public action with such zeal and
vigor as if they were the ones personally aggrieved, but at all times
cautious that they refrain from improper methods designed to secure a
wrongful conviction. With them lies the duty to lay before the court the
pertinent facts at the judges disposal with strict attention to punctilios,
thereby clarifying contradictions and sealing all gaps in the evidence, with
a view to erasing all doubt from the courts mind as to the accuseds
innocence or guilt.
The judge, on the other hand, should always be imbued with a high sense
of duty and responsibility in the discharge of his obligation to promptly and
properly administer justice. He must view himself as a priest, for the
administration of justice is akin to a religious crusade. Thus, exerting
the same devotion as a priest in the performance of the most sacred
ceremonies of religious liturgy, the judge must render service with
impartiality commensurate with the public trust and confidence
reposed in him. Although the determination of a criminal case before a
judge lies within his exclusive jurisdiction and competence, his
discretion is not unfettered, but rather must be exercised within
reasonable confines. The judges action must not impair the substantial
rights of
the accused, nor the right of the State and offended party to due process
of law.
Indeed, for justice to prevail, the scales must balance; justice is not to be
dispensed for the accused alone. The interests of society and the offended
parties which have been wronged must be equally considered. Verily, a
verdict of conviction is not necessarily a denial of justice; and an acquittal
is not necessarily a triumph of justice, for, to the society offended and the
party wronged, it could also mean injustice. Justice then must be rendered
even-handedly to both the accused, on one hand, and the State and
offended party, on the other.
In this case, the abuse of discretion on the part of the public prosecution
and Judges Roura and Villon was gross, grave and palpable, denying the
State and the offended parties their day in court, or in a constitutional
sense, due process. As to said judges, such amounted to lack or excess of
jurisdiction, or that their court was ousted of the jurisdiction in respect
thereto, thereby nullifying as having been done without jurisdiction, the
denial of the motion to defer further hearings, the denial of the motion to
reconsider such denial, the arraignment of the YABUTs and their plea of
not guilty.
These lapses by both the judges and prosecutors concerned cannot be
taken lightly. We must remedy the situation before the onset of any
irreversible effects. We thus have no other recourse, for as Chief Justice
Claudio Teehankee pronounced in Galman v. Sandiganbayan:
The Supreme Court cannot permit such a sham trial and verdict and
travesty of justice to stand unrectified. The courts of the land under its
aegis are courts of
law and justice and equity. They would have no reason to exist if they were
allowed to be used as mere tools of injustice, deception and duplicity to
subvert and suppress the truth, instead of repositories of judicial power
whose
judges are sworn and committed to render impartial justice to all alike who
seek the enforcement or protection of a right or the prevention or redress
of a wrong, without fear or favor and removed from the pressures of
politics and prejudice.
We remind all members of the pillars of the criminal justice system that
theirs is not a mere ministerial task to process each accused in and out of
prison, but a noble duty to preserve our democratic society under a rule of
law.
Anent the third issue, it was certainly grave error for the DOJ to reconsider
its 7 June 1996 resolution, holding that murder was committed and
directing the Provincial Prosecutor to accordingly amend the information,
solely on the basis of the information that the YABUTs had already been
arraigned. In so doing, the DOJ relinquished its power of control and
supervision over the Provincial Prosecutor and the Assistant Provincial
Prosecutors of Pampanga; and meekly surrendered to the latters
inappropriate conduct or even hostile attitude, which amounted to neglect
of duty or conduct prejudicial to the best interest of the service, as well as
to the undue haste of Judge Roura and Villon in respect of the arraignment
of the YABUTs. The sins of omission or commission of said prosecutors and
judges resulted, in light of the finding of the DOJ that the crime committed
was murder, in unwarranted benefit to the YABUTs and gross prejudice to
the State and the offended parties. The DOJ should have courageously
exercised its power of control by taking bolder steps to rectify the shocking
mistakes so far committed and, in the final analysis, to prevent further
injustice and fully serve the ends of justice. The DOJ could have, even if
belatedly, joined cause with petitioners to set aside arraignment. Further,
in the exercise of its disciplinary powers over its personnel, the DOJ could
have directed the public prosecutors concerned to show cause why no
disciplinary action should be taken against them for neglect of duty or
conduct prejudicial to the best interest of the service in not, inter alia,
even
asking the trial court to defer arraignment in view of the pendency of the
appeal, informing the DOJ, from time to time, of the status of the case,
and, insofar as prosecutor Datu was concerned, in disallowing the private
prosecutor from further participating in the case.
Finally, the DOJ should have further inquired into the vicissitudes of the
case below to determine the regularity of arraignment, considering that
the appeal was received by the DOJ as early as 23 February 1996.
We then rule that the equally hasty motu proprio
reconsideration of the 7 June 1996 resolution of the DOJ was attended
with grave abuse of discretion.
It is settled that when the State is deprived of due process in a criminal
case by reason of grave abuse of discretion on the part of the trial court,
the acquittal of the accused or the dismissal of the case is void, hence
double jeopardy cannot be invoked by the accused. If this is so in
those cases, so must it be where the arraignment and plea of not guilty
are void, as in this case as above discussed.

WHEREFORE, the petition is GRANTED. The orders of Judge Reynaldo
Roura of 26 March 1996 denying the Motion to Defer Proceedings and of
12 April 1996 denying the motion to reconsider the denial of said Motion
to Defer Proceedings, and the orders of respondent Judge Sesinando
Villon of 3 May 1996 resetting the arraignment to 20 May 1998 and of
15 October 1996 denying the Motion to Set Aside Arraignment in Criminal
Case No. 96-1667(M) are declared VOID and SET ASIDE. The
arraignment of private respondents Mayor Santiago Yabut, Servillano
Yabut and Martin Yabut and their separate pleas of not guilty are likewise
declared VOID and SET ASIDE. Furthermore, the order of public respondent
Secretary of Justice of 1 July 1996 is SET ASIDE and his order of 7 June
1996 REINSTATED.
The Office of the Provincial Prosecutor of Pampanga is DIRECTED
to comply with the order (letter) of the Secretary of Justice of 7 June
1996 by forthwith filing with the trial court the amended information for
murder. Thereafter the trial court shall proceed in said case with all
reasonable dispatch.
No pronouncement as to costs.
SO ORDERED.
Bellosillo, Vitug, Panganiban, and Quisumbing, JJ., concur.
CRIMINAL PROCEDURE RULE 110
Republic of the Philippines SUPREME COURT Manila
EN BANC
G.R. No. 103102 March 6, 1992
CLAUDIO J. TEEHANKEE, JR., petitioner, vs.
HON. JOB B. MADAYAG and PEOPLE OF THE PHILIPPINES, respondents.
REGALADO, J.:
In this special civil action for certiorari, prohibition and mandamus,
petitioner principally seeks: (1) to nullify the order 1 of respondent judge
admitting the amended information for murder filed in Criminal Case No.
91-4606; (2) to nullify the arraignment and the plea of not guilty entered
by order of respondent judge when petitioner refused to be arraigned on
the amended information for lack of preliminary investigation therefor; (3)
to nullify the appointment of a counsel de oficio/PAO lawyer to represent
petitioner; (4) to prohibit
respondent judge from "over-speedy and preferential scheduling of the
trial of the aforementioned criminal case;" and (5) to compel respondent
judge to order preliminary investigation of the crime charged in the
amended information.
Petitioner was originally charged on July 19, 1991 in an information 2 for
the crime of frustrated murder allegedly committed as follows:
That on or about the 13th day of July 1991, in the Municipality of Makati,
Metro Manila, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, while armed with a handgun, with intent
to kill, treachery and evident premeditation, did then and there willfully,
unlawfully, and feloniously attack, assault and shoot one Maureen Navarro
Hultman on the head,
thereby inflicting gunshot wounds, which ordinarily would have caused the
death of said Maureen Navarro Hultman, thereby performing all the acts of
execution which would have produced the crime of Murder as a
consequence, but nevertheless did not produce it by reason of cause or
causes
independent of her will, that is, due to the timely and able medical
assistance rendered to said Maureen Navarro Hultman which prevented
her death.
After the prosecution had rested its case, petitioner was allowed to file a
motion for leave to file a demurrer to evidence. However, before the said
motion could be filed, Maureen Navarro Hultman died.
Consequently, private prosecutor Rogelio A. Vinluan filed an omnibus
motion 3 for leave of court to file an amended information and to admit
said amended information. The amended
information, 4 filed on October 31, 1991, reads:
That on or about the 13th day of July, 1991, in the Municipality of Makati,
Metro Manila, Philippines and within the jurisdiction of this Honorable
Court, the said Claudio Teehankee, Jr. y. Javier, armed with a handgun,
with intent to kill and evident premeditation and by means of treachery,
did then and there willfully, unlawfully and feloniously attack, assault and
shoot with the said handgun Maureen Navarro Hultman who was hit in the
head, thereby inflicting mortal wounds which directly caused the death of
said Maureen Hultman.
Petitioner filed an opposition 5 thereto, as well as a rejoinder 6 to the reply
7 of the prosecution. On November 13, 1991, the trial court issued the
questioned order admitting the amended information.
At the scheduled arraignment on November 26, 1991, petitioner refused to
be arraigned on the amended information for lack of a preliminary
investigation thereon. By reason of such refusal, respondent judge ordered
that a plea of "not guilty" be entered for petitioner.
Thereafter, respondent judge ordered the prosecution to present its
evidence. When petitioner's counsel manifested that he would not take
part in the proceedings because of the legal issue raised, the trial court
appointed a counsel de oficio to represent herein petitioner.
Petitioner now raises the following issues before us:
(a) Whether or not an amended information involving a substantial
amendment, without preliminary investigation, after the prosecution has
rested on the original information, may legally and validly be admitted;
(b) Whether or not a counsel de oficio may legally and validly be appointed
to represent an accused who is represented by counsel of choice who
refuses to participate in the proceedings because of a perceived denial of
due process and after a plea for appellate remedies within a short period is
denied by the trial court; and
(c) Whether or not a particular criminal case may legally and validly be
rushed and preferentially scheduled for trial over and at the expense and
sacrifice of other, specially older, criminal cases. 8
In our resolution of January 14, 1992, we required the Solicitor General to
file a comment to the basic petition. It appearing from a further review of
the record that the operative facts and determinant issues involved in this
case are sufficiently presented in the petition and the annexes thereto,
both in regard to the respective positions of petitioner and respondents,
the Court has decided to dispense with the aforesaid comment to obviate
needless delay in fairness to petitioner.
I. Petitioner avers that the additional allegation in the amended
information, as herein underscored, that the accused ". . . did then and
there willfully, unlawfully and feloniously attack, assault and shoot with
the said handgun Maureen Navarro Hultman who was hit in the head,
thereby inflicting mortal wounds which directly caused the death of said
Maureen Hultman . . ." constitutes a substantial amendment since it
involves a change in the nature of the offense charged, that is, from
frustrated to consummated murder. Petitioner further submits that
"(t)here is a need then to
establish that the same mortal wounds, which were initially frustrated (sic)
by timely and able medical assistance, ultimately caused the death of the
victim, because it could have been caused by a supervening act or fact
which is not imputable to the offender." 9 From this, he argues that there
being a substantial

amendment, the same may no longer be allowed after arraignment and
during the trial.
Corollary thereto, petitioner then postulates that since the amended
information for murder charges an entirely different offense, involving as it
does a new fact, that is, the fact of death whose cause has to be
established, it is essential that another preliminary investigation on the
new charge be conducted before the new information can be admitted.
We find no merit in the petition. There are sufficient legal and
jurisprudential moorings for the orders of the trial court.
Section 14, Rule 110 of the 1985 Rules on Criminal Procedure provides:
Sec. 14. Amendment. The information or complaint may be amended, in
substance or form, without leave of court, at any time before the accused
pleads; and thereafter and during the trial as to all matters of form, by
leave and at the discretion of the court, when the same can be done
without prejudice to the rights of the accused.
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
Rule 119, Section 11, provided the accused would not be placed thereby in
double jeopardy and may also require the witnesses to give bail for their
appearance at the trial.
The first paragraph provides the rules for amendment of the information
or complaint, while the second paragraph refers to the substitution of the
information or complaint.
It may accordingly be posited that both amendment and substitution of
the information may be made before or after the defendant pleaded, but
they differ in the following respects:
1. Amendment may involve either formal or substantial changes, while
substitution necessarily involves a substantial change from the original
charge;
2. Amendment before plea has been entered can be effected without
leave of court, but substitution of information must be with leave of court
as the original information has to be dismissed;
3. Where the amendment is only as to form, there is no need for another
preliminary investigation and the retaking of the plea of the accused; in
substitution of information, another preliminary investigation is entailed
and the accused has to plead anew to the new information; and
4. An amended information refers to the same offense charged in the
original information or to an offense which necessarily includes or is
necessarily included in the original charge, hence substantial amendments
to the information after the plea has been taken cannot be made over the
objection of the accused, for if the original information would be
withdrawn, the accused could invoke double jeopardy. On the other hand,
substitution requires or presupposes
CRIMINAL PROCEDURE RULE 110
that the new information involves a different offense which does not
include or is not necessarily included in the original charge, hence the
accused cannot claim double jeopardy.
In determining, therefore, whether there should be an amendment under
the first paragraph of Section 14, Rule 110, or a substitution of information
under the second paragraph thereof, the rule is that where the second
information involves the same offense, or an offense which necessarily
includes or is necessarily included in the first information, and amendment
of the information is sufficient; otherwise, where the new information
charges an offense which is distinct and different from that initially
charged, a substitution is in order.
There is identity between the two offenses when the evidence to support a
conviction for one offense would be sufficient to warrant
a conviction for the other, or when the second offense is exactly the same
as the first, or when the second offense is an attempt to commit or a
frustration of, or when it necessarily includes or is necessarily included in,
the offense charged in the first information. In this connection, an offense
may be said to necessarily include another when some of the essential
elements or ingredients of the former, as this is alleged in the information,
constitute the latter. And, vice-versa, an offense may be said to be
necessarily included in another when the essential ingredients of the
former constitute or form a part of those constituting the latter. 10
Going now to the case at bar, it is evident that frustrated murder is but a
stage in the execution of the crime of murder, hence the former is
necessarily included in the latter. It is indispensable that the essential
element of intent to kill, as well as qualifying circumstances such as
treachery or evident premeditation, be alleged in both an information for
frustrated murder and for murder, thereby meaning and proving that the
same material
allegations are essential to the sufficiency of the informations filed for
both. This is because, except for the death of the victim, the essential
elements of consummated murder likewise constitute the essential
ingredients to convict herein petitioner for the offense of frustrated
murder.
In the present case, therefore, there is an identity of offenses charged in
both the original and the amended information. What is involved here is
not a variance in the nature of different offenses charged, but only a
change in the stage of execution of the same offense from frustrated to
consummated murder. This is being the case, we hold that an amendment
of the original information will suffice and, consequent thereto, the filing
of the amended information for murder is proper.
Petitioner would insist, however, that the additional allegation on the fact
of death of the victim Maureen Navarro Hultman constitutes a substantial
amendment which may no longer be allowed after a plea has been
entered. The proposition is erroneous and untenable.
As earlier indicated, Section 14 of Rule 110 provides that an amendment,
either of form or substance, may be made at any time before the accused
enters a plea to the charge and, thereafter, as to all matters of form with
leave of court.
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. 11 Thus, the following have been held to
be merely formal amendments, viz: (1) new allegations which relate only
to the range of the penalty that the court might impose in the event of
conviction; 12 (2) an amendment which does not charge another offense
different or distinct from that charged in the original one; 13 (3) additional
allegations which
do not alter the prosecution's theory of the case so as to cause surprise to
the accused and affect the form of defense he has or will assume; and (4)
an amendment which does not adversely affect any substantial right of the
accused, such as his right to invoke prescription. 14
We repeat that after arraignment and during the trial, amendments are
allowed, but only as to matters of form and provided that no prejudice is
caused to the rights of the accused. 15 The test of whether an amendment
is only of form and an accused is not prejudiced by such amendment has
been said to be whether or not a defense under the information as it
originally stood would be equally available after the amendment is made,
and whether or not
any evidence the accused might have would be equally applicable to
the information in the one form as in the other; if the answer is in the
affirmative, the amendment is one of form and not of substance. 16
Now, an objective appraisal of the amended information for murder filed
against herein petitioner will readily show that the nature of the offense
originally charged was not actually changed. Instead, an additional
allegation, that is, the supervening fact of the death of
the victim was merely supplied to aid the trial court in determining the
proper penalty for the crime. That the accused committed a felonious act
with intent to kill the victim continues to be the prosecution's theory.
There is no question that whatever defense herein petitioner may adduce
under the original information for frustrated murder equally applies to the
amended information for murder. Under the circumstances thus obtaining,
it is irremissible that the amended information for murder is, at most, an
amendment as to form which is allowed even during the trial of the case.
It consequently follows that since only a formal amendment was involved
and introduced in the second information, a preliminary investigation is
unnecessary and cannot be demanded by the accused. The filing of the
amended information without the
requisite preliminary investigation does not violate petitioner's right to be
secured against hasty, malicious and oppressive prosecutions, and to be
protected from an open and public accusation of a crime, as well as from
the trouble, expenses and anxiety of a public trial. The amended
information could not conceivably have come as a surprise to petitioner
for the simple and obvious reason that it charges essentially the same
offense as that charged under the original information. Furthermore, as we
have heretofore held, if
the crime originally charged is related to the amended charge such that an
inquiry into one would elicit substantially the same facts that an inquiry
into the other would reveal, a new preliminary investigation is not
necessary. 17
We find nothing irregular in the appointment by the trial court of a counsel
de oficio for herein petitioner whose counsel of record refused to
participate in the proceedings because of an alleged legal issue. Such issue

having been demonstrated herein as baseless, we apprehend his refusal to
participate in the trial as causative of or contributive to the delay in the
disposition of the case. And, finally, for as long as the substantial rights of
herein petitioner and other persons charged in court are not prejudiced,
the scheduling of cases should be left to the sound discretion of the trial
court.
WHEREFORE, it being clearly apparent that respondent judge did not
commit the errors speciously attributed to him, the extraordinary writs
prayed for are hereby DENIED and the instant petition is DISMISSED for
lack of merit.
SO ORDERED.
Narvasa, C.J., Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano,
Padilla, Bidin, Grio-Aquino, Medialdea, Davide, Jr., Romero and Nocon, JJ.,
concur.
Bellosillo, J., took no part.
CRIMINAL PROCEDURE RULE 110
SECOND DIVISION
DENNIS T. GABIONZA, petitioner, vs. COURT OF APPEALS and
PEOPLE OF THE PHILIPPINES, respondents.
D E C I S I O N BELLOSILLO, J.:
May an Information be amended to change the material dates of the
commission of the offense after the accused had been arraigned?
DENNIS T. GABIONZA seeks a review of the Decision of the Court of
Appeals in CA-G.R. No. 49098-SPdismissing his petition for certiorari
assailing the order of the Regional Trial Court in Crim. Case No. Q-93-
50552 which allowed the amendment of the Information charging
him with violation of RA 1161 (The Social Security Law) as amended.
On 9 November 1993 an Information was filed against petitioner accusing
him of violating Sec. 22, pars. (a) and (d), in relation to Sec.
28, par. (e), of RA 1161. It alleged that in and about or during the period
from January 1991 to May 1993 petitioner, President of the Manila City
Bus Corporation, a compulsorily-covered employer under RA 1161, willfully
and unlawfully failed, neglected and refused to remit to the Social Security
System (SSS) contributions for SSS, Medicare and Employee
Compensation (EC) amounting to P1,652,330.10 and the 3% penalty
imposed thereon in the amount of P541,417.87.
Petitioner was arraigned on 7 December 1993. On 10 February
1998 or about four (4) years after he was arraigned, the public
prosecutor filed a Motion for Leave of Court to Amend Information, to
change the material dates stated in the Information from January
1991 to May 1993 to January 1991 to May 1992. Petitioner opposed
the motion contending that the proposed amendment was substantial in
nature, hence to allow the same would be a violation of his right to be
informed of the cause and nature of the accusation against him, and would
negate or prejudice defenses that were otherwise available to him.
On 31 March 1998 the trial court granted the motion and allowed
amendment of the Information, ruling that the amendment pertained only
to matters of form. It further ruled that the amendment would not
prejudice the rights of the accused as the theory of the prosecution
remained the same. On 2 September 1998 petitioners motion to
reconsider the order was denied.
Petitioner elevated the issue to the Court of Appeals in a petition for
certiorari under Rule 65 seeking to annul the order of the trial court. On 9
June 1999 respondent Court of Appeals upheld the amendment and
dismissed the petition. It held that the amendment cannot be deemed an
amendment in substance, as it will in no wise or manner impair whatever
defense or defenses the accused could or might have interposed in the
original information, even as it will not render unavailable or inapplicable
in the amended information, whatever evidence the accused might or
could have adduced or presented in the original information. Hence this
petition for review under Rule 45 of the 1997 Rules of Civil Procedure.
The proper procedure for the amendment of an Information is governed
by Sec. 14, Rule 110, of the Rules on Criminal Procedure -
Sec. 14. Amendment. - The information or complaint may be amended, in
substance or form, without leave of court at any time before the accused
pleads; and thereafter and during the trial as to all matters of form, by
leave and at the discretion of the court, when the same can be done
without prejudice to the rights of the accused x x x x
After the accused enters a plea, amendments to the Information may be
allowed, as to matters of form, provided that no prejudice is caused to the
rights of the accused. The test as to when the rights of an accused are
prejudiced by the amendment of a Complaint or Information is when a
defense under the Complaint or Information, as it originally stood, would
no longer be available after the amendment is made, and when any
evidence the accused might have, would be inapplicable to the Complaint
or the Information as amended.
On the other hand, an amendment which merely states with additional
precision something which is already contained in the original information,
and which, therefore, adds nothing essential for conviction for the crime
charged is an amendment to form that can be made at any time.
Jurisprudence allows amendments to information so long as: (a) it does
not deprive the accused of the right to invoke prescription; (b) it does not
affect or alter the nature of the offense originally charged; (c) it does not
involve a change in the basic theory of the prosecution so as to require the
accused to undergo any material change or modification in his defense; (d)
it does not expose the accused to a charge which would call for a
higher penalty; and, (5) it does not cause surprise nor deprive the accused
of an opportunity to meet the new averment.
In the case at bar, it is clear that the questioned amendment is one of form
and not of substance. The allegation of time when an offense is committed
is a matter of form, unless time is a material ingredient of the offense. It is
not even necessary to state in the Information the precise time the offense
was committed unless time is a material factor. It is sufficient that the act
is alleged to have been committed at any time as near to the actual date at
which the offense was committed as the Complaint or Information will
permit.
Thus, petitioner's argument that the amendment prejudiced his rights is
untenable. We fail to see how his original defenses would be rendered
inapplicable by the amendment, nor the prosecution's
theory in anyway altered by the same. Petitioner failed to adduce any
evidence in support of his allegation that the amendment would adversely
affect his rights.
Petitioner invokes Wong v. Yatco, People v. Opemia and People v. Reyes in
support of his cause. However, we hold that the ratio decidendi of the
three (3) cases does not apply in the present case.
In Wong the prosecution amended the Information of a violation of
Commonwealth Act No. 104 to change the dates of the violation from May
3, 1954 to October 11, 1954 to between January
2, 1955 and March 17, 1955. The Court disallowed the amendment
because in 1954, the law punishing the act had not been published yet,
therefore there was no crime in legal contemplation. The Court said that
since an amended Information retroacted to the time of the original one,
the proper course would have been not to amend the previous
Information but to file another one. This crucial fact is not involved here.

In Opemia the Court held, "the period of almost five years between
1947 and 1952 covers such a long stretch of time that one may be led to
believe that another theft different from that committed by the
defendants in 1952 was also perpetrated by them in 1947. The variance is
certainly unfair to them, for it violates their constitutional rights to be
informed before the trial of the specific charge against them and deprives
them of the opportunity to defend themselves."
In Reyes, this Court held that the disparity of time between the years 1964
and 1969 is so great as to defy approximation in the commission of one
and the same offense."
The last two (2) cases involved changes in dates which were so far
removed from each other that substituting one for the other would clearly
work to the detriment of the right of the accused to be informed of the
nature and cause of the charges against him. This is not so in the present
case. For one, a comparison of the amended
Information (January 1991 to May 1992) and the original one (January
1991 to May 1993) shows that the period stated in the former is even
shorter than and is included within the latter. Also, the averment in or
about and during the period gives a sufficient approximation of the
date of the commission of the offense. Therefore, the first
Information had adequately informed petitioner of the period of
time when the crime was committed. No surprise, ergo, no violation of
rights, could spring from merely replacing the original period, more so with
one that is shorter and included within the same.
Moreover, the imposable penalty will not increase as a result of the
amendment. A reading of Sec. 28, par. (e), RA 1611, shows that it
penalizes, among others, the failure or refusal of a compulsorily- covered
employer from remitting compulsory contributions to the SSS. Neither
time nor duration of the offense charged is a material ingredient of the
offense. In fact, the penalty imposed for this violation is constant at six
(6) years and one (1) day to twelve (12) years, regardless of the number of
infractions.
Petitioner contends that because of the lapse of time between the filing of
the Information and the amendment laches had set in.
We find no merit in this argument. Laches is defined as the failure or
neglect, for an unreasonable and unexplained length of time, to do that
which by exercising due diligence could or should have been done earlier;
it is negligence or omission to assert a right within a reasonable time,
warranting a presumption that a party entitled to assert it either has
abandoned it or declined to assert it. As the Solicitor General correctly
pointed out, the principle of laches is inapplicable in this case. The
provision in Sec. 14, Rule 110, of the Rules on Criminal Procedure is explicit
that amendments as to form may still be made after arraignment or
during trial. Since the questioned amendment was made during trial, the
same was made seasonably notwithstanding the lapse of four (4) years.
It may also be noted that even before the prosecution had the chance to
present its principal evidence petitioner moved for the suspension of trial
because he filed a petition for certiorari with the Court of Appeals
questioning the denial of his motion to dismiss. Pre- trial was held only on
11 November 1997. As can be seen from the records, the prosecution did
CRIMINAL PROCEDURE RULE 110
not unnecessary waste time in filing the Motion for Leave of Court to
Amend Information. Again, before the prosecution had the opportunity to
present evidence, trial was suspended because of the filing of the instant
case. This, coupled with the many postponements and resettings
requested by petitioner, satisfactorily explains the reasonable delay in the
amendment of the Information. Certainly, the prosecution cannot be
faulted for not filing the amendment earlier since trial was suspended
during the pendency of petitioner's recourse to the Court of Appeals and
to this Court. Petitioner should not then bewail the delay in the
amendment because such delay was principally upon his own behest.
WHEREFORE, the petition is DENIED. The assailed DECISION of the Court of
Appeals in CA-G.R. No. 49098-SP affirming that of the trial court which
allowed the amendment of the Information charging petitioner with
violation of RA No. 1161, as amended, is AFFIRMED.
Considering the delay already incurred in the process, the trial court should
immediately act on this case with deliberate dispatch upon its remand,
which this Court DIRECTS. Costs against petitioner.
SO ORDERED.
Mendoza, Quisumbing, Buena and De Leon, Jr., JJ., concur.
SECOND DIVISION
MARIO W. CHILAGAN, SR. complainant, vs. ACTING PRESIDING JUDGE
EMELINA L. CATTLING, 3rd MCTC, Alfonso Lista- Aguinaldo, Mayoyao,
Ifugao, respondent.
R E S O L U T I O N BUENA, J.:
In his Sworn Letter-Complaint dated 1 May 2000 and Letter- Complaint
dated 16 July 2000, with enclosures, complainant charges respondent
Acting Judge Emelina L. Cattiling with Gross Ignorance of the Law and
Grave Abuse of Authority relative to the following cases, to wit:
1.) In Civil Case No. III-00-91 entitled, "Jessie C. Domingo vs. Oliver Pavo, et
al.," for Forcible Entry with Prayer for a Writ of Preliminary Mandatory
Injunction and Damages, complainant, one of the defendants therein,
alleges that a day after the case was filed, respondent issued a Temporary
Restraining Order (TRO) without notice and hearing. Complainant claims
that summons and copy of the complaint were not served on the
defendants and there was no application for TRO in the complaint.
Complainant further alleges that respondent issued a preliminary
injunction without the order fixing the amount of bond required; that she
merely relied on the allegation that the amount of P50,000.00 was
deposited with the Clerk of Court and which amount was reduced to
P40,000.00; that inquiry revealed that no such amount was deposited and
that the amount was missing.
Complainant alleges in his Supplemental Affidavit Complaint dated 12
December 2000, that on 8 September 2000, respondent Judge rendered a
decision in favor of the plaintiffs. On 21 September
2000, complainant, through counsel, filed a Notice of Appeal.
Allegedly, despite receipt of the notice of appeal and the Urgent
Opposition to the Motion for Execution, respondent issued a Writ of
Execution on 3 October 2000. Complainant also avers that despite the
perfection of appeal and payment of appeal fee, respondent ordered the
demolition of the structures built by occupants of the land subject matter
of the case.
2.) In Criminal Case No. III-96-353, entitled "People vs. Ruben Pagatpatan,"
for Murder, complainant claims that he is a relative of the victim, a six-year
old boy who was twice run-over by the motorcycle of the accused.
Complainant alleges that a criminal complaint for Murder against
the accused was filed by the police. Complainant avers that
respondent took it upon herself to investigate the case despite the
presence of Assistant Prosecutor Joseph Baguilat and recommended that
the offense to be charged against the accused should only be homicide
through reckless imprudence. Respondent allegedly recommended bail of
P5,000.00 and later released the accused. Complainant states that when
the case was investigated by the Provincial Prosecutor of Ifugao, the crime
charged was elevated to murder.
3.) In Civil Case No. III-98-74 entitled "Thomas Bastian vs. Corazon Apagan,
et al.," for tender of Payment, Consignation, Redemption and Damages
With prayer for Preliminary Injunction, complainant alleges that without
issuing a notice of hearing, respondent issued a restraining order dated 11
January 1999, and ordered the plaintiff to put up a bond in the

amount of P20,000.00. Complainant avers that on 12 December, prior to
the issuance of the restraining order, plaintiff offered the property in
dispute, land covered by TD No. 93-140 of the property rolls of Aguinaldo,
Ifugao, as injunction bond. On 15 June 1999, respondent allegedly
approved the said bond and issued the preliminary injunction without the
necessary hearing. Complainant suspects that respondent is in cahoots
with plaintiff's counsel regarding the irregular issuance of several orders.
Complainant also notes that the P20,000.00 is missing.
On 1 September 2000, the Legal Office, Office of the Court Administrator,
received an undated and unsigned comment consisting of 4 pages and
enclosures, which apparently came from respondent Judge Cattiling.
Anent Civil Case No. III-00-91, respondent Judge explains that complainant
is one of the 29 defendants in the civil case and enumerates the series of
events that transpired as follows: The Court received the complaint on 13
March 2000. The following day, an ex- parte urgent motion for immediate
hearing on the prayer for the issuance of a writ of preliminary injunction
was filed. On 15 March
2000, the last day of the month for respondent to report at MCTC, Alfonso
Lista, a TRO was issued to all persons named as defendants in the
complaint in compliance with BP Blg. 224, the rule on the issuance of TRO.
The Court set the hearing of the application for preliminary mandatory
injunction on 3 April 2000. A copy of the order and summons were served
to all the defendants including herein complainant whose copy was sent
through the PNP Warrant Officer of Mayoyao, Ifugao on 16 March 2000,
and received by said Warrant Officer on 29 March 2000. On 3 April 2000,
the application for a writ of preliminary mandatory injunction was heard
with only three of the 29 defendants appearing through counsel. Evidences
for both sides were presented. On the same day, the Court issued an order
for the issuance of writ of preliminary mandatory injunction and plaintiff
was ordered to put up a bond of P40,000.00 with the Clerk of Court. On
10 April 2000, the Court issued the Writ of Preliminary Mandatory
Injunction after plaintiff posted an injunction bond. The writ was served on
the defendants on 11 April 2000.
On the supplemental complaint (regarding Civil Case No. III-00-
91), respondent states in her Comment thereto that MCTC Alfonso Lista
already lost jurisdiction of the case on 9 October 2000 when the court
directed that the records be transmitted to the Regional Trial Court. Thus,
she could no longer have issued any order relative to the case; more so
the alleged order of demolition complained
of. Respondent also states that complainant ought to have attached the
questioned order to prove his allegation. As to the
implementation of the order of demolition, respondent claims to have no
knowledge of the fact of demolition because no order was ever issued.
Anent Criminal Case No. III-96-353, respondent claims that she conducted
the preliminary investigation because the complaint was received by and
filed with the MCTC, Alfonso Lista. She avers that as a Municipal Judge, she
is authorized to conduct preliminary investigation pursuant to Section 2,
Rule 112 of the Rules on Criminal Procedure.
Except for respondent's act of downgrading the crime charged from
murder to homicide through reckless imprudence, the other charges are
devoid of merit.
CRIMINAL PROCEDURE RULE 110
The issue raised relative to the issuance of the TRO and preliminary
injunction is belied by the narration of the series of events that transpired
in Civil Case No. III-00-91. Complainant failed to prove that the issuance of
the TRO and the preliminary injunction is attended with irregularity. As to
the charge that respondent issued writ of execution despite the perfection
of appeal, complainant failed to adduce evidence that he filed the
necessary bond and deposited the reasonable compensation to stay
execution, pursuant to Section
19, Rule 70, of the Revised Rules on Civil Procedure. In the absence of
proof that he complied with the requirements of the said Rule, there is no
reason to hold that the execution of the judgment pending appeal was
irregular.
With regard to Crim. Case No. III-96-353, on the allegation that respondent
has no authority to conduct preliminary investigation because of the
presence of the Asst. Provincial Prosecutor in the area, we find
respondent's act to be in accordance with Section 2, Rule 112 of the Rules
on Criminal Procedure that judges of the Municipal Trial
Courts and Municipal Circuit Trial Courts are authorized to conduct
preliminary investigation.
We, however, find respondent in error when she reduced the charge of
Murder to Homicide through Reckless Imprudence. The Court in a number
of cases has declared that a municipal judge has no authority to determine
the character or designation of the crime but only to determine whether or
not the evidence presented supported prima facie the allegations of
facts contained in the complaint. The power to amend a complaint at any
time before the accused pleads, both in form and substance, without leave
of court, is lodged in the prosecuting officer and not in the trial judge.
Respondent failed to submit her comment on the allegations relative to
Civil Case No. III-98-74. Nevertheless, no valid ground is found to hold her
liable for the charges therein. Besides being unsubstantiated, the
allegations as presented by complainant are quite hazy. Moreover,
complainant does not appear to be a party to the case. No further
investigation on the matter is warranted.
WHEREFORE, respondent Judge Emelina L. Cattiling is FINED in the amount
of Five Thousand Pesos (P5,000.00) for amending the criminal charge from
murder to homicide through reckless imprudence in Criminal Case No. III-
96-353 and the other charges against respondent are DISMISSED for lack of
merit.
SO ORDERED.
SECOND DIVISION
DATU GUIMID P. MATALAM, petitioner, vs. THE SECOND DIVISION OF
THE SANDIGANBAYAN and THE PEOPLE OF THE PHILIPPINES,
respondents.
R E S O L U T I O N CHICO-NAZARIO, J.:
Before Us is a Petition for Certiorari under Rule 65 of the 1997
Rules on Civil Procedure assailing the resolutions of the
Sandiganbayan in Criminal Case No. 26381, admitting the Amended
Information and denying petitioners Motion for
Reconsideration, dated 12 January 2004 and 03 November 2004,
respectively.
An information dated 15 November 2004 was filed before the
Sandiganbayan charging petitioner Datu Guimid Matalam, Habib A.
Bajunaid, Ansari M. Lawi, Muslimin Unga and Naimah Unte with violation
of Section 3(e) of Republic Act No. 3019, as amended, for their alleged
illegal and unjustifiable refusal to pay the monetary claims of Kasan I.
Ayunan, Abdul E. Zailon, Esmael A. Ebrahim, Annabelle Zailon, Pendatun
Mambatawan, Hyria Mastura and Faizal I. Hadil. The accusatory portion of
the information reads:
That from the period January 1998 to June 1999, in Cotabato City, and
within the jurisdiction of this Honorable Court, the accused ARMM Vice-
Governor and Regional Secretary, DAR, DATU GUIMID MATALAM, a high
ranking public official, HABIB A. BAJUNAID, ANSARI M. LAWI, MUSLIMIN
UNGA and NAIMAH UNTE, all low- ranking public officials, committing the
offense while in the performance of their official duties and taking
advantage of their public position, conspiring, confederating and mutually
aiding one another, did there and then, willfully, unlawfully and criminally,
cause undue injury to several employees of the Department of
Agrarian Reform, cotabato City, thru evident bad faith in the performance
of their official duties to wit: by illegally and unjustifiably refusing to pay
the monetary claims of the complaining DAR employees namely: KASAN I.
AYUNAN, ABDUL E. ZAILON, ESMAEL A. EBRAHIM, ANNABELLE ZAILON,
PENDATUN MAMBATAWAN, HYRIA MASTURA and FAIZAL I. HADIL, for the
period of January 1998 to June 1999 amounting to P1,606,788.50 as
contained in Civil Service Resolutions Nos. 982027 and 990415 in
the nature of unpaid salaries during the period when they have been
illegally terminated, including salary differentials and other benefits.
On 14 August 2002, petitioner filed a Motion for Reinvestigation. Per
order of the court, a reinvestigation of the case was
conducted where petitioner filed his Counter-Affidavit.
After the reinvestigation, the public prosecutor filed a Manifestation and
Motion to Admit Amended Information Deleting the Names of Other
Accused Except Datu Guimid Matalam to which petitioner filed a Motion to
Dismiss and Opposition to the Motion to Admit the Alleged Amended
Information Against the Accused Guimid P. Matalam. Thereafter, the
public prosecutor filed his Reply to which petitioner filed a Rejoinder.
The Amended Information reads:

That on December 16, 1997 and for sometime prior or subsequent thereto,
in cotabato City, and within the jurisdiction of this Honorable Court, the
above named accused a public officer being then the ARMM Vice-
Governor and Regional Secretary DAR, committing the offense while in the
performance of his official duties and thru evident bad faith and manifest
partiality did there and then, willfully, unlawfully and criminally, cause
undue injury by illegally dismissing from the service complaining DAR-
Maguindanao employees, cotabato City, namely: Kasan I. Ayunan, Abdul E.
Zailon,
Annabelle Zailon, Pendatum Mambatawan, Hyria Mastura and Faizal I.
Hadil, to their damage and prejudice amounting to P1,606,788.50 by way
of unpaid salaries during the period when
they have been illegally terminated including salary differentials and other
benefits.
In his Motion to Dismiss, petitioner alleged that the amended information
charges an entirely new cause of action. The corpus delicti of the
amended information is no longer his alleged refusal to pay the backwages
ordered by the Civil Service Commission, but the alleged willful, unlawful
and illegal dismissal from the service of the complaining witnesses. He
insists that the amended information charging a separate and entirely
different offense cannot be admitted because there would be a serious
violation of due process of law. He claims he is entitled to a preliminary
investigation since he was not informed that he is being charged for the
alleged dismissal of the complaining witnesses and that he was not given
the opportunity to explain.
On 12 January 2004, the Sandiganbayan granted the Manifestation and
Motion to Admit Amended Information Deleting the Names of Other
Accused Except Datu Guimid P. Matalam. It admitted the Amended
Information charging solely petitioner for Violation of Section 3(e) of Rep.
Act No. 3019. The court a quo ruled:
What seems to be more crucial here is, whether the amendments made
are not prejudicial to the rights of the accused and are considered as a
matter of form only, so that, if the Amended Information is admitted,
there would be no need to require the Public Prosecutor to conduct
another preliminary investigation in the observance of the rights of the
accused to due process. On the other hand, if the amendment would be
substantial, necessarily, another preliminary investigation should be
accorded to the accused. Distinction of the two is thus imperative.
...
The Amended Information charges essentially the same offense as that
charged in the original Information which is a Violation of Sec.
3(e) of R.A. 3019. Theoretically, therefore, the amendment is a matter of
form only.
Interestingly, however, the change in the recital of cause of action in the
Amended Information is very much noticeable. As correctly pointed out by
accused Matalam, the corpus delicti in the original Information was the
alleged willful and confederated refusal of the accused to pay the
backwages of the complaining witnesses.
The corpus delicti in the Amended Information is now altered into the
alleged illegal dismissal of the complainants from their service by accused
Matalam. Certainly, the two causes of action differ differently from each
other.
CRIMINAL PROCEDURE RULE 110
Following the aforementioned principles laid down by the Supreme Court,
the amendments seem to be substantial considering that the main defense
of all the accused in the original information the lack of a corresponding
appropriation for the payment of the monetary claims of the complaining
witnesses would not, in itself alone, stands as a defense for accused
Matalam in the Amended Information anymore. In the same manner, the
evidence that
accused Matalam would have to present in the original Information, had it
not been found to be without prima facie evidence, will not
be equally available to bail him out in the Amended Information
anymore. And further, although the nature of the offense charged has not
changed, the theory of the case as against accused Matalam is now
deemed to have been changed because the cause of action now varies and
therefore, he would have to formulate another defense again.
However, after making a meticulous and independent assessment on the
evidence obtaining on record, this Court agrees with the findings and
recommendation of the Public Prosecutor that the real and exact issue in
this case is actually the alleged illegal dismissal of the complaining
witnesses. The issue of non-payment of their backwages is merely
incidental because had it not been for the alleged illegal dismissal, their
demand for monetary claims should have not arisen. Put in another
perspective, the surrounding circumstances that brought about the issue
of the alleged illegal dismissal were actually the ones that spewed the issue
of unpaid backwages.
Furthermore, as correctly observed by the Public Prosecutor, the change in
the recital of the cause of action does not conceivably come as a surprise
to the accused. In fact, in his counter-affidavit submitted before the Public
Prosecutor, accused Matalam already took the occasion to elaborate his
version on the surrounding circumstances that brought about the alleged
illegal dismissal of the complaining witnesses. And these chain of
circumstances, actually, were the very preceding circumstances as to why
the complaining witnesses had suffered their alleged injury. The need for
another preliminary investigation is therefore not necessary.
Given the foregoing factual milieu, the rights of accused Matalam are not,
after all, in any way prejudiced because an inquiry to the allegations in the
original cause of action would certainly and necessarily elicit substantially
the same facts to the inquiry of the allegations in the new cause of action
contained in the Amended Information.
To remand this case again to the Public Prosecutor would certainly be a
waste of time considering that accused, in his counter-affidavit, had
already explained extensively his defense on the new
allegations contained in the Amended Information sought to be
admitted. And definitely, his projected defense would be the same
assuming that another preliminary investigation be conducted and that he
would be required to submit another counter-affidavit again.
On 11 February 2004, petitioner filed a Motion for
Reconsideration which the prosecution opposed. On 03 November
2004, the Sandiganbayan denied the Motion. It explained:
While it is true that accused-movants defense in the original information
could not by itself stand alone as his defense to the amended one,
however, the same would still be available for the latter because although
the two questioned causes of action literally varied, they are nonetheless
interrelated with each other. The essential ingredients of the amended
information are actually identical with those constituting the original, such
that, the inquiry into one would elicit substantially the same facts that an
inquiry into the other would reveal. And since these two causes of action
had emanated from the same set of factual settings, the evidence that
accused-movant might have under the original information would still be
available and applicable to the amended one.
Be it noted that the private complainants lodged their complaint due to
the alleged injury they suffered as a consequence of the alleged refusal of
the accused-movant to pay them of their backwages. And notably, based
on the affidavit that the accused- movant had submitted, his defense to
this was due to the lack of funds appropriated for the said purpose. But
why was there no appropriation? Because, allegedly, the private
complainants were illegally dismissed from their service and as a result
thereof, their names were subsequently stricken off from the roster of
employees in the government agency where they were connected.
Culled from these factual settings, the root cause of the alleged injury
suffered by the private complainants would therefore be their alleged
illegal dismissal from the service. Otherwise, their names would not have
been stricken off from the roster of employees in
the agency which they were connected with and the appropriation for the
payment of their salaries would have been continuously made.
Thus, from the foregoing, although there was a change in the recital of the
cause of action (from non-payment of backwages into illegal dismissal), the
amendment of the information did not however affect or alter the nature
of the offense that was originally charged. Neither did it change the basic
theory of the prosecution since this remained to be a violation of Sec. 3(e)
of R.A. 3019 on account of
the alleged injury caused to the private complainants. And even if the
prosecutions theory would now be premised on the new cause of action
(illegal dismissal), this would not however cause surprise
to the accused-movant nor would require him to undergo a material
change or modification in his defense because in presenting his defense,
he still has to commence from the very same set of factual settings that
preceded the original cause of action. And evidently, this is the reason why
in the affidavit he submitted during the reinvestigation, his discussions
therein consisted not only of his defense to the original information but
also included an extensive discussion regarding his defense to the
amended one.
This being so, the outright admission of the amended information even
without affording the accused-movant a new preliminary investigation did
not amount to a violation of his rights. To afford him another process of
preliminary investigation would no longer serve him and this court any
better considering that he had already explained in the said affidavit his
defense to the amended information. Otherwise, if he is allowed to submit
another one, he is
likely to elaborate again the very same arguments that he had already
invoked in his previous affidavit.
Hence, this petition.

Petitioner argues that the resolutions of the Sandiganbayan dated 12
January 2004 and 03 November 2004 admitting the Amended Information
charging a new offense without conducting a preliminary investigation
were issued without jurisdiction and/or with grave abuse of jurisdiction
amounting to lack of jurisdiction.
From the arguments raised by petitioner, the issue boils down to whether
or not petitioner was deprived of due process of law when the
Sandiganbayan admitted the Amended Information without conducting
another or new preliminary investigation. Firstly, petitioner maintains
that a new preliminary investigation should have been ordered
because the corpus delicti in the Amended Information is the
termination of services of the complaining witnesses, while the corpus
delicti in the Original Information is the alleged refusal to pay the
backwages of the complaining witnesses. In other words, there being a
new and distinct offense, he should be entitled to a new preliminary
investigation. Secondly, he contends he was denied due process when the
Sandiganbayan ruled that if he were allowed to submit another counter-
affidavit, he is likely to elaborate again the very same argument that he
had invoked in his previous affidavit considering that he would have
pointed out certain facts not contained in his counter-affidavit. He added
that despite the finding of the Sandiganbayan that the theory of the case
against him changed because the cause of action varies, and that he would
have to formulate another defense, the Sandiganbayan did not remand the
case to the public prosecutor for preliminary investigation because it was a
waste of time since he had already explained extensively in his counter-
affidavit his defense on the new allegations contained in the Amended
Information. Thirdly, he asserts he was not given the opportunity to show
that he did not act with manifest
partiality and evident bad faith in the dismissal of the seven employees
inasmuch as there are other factors and circumstances that would support
his posture.
In its Comment, respondent People of the Philippines, thru the Office of
the Special Prosecutor, stated that the admission of the Amended
Information without another preliminary investigation would not violate
petitioners right to due process on the ground that the amendment is
merely formal, and to require another preliminary investigation would not
be in obedience to, but in disregard of, the prime purpose for which a
preliminary investigation is ordained by law and jurisprudence. It maintains
that petitioner acted with evident bad faith and manifest partiality in
illegally terminating the complainants from service.
On 10 March 2005, petitioner filed his Reply.
The initial question to be resolved is what kind of amendment was made in
the Information?
Section 14 of Rule 110 of the Revised Rules on Criminal
Procedure provides:
SEC. 14. Amendment or substitution. 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.
CRIMINAL PROCEDURE RULE 110
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.
Before the accused enters his plea, a formal or substantial amendment of
the complaint or information may be made without leave of court. After
the entry of a plea, only a formal amendment may be made but with leave
of court and 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.
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 merely 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; (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 has
been said to be 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.
In the case at bar, the amendment was indeed substantial. The recital of
facts constituting the offense charged was definitely altered. In the original
information, the prohibited act allegedly committed by petitioner was the
illegal and unjustifiable refusal to pay the monetary claims of the private
complainants, while in the amended information, it is the illegal dismissal
from the service of the private complainants. However, it cannot be denied
that the alleged illegal and unjustifiable refusal to pay monetary claims is
related to, and arose from, the alleged illegal dismissal from the service of
the private complainants.
According to Retired Senior Associate Justice Florenz D. Regalado, before
the plea is taken, the information may be amended in substance and/or
form, without leave of court; but if amended in substance, the accused is
entitled to another preliminary investigation, unless the amended charge is
related to or is included in the original charge.
Thus, the rule is: Before or after a plea, a substantial amendment in an
information entitles an accused to another preliminary investigation.
However, if the amended information contains a charge related to or is
included in the original information, a new preliminary investigation is not
required.
The Sandiganbayan and the public prosecutor maintain that petitioner is
not entitled to a new preliminary investigation because the charges in the
original information and amended information are related and the latter
has already presented his defense on the amended charge. Further,
remanding the case to the Public Prosecutor for another preliminary
investigation would be a waste of time considering that petitioner had
already explained extensively his defense on the new allegations contained
in the Amended Information, that is, the accused already elaborated his
version on
the surrounding circumstances that brought about the alleged dismissal of
the complaining witnesses. It added that the change in the recital of the
cause of action will not come as a surprise to the accused because the
causes of action, though different, are nonetheless interrelated, and that
the rights of the accused will not be prejudiced since the inquiry to the
allegations in the original information will certainly and necessarily elicit
substantially the same facts to the inquiry of the allegations in the
Amended Information.
On the other hand, petitioner insists he should be given a new preliminary
investigation because he was not, among other things, given the
opportunity to show that he did not act with manifest partiality and
evident bad faith in the dismissal of the private complainants.
While it is true that the charges in the original and amended informations
are related, i.e., an inquiry into one would have elicited substantially, if not
precisely, the same facts that an inquiry into the other would have brought
into light, this fact should not necessarily deprive an accused to his right to
a new preliminary investigation. As above-stated, the rule is that a new
preliminary investigation is needed if there is a substantial amendment.
The exception, i.e., charge is related or included in the original
information, should not be applied automatically. The circumstances in
every case must be taken into consideration before the accused is
deprived of another preliminary investigation.
The following indispensable elements must be established to constitute a
violation of Section 3(e) of Rep. Act No. 3019, as amended:
1. The accused is a public officer discharging administrative or official
functions or private persons charged in conspiracy with them;
2. The public officer committed the prohibited act during the performance
of his official duty in relation to his public position;
3. The public officer acted with manifest partiality, evident bad faith or
gross inexcusable negligence; and

4. His action caused undue injury to the government or any private party,
or gave any party any unwarranted benefit, advantage or preference to
such parties.
The third element of the offense states that the public officer acted with
manifest partiality, evident bad faith or gross inexcusable negligence in
committing the prohibited act. Admittedly, the alleged illegal dismissal
contained in the amended charge gave rise to the original charge of failure
to pay the monetary claims of private complainants. It cannot be disputed
that petitioner already discussed circumstances surrounding the
termination of services of the private complainants in his counter-affidavit.
However, we find nothing therein that would show that he had already
touched the issue of evident bad faith or manifest partiality. As can be
gathered from the counter-affidavit, there were arguments tending to
counter the presence of evident bad faith, manifest partiality or gross
inexcusable negligence, but the same refer to the allegation of failure to
pay the monetary claims and not to the alleged illegal dismissal. Although
one allegation stemmed from the other, the court a quo and the public
prosecutor cannot say the element of evident bad faith, manifest partiality
or gross inexcusable negligence is the same in both. This being an element
of the offense charged, petitioner should be given the opportunity to
thoroughly adduce evidence on the matter.
If petitioner is not to be given a new preliminary investigation for the
amended charge, his right will definitely be prejudiced because he will be
denied his right to present evidence to show or rebut evidence regarding
the element of evident bad faith and manifest partiality on the alleged
dismissal. He will be denied due process.
A component part of due process in criminal justice, preliminary
investigation is a statutory and substantive right accorded to the accused
before trial. To deny their claim to a preliminary investigation would be to
deprive them of the full measure of their right to due process.
Our rulings in the cases of People v. Magpale and Lava v. Gonzales
where no new preliminary investigation was given because the charges in
the amended informations were related to, or included in, the original
charges cannot apply in the case at bar. The factual milieu in those cases is
different from the case before us.
In Magpale, the accused was charged with violation of Article
176 of the Revised Penal Code for illegal possession of iron brand, and
making or ordering the making thereof. In the notices sent to the accused
in connection with the preliminary investigation of the complaint, the
accused was informed not of one but of both. He was given the chance,
and was placed on guard, to defend himself for both charges. Moreover,
the right of the accused to have another preliminary investigation was
waived when he went forward with the trial.
In Lava, the accused was charged with Complex Rebellion but the charge
was later amended to Simple Rebellion. This court held that a new
preliminary investigation was not necessary there being no change in the
nature of the crime charged, and that accused failed to ask for a
reinvestigation upon learning of the amended information.
In the case of petitioner herein, although the charge remained the same
(Violation of Section 3(e), Rep. Act No. 3019, as amended), the prohibited
act allegedly committed changed, that is, failure to pay monetary claims to
CRIMINAL PROCEDURE RULE 110
illegal dismissal, and he was not given the opportunity to submit his
evidence on the absence or presence of evident bad faith and manifest
partiality as to the illegal dismissal.
Petitioner has not waived his right to a new preliminary investigation and,
instead, is asking for one.
It is settled that the preliminary investigation proper, i.e., the
determination of whether there is reasonable ground to believe that the
accused is guilty of the offense charged and should be subjected to the
expense, rigors and embarrassment of trial, is the function of the
prosecution.
Our ruling in this case does not in any way divest the public prosecutor of
its duty under the Rules. This Court is not determining if petitioner should
or should not be brought to trial. What we are looking into is whether or
not petitioner was given all the opportunity to present countervailing
evidence on the amended charge. Accordingly, finding that petitioner was
not given the chance to fully present his evidence on the amended
information which contained a substantial amendment, a new preliminary
investigation is in order.
As to statement of the court a quo that the conduct of another preliminary
investigation would be merely a waste of time, it must be emphasized that
though the conduct thereof will hold back the progress of the case, the
same is necessary in order that the accused may be afforded his right to a
preliminary investigation. The right of the accused to a preliminary
investigation should never be compromised or sacrificed at the altar of
expediency.
Finally, as to petitioners prayer that the Amended Information be quashed
and dismissed, the same cannot be ordered. The absence or
incompleteness of a preliminary investigation does not warrant the
quashal or dismissal of the information. Neither does it affect the courts
jurisdiction over the case or impair the validity of the information or
otherwise render it defective. The court shall hold in abeyance the
proceedings on such information and order the remand of the case for
preliminary investigation or completion thereof.
WHEREFORE, the petition for certiorari is hereby GRANTED. Respondent
courts resolutions dated 12 January 2004 and 03
November 2004 in Criminal Case No. 26381 are REVERSED AND SET ASIDE.
Respondent court is directed to order the Office of the Ombudsman to
forthwith conduct a preliminary investigation of the charge embodied in
the Amended Information filed against petitioner. It is further directed to
suspend the proceedings in the said case pending termination of the
preliminary investigation, and thereafter to take such action on petitioners
case as may be warranted by the results of said preliminary investigation.
SO ORDERED.
Puno, (Chairman), Austria-Martinez, Callejo, Sr., and Tinga, JJ., concur.
THIRD DIVISION
JOSE ANTONIO C. LEVISTE,
Petitioner,
- versus -
HON. ELMO M. ALAMEDA, HON. RAUL M. GONZALEZ, HON.
EMMANUEL Y. VELASCO, HEIRS OF THE LATE RAFAEL DE LAS ALAS,
Respondents
G.R. No. 182677
Present:
CARPIO MORALES, Chairperson
NACHURA,*
BERSAMIN, ABAD,** and VILLARAMA, JR., JJ.
Promulgated: August 3, 2010
Petitioner was, by Information 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 against petitioner who was
placed under police custody while confined at the
Makati Medical Center.
After petitioner posted a P40,000 cash bond which the trial court
approved, he was released from detention, and his arraignment was
set on January 24, 2007.
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 and the April 18, 2008 Resolution 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.
The private complainants-heirs of De las Alas filed, with the conformity
of the public prosecutor, an Urgent Omnibus Motion 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 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 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. Petitioner also separately moved for
the inhibition of Judge Alameda with prayer to defer action on the
admission of the Amended Information.
The trial court nonetheless issued the other assailed orders, viz: (1)
Order of February 7, 2007 that admitted the Amended
Information for murder and directed the issuance of a warrant of arrest;
and (2) Order of February 8, 2007 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);
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. (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 which the trial
court, after hearings thereon, granted by Order of May 21, 2007, 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.
CRIMINAL PROCEDURE RULE 110
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.
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
on March 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. 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.
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.
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 non- issuance of such injunctive
relief only means that the appellate court did not preliminarily find any
exception to the long-standing doctrine that injunction will not lie to
enjoin a criminal prosecution.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.
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 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. 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, 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 prosecutor without need of
such investigation provided an inquest has been conducted in
accordance with existing rules. In the absence or unavailability of an
inquest prosecutor, the complaint may be filed by the offended party or
a peace officer directly with the proper court on the basis of the
affidavit of the offended party or arresting officer or person.
Before the complaint or information is filed, the person arrested may
ask for a preliminary investigation in accordance with this Rule, but
he must sign a waiver of the provisions of Article 125 of the Revised
Penal Code, as amended, in the presence of his counsel.
Notwithstanding the waiver, he may apply for bail and the investigation
must be terminated within fifteen (15) days from its inception.
After the filing of the complaint or information in court without a
preliminary investigation, the accused may, within five (5) days from
the time he learns of its filing, ask for a preliminary
investigation with the same right to adduce evidence in his defense as
provided 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. As an exception, the rules provide that there is
no need for a preliminary investigation in cases of a lawful arrest
without a warrant involving such type of offense, so long as an
inquest, where available, has been conducted.
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.
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,
belongs to the arrested person.
CRIMINAL PROCEDURE RULE 110
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. Notably, the rules on inquest do not provide for
a motion for reconsideration.
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. The rule referred to is the 2000
National Prosecution Service Rule on Appeal, 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.
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. Thus, in cases where the private complainant is
allowed to intervene by counsel in the criminal action, and is granted
the authority to prosecute, 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.
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.
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.
The prosecutions discretion is not boundless or infinite, however. 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. Indeed, the Court ruled in one case
that:
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.
(underscoring supplied)
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.
While Abugotal v. Judge Tiro 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, 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.
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. 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.
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.
An amendment which operates to vest jurisdiction upon the trial court
is likewise impermissible.
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 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
CRIMINAL PROCEDURE RULE 110
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, 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.(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, it was squarely held that the amendment of the
Information from homicide to murder is one of substance with very
serious consequences. 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 and Pacoy v.
Cajigal, 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. What is
essential is that petitioner was placed on guard to defend himself from
the charge of murder 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.
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. The appellate
court, by Resolution of February 15, 2007, denied petitioners
application for a temporary restraining order and writ of preliminary
injunction. Supplementary efforts to seek injunctive reliefs proved

futile. 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.
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, 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.
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
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. There is a hierarchy of officials in the prosecutory arm of
the executive branch headed by the Secretary of Justice 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.
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. 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
CRIMINAL PROCEDURE RULE 110
obtained nless and until a more thorough investigation is conducted
and eyewitness/es are presented in evidence
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, 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.
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.
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.
Paragraph (a), Section 5, 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.
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 documents submitted 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.
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. 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 examination of the records should be he
extent of the judges examination depends on the exercise of his sound
discretion as the circumstances of the case require. 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. (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
matter or evidence was presented during the reinvestigation of the
case. It should
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 re-evaluate its findings and the evidence
already submitted.
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.
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. 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.
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.
CRIMINAL PROCEDURE RULE 110
SECOND DIVISION
JOSE S. RAMISCAL, JR., petitioner, vs. HONORABLE SANDIGANBAYAN
(Fourth Division), ALBANO & ASSOCIATES and the ASSOCIATION OF
GENERALS & FLAG OFFICERS,
INC., respondents.
D E C I S I O N CALLEJO, SR., J.:
This is a petition for review on certiorari under Rule 45 of the Revised
Rules of Court, of the Resolution of the Sandiganbayan, dated June 9,
1999 in Criminal Cases Nos. 25122 to 25145, and its Resolution dated
October 22, 1999, denying the motion for reconsideration thereof.
The Antecedents
The Armed Forces of the Philippines Retirement and Separation
Benefits System (AFP-RSBS) was established in December 1973 and
started its actual operations in 1976. Created under Presidential
Decree (P.D.) No. 361, as amended, the AFP-RSBS was designed to
establish a separate fund to guarantee continuous financial support to
the AFP military retirement system as provided for in Republic Act No.
340. Under the decree, the AFP-RSBS was to be funded from three
principal sources: (a) congressional appropriations and compulsory
contributions from members of the AFP; (2) donations, gifts, legacies,
bequests and others to the system; and (3) all earnings of the system
which shall not be subject to any tax whatsoever. AFP- RSBS is a
government-owned or controlled corporation (GOCC) under Rep. Act
No. 9182, otherwise known as The Special Purpose Vehicle Act of 2002.
It is administered by the Chief of Staff of the AFP through
a Board of Trustees and Management Group. Its funds are in the nature
of public funds.
On December 18, 1997, Luwalhati R. Antonino, then a member of the
House of Representatives representing the First District of the Province
of South Cotabato, filed a Complaint-Affidavit with the Office of the
Ombudsman for Mindanao. She alleged that anomalous real estate
transactions involving the Magsaysay Park at General Santos City and
questionable payments of transfer taxes prejudicial to the government
had been entertained into between certain parties. She then requested
the Ombudsman to investigate the petitioner, Retired Brig. Gen. Jose S.
Ramiscal, Jr., then President of the AFP-RSBS, together with twenty-
seven (27) other persons for conspiracy in misappropriating AFP-RSBS
funds and in defrauding the government millions of pesos in capital
gains and documentary stamp taxes.
On January 28, 1999, after the requisite preliminary investigation,
Special Prosecutor Joy C. Rubillar-Arao filed twenty- four (24) separate
Informations with the Sandiganbayan against the petitioner and several
other accused. The filing of the Informations was duly approved by then
Ombudsman Aniano A. Desierto. The first twelve (12) Informations
were for violation of Section 3(e) of Rep. Act No. 3019, otherwise
known as the Anti-Graft and Corrupt Practices Act, docketed as
Criminal Cases Nos. 25122 to 25133. All were similarly worded,
except for the names of the other accused, the dates of the commission
of the offense, and the property involved. Representative of the said
Informations is that filed in Criminal Case No. 25122, the inculpatory
portion of which reads:
That sometime on September 24, 1997, and prior, or subsequent
thereto, in General Santos City, Philippines, and within the jurisdiction
of this Honorable Court, accused JOSE RAMISCAL, JR., a high ranking
public official being then the President, and WILFREDO PABALAN, a low
ranking public officer being the Project Director,
both of the AFP-RSBS, while in the performance of their official duties,
taking advantage of their official positions and committing the offense
in relation to their offices, conspiring together and confederating with
NILO FLAVIANO and ALEX GUAYBAR, both private individuals, did, there
and then, willfully, unlawfully and criminally execute and/or cause the
execution of a falsified Deed of
Sale covering Lot-X-4, a real property located at General Santos City, by
making it appear therein that the purchase price of the said lot is only
TWO MILLION NINE HUNDRED NINETY-SEVEN THOUSAND
(P2,997,000.00) PESOS at P3,000.00 per square meter, when in
truth and in fact, as all the accused very well knew and, in fact,
agreed, that the same was sold for P10,500.00 per square meter or a
total of TEN MILLION FOUR HUNDRED EIGHTY-NINE THOUSAND FIVE
HUNDRED (P10,489,500.00) PESOS, and use the said falsified Deed of
Sale as basis for payment of capital gains and documentary stamp taxes
relative to the sale of the subject lot in the amount of only P299,700.00
and P89,910.00, respectively, when the capital gains, and documentary
stamp and other taxes should have
been P524,475.00 and P157,342.50, respectively, thereby short-
changing and causing undue injury to the government through evident
bad faith and manifest partiality in the total amount of TWO HUNDRED
NINETY-TWO THOUSAND TWO HUNDRED SEVEN and
50/100 PESOS (P292,207.50), more or less. CONTRARY TO LAW.
On the other hand, twelve (12) other separate Informations indicted the
accused for Falsification of Public Documents, defined and penalized
under paragraph 4, Article 171 of the Revised Penal Code, docketed
therein as Criminal Cases Nos. 25134 to 25145. Save with respect to the
names of the other accused, the dates of the commission of the
felonies, and the property involved in each case, the Informations were,
likewise, similarly worded, representative of
which is that in Criminal Case No. 25134. The accusatory portion reads:
That on or about September 24, 1997, and sometime prior, or
subsequent thereto, in General Santos City, Philippines, and within the
jurisdiction of this Honorable Court, accused JOSE RAMISCAL, JR., a
high-ranking public official being then the President, and WILFREDO
PABALAN, a low-ranking public officer being the Project Director, both
of the AFP-RSBS, while in the performance of their duties, taking
advantage of their official positions and committing the offense in
relation to their offices, conspiring and confederating with each other
and with accused NILO FLAVIANO and JACK GUIWAN, both private
individuals, acting with unfaithfulness and with malicious intent, did,
there and then, willfully, unlawfully and criminally falsify a public
document by executing and/or causing to be executed a Deed of Sale
for a 999-sq. m. property particularly identified as Lot-X-5 located at
General Santos City and stating therein a purchase price of only
P3,000.00 per square meter or a total of TWO MILLION NINE HUNDRED
NINETY-SEVEN THOUSAND (P2,997,000.00) PESOS when in truth and in
fact, as all the accused very well knew and, in fact, agreed, the purchase
price of said lot

is P10,500.00 per square meter or a total of TEN MILLION FOUR
HUNDRED EIGHTY-NINE THOUSAND FIVE HUNDRED (P10,489,500.00)
PESOS, thereby perverting the truth.
CONTRARY TO LAW.
On February 2, 1999, the petitioner filed an Urgent Motion to Dismiss
the Informations and to Defer the Issuance of Warrant of Arrest,
alleging want of jurisdiction. He, likewise, filed an Urgent Manifestation
and Motion to Suspend Proceedings on February 16,
1999, because of the pendency of his motion for reinvestigation with
the Office of the Ombudsman. The Office of the Special Prosecutor
opposed the said motions.
Meanwhile, pending resolution of the aforementioned motions, the law
firm of Albano & Associates filed a Notice of Appearance as private
prosecutors in all the aforementioned cases for the Association of
Generals and Flag Officers, Inc. (AGFOI) on March 9,
1999. The notice of appearance was apparently made conformably to
the letter-request of Retired Commodore Ismael Aparri and Retired
Brig. Gen. Pedro Navarro, who are members thereof.
In a Resolution dated April 5, 1999, the Sandiganbayan denied the
earlier motions filed by the petitioner for lack of merit. Consequently, a
warrant of arrest against him was issued. He posted a cash bail bond for
his provisional liberty.
On April 6, 1999, the petitioner opposed the appearance of the law firm
of Albano & Associates as private prosecutors, contending that the
charges brought against him were purely public crimes which did not
involve damage or injury to any private party; thus, no civil liability had
arisen. He argued that under Section 16 of the Rules of Criminal
Procedure, an offended party may be allowed to intervene through a
special prosecutor only in those cases where there is civil liability arising
from the criminal offense charged. He maintained that if the
prosecution were to be allowed to prove damages, the prosecution
would thereby be proving another crime, in violation of his
constitutional right to be informed of the nature of the charge against
him.
In its comment, the law firm contended that its clients, Commodore
Aparri and Brig. Gen. Navarro, were members of the AGFOI and
contributors of AFP-RSBS. It alleged that as such members-contributors,
they have been disadvantaged or deprived of their lawful investments
and residual interest at the AFP-RSBS through the criminal acts of the
petitioner and his cohorts. It posited that its clients, not having waived
the civil aspect of the cases involved, have all the right to intervene
pursuant to Section 16, Rule
110 of the Rules of Court. Moreover, the law firm averred that its
appearance was in collaboration with the Office of the Ombudsman,
and that their intervention in any event, was subject to the direction
and control of the Office of the Special Prosecutor.
Replying to the comment, the petitioner refuted the allegation of AGFOI
that he had civil interest in the criminal cases involved. He posited that
AGFOI was neither a member nor a beneficiary of the AFP-RSBS.
Moreover, considering that it was funded partly by the national
CRIMINAL PROCEDURE RULE 110
government and individual soldiers by way of salary deductions, the
AGFOI never contributed a single centavo to the funds of the AFP-RSBS.
He further averred that AGFOI, as an organization, has a distinct
personality of its own, apart from the individual members who compose
it.Hence, it is of no moment if some members of AGFOI are or have
been members and beneficiaries of the AFP-RSBS.
Meanwhile, on June 6, 1999, the petitioner filed a Motion for
Reinvestigation with the Sandiganbayan, mentioning therein his
unresolved motion for reconsideration with the Office of the
Ombudsman. He prayed that the proceeding be suspended and his
arraignment deferred pending the resolution of the reinvestigation.
The Sandiganbayan granted the motion in its Order dated June
11, 1999. The fallo of the said resolution reads:
WHEREFORE, the prosecution is given 60 days from today within which
to elevate its evidence and to do whatever is appropriate on the Motion
for Reconsideration dated February 12, 1999 and supplemental motion
thereof dated May 28, 1999 of accused Jose Ramiscal, Jr. and to inform
this Court within the said period as to its findings and recommendations
together with the action thereon of the Ombudsman.
As prayed for in open court by Pros. Monteroso, this authority from the
Court for the prosecution to evaluate its evidence and take such
appropriate action as regards accused Ramiscals subject motion shall
also include the case regarding all the accused.
SO ORDERED.
In the meantime, in a Resolution dated June 9, 1999, the
Sandiganbayan made short shrift of the petitioners opposition and
denied his plea for the denial of the appearance of the law firm. In
justifying its resolution, the Sandiganbayan declared as follows:
Considering that the offended parties are members of the AFP-
RSBS, as represented by the two (2) flag officers, and their right may be
affected by the action of the Court resolving the criminal and civil
aspects of the cases, there appears a strong legal presumption that
their appearance should not be disturbed. After all, their
appearance is subject to the direct supervision and control of the public
prosecutor.
The petitioner moved for a reconsideration of the Sandiganbayans
Resolution of June 9, 1999, which was opposed by the prosecution. The
Sandiganbayan issued a Resolution denying the same on October 22,
1999.
The petitioner filed the instant petition under Rule 45 of the Rules of
Civil Procedure, for the nullification of the June 9, 1999 and October 22,
1999 Resolutions of the graft court, and raised the following issues:
WHETHER OR NOT AGFOI AS REPRESENTED BY ALBANO & ASSOCIATES
ARE PRIVATE INJURED PARTIES ENTITLED TO INTERVENE AS THE
PRIVATE PROSECUTOR IN THE SUBJECT CASES.
In support of his petition, the petitioner reiterated the same arguments
he put forth before the Sandiganbayan.
The Special Prosecutor, for his part, avers that the remedy resorted to
by the petitioner under Rule 45 of the Rules of Civil Procedure was
improper since the assailed Resolutions of the Sandiganbayan are
interlocutory in nature and not final; hence, the remedy of the
petitioner was to file a petition for certiorari and prohibition under Rule
65 of the Rules of Court. He also argues that the petition is premature
because the reinvestigation of the cases had not yet been completed.
On the merits of the petition, he posits that the AGFOI is a member of
the AFP-RSBS, and that its rights may be affected by the outcome of the
cases. He further alleged that the appearance of the private prosecutor
was subject to the direct supervision and control of the public
prosecutor.
The petitioner, however, asserts, by way of reply, that the assailed
orders of the Sandiganbayan are final orders; hence, his recourse under
Rule 45 of the Rules of Civil Procedure was proper.
I
WHETHER OR NOT, BY NATURE, THE SUBJECT CRIMINAL INDICTMENTS
FOR VIOLATIONS OF SECTION 3(E), REPUBLIC ACT NO.
3019 AND ARTICLE 172, IN RELATION TO ARTICLE 171, OF THE REVISED
PENAL CODE GIVE RISE TO CIVIL LIABILITY IN FAVOR OF ANY PRIVATE
PARTY.
II
The Ruling of the Court
The Assailed Resolutions of the Sandiganbayan are Interlocutory in
Nature
The word interlocutory refers to something intervening between the
commencement and the end of a suit which decides some point or
matter but is not a final decision of the whole controversy. The Court
distinguished a final order or resolution from an interlocutory one in
Investments, Inc. v. Court of Appeals as follows:
A final judgment or order is one that finally disposes of a case, leaving
nothing more to be done by the Court in respect thereto, e.g., an
adjudication on the merits which, on the basis of the evidence
presented at the trial, declares categorically what the rights and
obligations of the parties are and which party is in the right; or a
judgment or order that dismisses an action on the ground, for instance,
of res adjudicata or prescription. Once rendered, the task of the Court is
ended, as far as deciding the
controversy or determining the rights and liabilities of the litigants is
concerned. Nothing more remains to be done by the Court except
to await the parties next move (which, among others, may consist
of the filing of a motion for new trial or reconsideration, or the taking of
an appeal) and ultimately, of course, to cause the execution of the
judgment once it becomes final or, to use the established and more
distinctive term, final and executory.
Conversely, an order that does not finally disposes of the case, and does
not end the Courts task of adjudicating the parties contentions and
determining their rights and liabilities as regards each other,
but obviously indicates that other things remain to be done by the
Court, is interlocutory, e.g., an order denying a motion to dismiss under

Rule 16 of the Rules, or granting a motion for extension of time to file a
pleading, or authorizing amendment thereof, or granting or denying
applications for postponement, or production
or inspection of documents or things, etc. Unlike a final judgment or
order, which is appealable, as above pointed out, an interlocutory order
may not be questioned on appeal except only as part of an appeal that
may eventually be taken from the final judgment rendered in this case.
The rule is founded on considerations of orderly procedure, to forestall
useless appeals and avoid undue inconvenience to the appealing party
by having to assail orders as they are promulgated by the court, when
all such orders may be contested in a single appeal.
Under Section 1, Rule 45 of the Rules of Court, only final judgments,
orders or resolutions of the Court of Appeals or Sandiganbayan may be
assailed therein. The remedy is a mode of appeal on questions of law
only.
In the present case, the Sandiganbayan merely resolved to allow the
appearance of the law firm of Albano & Associates as private
prosecutors, on its finding that the AGFOI, represented by Commodore
Aparri and Brig. Gen. Navarro who were, likewise, investors/members
of the AFP-RSBS, is the offended party whose rights may be affected by
the prosecution of the criminal and civil aspects of the cases and the
outcome thereof. Furthermore, the private prosecutor is subject to the
direct supervision and control of the public prosecutor. The
Sandiganbayan did not dispose of the cases on their merits, more
specifically, the guilt or innocence of the petitioner or the civil liabilities
attendant to the commission of the crimes charged. Assuming that the
Ombudsman would maintain the finding of probable cause against the
petitioner after the reinvestigation of the cases, and, thereafter, the
Sandiganbayan would sustain the finding of probable cause against the
petitioner and issue warrants for his arrest, the graft court would then
have to proceed to trial, receive the evidence of the parties and
render judgment on the basis thereof. The petitioner would then have
the following options: (a) to proceed to trial, and, if convicted, file a
petition for review under Rule 45 of the Rules of Court to this Court; or
(b) to file a petition for certiorari, under Rule 65 of the Rules of Court, to
nullify the resolutions of the Sandiganbayan on the ground of grave
abuse of discretion amounting to excess or lack of jurisdiction in issuing
the said resolutions and decision.
Nevertheless, in the interest of substantial justice, we shall treat the
petition as one filed under Rule 65 of the Rules of Court. Dismissal of
appeal purely on technical grounds is frowned upon where the policy of
the courts is to encourage hearings of appeal on their merits. The rules
of procedure ought not to be applied in a very rigid technical sense, as
they are used only to help secure, not override substantial justice. If a
technical and rigid enforcement of the rules is made, their aim would be
defeated. Consequently, in the interest of justice, the instant petition
for review may be treated as a special civil action on certiorari. As we
held in Salinas v. NLRC, a petition which should have been brought
under Rule 65 and not under Rule 45 of the Rules of Court, is not an
inflexible rule. The strict application of procedural technicalities should
not hinder the speedy disposition of the case on the merits.
Although there is no allegation in the petition at bar that the
Sandiganbayan committed grave abuse of its discretion amounting to
CRIMINAL PROCEDURE RULE 110
excess or lack of jurisdiction, nonetheless, the petitioner made the
following averments: that the graft court arbitrarily declared the AGFOI
to be the offended party despite the plain language of the Informations
and the nature of the crimes charged; and that the graft court blatantly
violated basic procedural rules, thereby eschewing the speedy and
orderly trial in the above cases. He, likewise, averred that the
Sandiganbayan had no authority to allow the entry of a party, through a
private prosecutor, which has no right to the civil liabilities of the
accused arising from the crimes charged, or where the accused has no
civil liabilities at all based on the nature of said crimes. The petitioner
also faulted the Sandiganbayan for rejecting his opposition thereto, in
gross violation of the Revised Rules of Criminal Procedure and the
Revised Penal Code. Indeed, such allegations are sufficient to qualify the
petition as one under Rule 65 of the Rules of Court. As we held in
People v. Court of Appeals:
The public respondent acts without jurisdiction if it does not have the
legal power to determine the case; there is excess of jurisdiction
where the respondent, being clothed with the power to determine the
case, oversteps its authority as determined by law. There is grave abuse
of discretion where the public respondent acts in a capricious,
whimsical, arbitrary or despotic manner in the exercise of its judgment
as to be said to be equivalent to lack of jurisdiction.
Besides, unless we resolve the present petition on its merits, other
parties, like the private respondents herein, may, likewise, enter their
appearance as offended parties and participate in criminal proceedings
before the Sandiganbayan.
The Appearance of the Law Firm Albano
& Associates
The respondent law firm entered its appearance as private prosecutor
for AGFOI, purportedly upon the request of Commodore Aparri and
Brig. Gen. Navarro, quoted infra:
Atty. Antonio Albano
Practicing Lawyer
Albano-Irao Law Offices
Dear Atty. Albano:
We represent a number of Retired Generals and other Star Rank
Officers who rightfully claim to have been disadvantaged or deprived of
our lawful investments and residual interest at the Retirement
Separation Benefit System, AFP because of alleged plunder of the
Systems Funds, Large Scale Estafa and Falsification of Public Documents.
We are requesting that you appear in our behalf as private prosecutor
of our case.
Thank you very much.
APARRI (RET) (RET)
(Sgd.) COMMO. ISMAEL D.
(Sgd.) BGEN. PEDRO I. NAVARRO
documentary stamp taxes. He contends that the Informations in
Criminal Cases Nos. 25134 to 25145, for falsification of public document
under paragraph 4, Article 171 of the Revised Penal Code, do not
contain any allegation that the AGFOI or any private party sustained
any damage caused by the said falsifications. The petitioner
further argues that absent any civil liability arising from the crimes
charged in favor of AGFOI, the latter cannot be considered the
As gleaned from the letter-request, the legal services of the respondent
law firm were not engaged by the AGFOI itself; it was Commodore
Aparri and Brig. Gen. Navarro who did so, for and in behalf of the other
retired generals and star rank officers claiming to have residual interests
in or to be investors of the AFP-RSBS, the vendee of the lots subject of
the Informations against the petitioner. Moreover, there is no showing
in the records that the Board of Directors of the AGFOI, authorized
them to engage the services of the respondent law firm to represent it
as private prosecutor in the above cases. Neither is there any resolution
on record issued by the Board of Directors of the AGFOI authorizing
Commodore Aparri and Brig. Gen. Navarro to secure the services of the
respondent law firm to represent it as the private prosecutor in said
cases. If at all, the respondent law firm is the counsel of Aparri and
Navarro only.
The AGFOI and/or Commodore Aparri and/or Brig. Gen. Navarro Are
Not the Offended Parties in the Informations filed Before the
Sandiganbayan
The petitioner avers that the crimes charged are public offenses and, by
their very nature, do not give rise to criminal liabilities in favor of any
private party. He asserts that, as gleaned from the Informations in
Criminal Cases Nos. 25122 to 25133 for violation of Section 3(e) of Rep.
Act No. 3019, the offended party is the government because based on
the deeds of sale executed in favor of the AFP-RSBS, as vendee, it was
deprived of capital gains and the offended party entitled to participate
in the proceedings before the
Sandiganbayan. According to the petitioner, this view conforms to
Section 16, Rule 110 of the Revised Rules of Criminal Procedure, which
reads:
SEC. 16. Intervention of the offended party in criminal action. Where
the civil action for recovery of civil liability is instituted in the criminal
action pursuant to Rule 111, the offended party may intervene by
counsel in the prosecution of the offense.
The petitioner posits that the AGFOI is not a member,
beneficiary or contributor of the AFP-RSBS, and that even if it were so, it
would not sustain a direct and material damage by an adverse outcome
of the cases. Allowing the AGFOI to intervene would open the
floodgates to any person similarly situated to intervene in the
proceedings and, thus, frustrate the speedy, efficient and
inexpensive disposition of the cases.
In his Comment, the Special Prosecutor avers that the AGFOI is entitled
to intervene in the proceedings in the Sandiganbayan because it is a
member of the AFP-RSBS, whose rights may be affected by the outcome
of the cases.
The AGFOI and the respondent law firm contend that the latter has a
right to intervene, considering that such intervention would enable the

members of AGFOI to assert their rights to information and access to
the official records, documents, and papers, a right granted by no less
than paragraph 7, Article IV of the 1987 Constitution. Furthermore,
the funds of the AFP-RSBS are impressed with public character because
the government provided for its initial funds, augmented from time to
time by the salary contributions of the incumbent AFP soldiers and
officers.
We agree with the contention of the petitioner that the AGFOI, and
even Commodore Aparri and Brig. Gen. Navarro, are not the offended
parties envisaged in Section 16, Rule 110, in relation to Section 1, Rule
111 of the Revised Rules of Criminal Procedure.
Under Section 5, Rule 110 of the Rules, all criminal actions covered
by a complaint or information shall be prosecuted under the direct
supervision and control of the public prosecutor. Thus, even if the
felonies or delictual acts of the accused result in damage or injury to
another, the civil action for the recovery of civil liability based on the
said criminal acts is impliedly instituted and the offended party has not
waived the civil action, reserved the right to institute it separately or
instituted the civil action prior to the criminal action, the prosecution of
the action inclusive of the civil action remains under the control and
supervision of the public prosecutor. The prosecution of offenses is a
public function. Under Section 16, Rule
110 of the Rules of Criminal Procedure, the offended party may
intervene in the criminal action personally or by counsel, who will act as
private prosecutor for the protection of his interests and in the interest
of the speedy and inexpensive administration of justice. A separate
action for the purpose would only prove to be costly, burdensome and
time-consuming for both parties and further delay the final disposition
of the case. The multiplicity of suits must be avoided. With the implied
institution of the civil action in the criminal action, the two actions are
merged into one composite proceeding, with the criminal action
predominating the civil. The prime purpose of the criminal action is to
punish the offender in order to deter him and others from committing
the same or similar offense, to isolate him from society, reform and
rehabilitate him or, in general, to maintain social order.
On the other hand, the sole purpose of the civil action is for the
resolution, reparation or indemnification of the private offended party
for the damage or injury he sustained by reason of the delictual or
felonious act of the accused. Under Article 104 of the Revised Penal
Code, the following are the civil liabilities of the accused:
ART. 104. What is included in civil liability. The civil liability established
in Articles 100, 101, 102 and 103 of this Code includes:
1. Restitution;
2. Reparation of the damage caused;
3. Indemnification for consequential damages.
Thus, when the offended party, through counsel, has asserted his right
to intervene in the proceedings, it is error to consider his appearance
merely as a matter of tolerance.
The offended party may be the State or any of its instrumentalities,
including local governments or government- owned or controlled
corporations, such as the AFP-RSBS, which, under substantive laws,
CRIMINAL PROCEDURE RULE 110
are entitled to restitution of their properties or funds, reparation, or solemnly proclaimed. The offender does not, in any way, have civil
indemnification. For instance, in malversation of public funds or liability to a third person.
property under Article 217 of the Revised Penal Code, frauds under
Article 213 of the Revised Penal Code, and violations of the Forestry However, if, in a deed of sale, the real property covered thereby is
Code of the Philippines, P.D. No. underpriced by a public officer and his co-conspirators to conceal the
705, as amended, to mention a few, the government is the offended correct amount of capital gains and documentary stamp taxes due on
party entitled to the civil liabilities of the accused. For violations of the sale causing undue injury to the government, the offenders thereby
Section 3(e) of Rep. Act No. 3019, any party, including the commit two crimes (a) falsification of public document defined in
government, may be the offended party if such party sustains undue paragraph 4, Article 171 of the Revised Penal Code; and (b) violation of
injury caused by the delictual acts of the accused. In such cases, the Section 3(e) of Rep. Act No. 3019, a special penal law. The offender
government is to be represented by the public prosecutor for the incurs civil liability to the government as the offended party for
recovery of the civil liability of the accused. violation of Section 3(e) of Rep. Act No. 3019, but not for falsification of
public document under paragraph 4, Article
Under Section 16, Rule 110 of the Revised Rules of Criminal Procedure, 171 of the Revised Penal Code.
the offended party may also be a private individual whose person, right,
house, liberty or property was actually or directly injured by the On the other hand, if, under the deed of sale, the AFP-RSBS was made
same punishable act or omission of the accused, or that corporate liable for the payment of the capital gains and documentary stamp
entity which is damaged or injured by the delictual acts complained of. taxes and, thereafter, gave the correct amount thereof to the petitioner
Such party must be one who has a legal right; a substantial interest in to be paid to the government, and the petitioner and his co-accused
the subject matter of the action as will entitle him to recourse under pocketed the difference between the correct amount of taxes and the
the substantive law, to recourse if the evidence is sufficient or that he amount entrusted for payment, then the AFP-RSBS may be considered
has the legal right to the demand and the accused will be protected by the offended party entitled to intervene in the above criminal cases,
the satisfaction of his civil liabilities. Such interest must not be a mere through the Government Corporate Counsel.
expectancy, subordinate or inconsequential. The interest of the party
must be personal; and not one based on a desire to vindicate the In fine, the AGFOI is not the offended party entitled to intervene in said
constitutional right of some third and unrelated party. cases.
Hence, even if the members of AGFOI may also be members or IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The assailed
beneficiaries of the AFP-RSBS, the respondent AGFOI does not have a Resolutions of the Sandiganbayan are REVERSED and SET ASIDE. No
legal right to intervene in the criminal cases merely and solely to costs.
enforce and/or protect the constitutional right of such members to
have access to the records of AFP-RSBS. Neither are such members SO ORDERED.
entitled to intervene therein simply because the funds of the AFP- RSBS
are public or government funds. It must be stressed that any interest of
the members of the AFP-RSBS over its funds or property is merely
inchoate and incidental. Such funds belong to the AFP-RSBS which has a
juridical personality separate and independent of its
members/beneficiaries.
As gleaned from the Informations in Criminal Cases Nos. 25122 to
25133 for violation of Section 3(e) of Rep. Act No. 3019, the offended
party is the government, which was allegedly deprived by the petitioner
and the other accused of the capital gains and documentary stamp
taxes, based on the actual and correct purchase price of the property
stated therein in favor of the AFP-RSBS. The AGFOI was not involved
whatsoever in the sales subject of the crimes charged; neither was it
prejudiced by the said transactions, nor is it entitled to the civil liability
of the petitioner for said cases. Thus, it is not the offended party in the
said cases.
We agree with the petitioner that the AGFOI is not even the offended
party in Criminal Cases Nos. 25134 to 25145 for falsification of public
documents under paragraph 4, Sec. 1, Article 171, of the Revised Penal
Code. It bears stressing that in the felony of falsification of public
document, the existence of any prejudice caused to third person or the
intent to cause damage, at the very least, becomes immaterial. The
controlling consideration is the public character of a document and the
violation of the public faith and the destruction of truth therein