Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 110436 June 27, 1994

ROMAN A. CRUZ, JR., petitioner,

vs.
PEOPLE OF THE PHILIPPINES, THE SANDIGANBAYAN (First Division), and OFFICE OF THE
OMBUDSMAN,respondents.

Siguion Reyna, Montecillo & Ongsianlo for petitioner.

The Solicitor Generalfor the People of the Philippines.

REGALADO, J.:

The present original action for certiorari, prohibition and mandamus seeks the reversal of the Orders issued by
respondent Sandiganbayan in Criminal Case No. 14252, dated February 17, 1993 1 and May 12, 1993, 2 denying
petitioners Omnibus Motion and Motion for Reconsideration, respectively.

The facts are summarized in the Memorandum of public respondents as follows:

1. The Government Service Insurance System (the GSIS, for short) filed two separate criminal
complaints against petitioner Roman A. Cruz, Jr., a former public official who used to be the
President and General Manager of the GSIS and, also, the President of the Manila Hotel, for
violation of Section 3(e) of Republic Act No. 3019, as amended. The first complaint against petitioner
was filed with the Office of the Special Prosecutor (the OSP, for short) and docketed as OSP-88-
02028 while the second, which involved the same set of facts, was filed with the Presidential
Commission on Good Government (the PCGG, for short) but which was later endorsed to the Office
of the Ombudsman and docketed as OMB-0-91-0986. . . .

2. A preliminary investigation was conducted by the PCGG where petitioner duly submitted his
counter-affidavit. As a consequence of said investigation, an Information was filed with the first
Division of the Sandiganbayan, docketed as Criminal Case No. 14134, charging petitioner with
violation of Section 3(e) of Republic Act No. 3019. . . .

3. During the proceedings before the OSP, petitioner moved to dismiss the complaint. The OSP,
however, denied the motion and filed with the Third Division of the Sandiganbayan an Information
charging petitioner with Estafa through Falsification of Public Documents (Articles 171 and 315 of
the Revised Penal Code), docketed as Criminal Case No. 14252. Petitioner was deemed by the
OSP to have waived his right to submit a counter-affidavit and supporting evidence. . . .

4. As a result of the filing of two informations with respondent Sandiganbayan involving the same
accused (herein petitioner) and the same set of facts, Criminal Case No. 14252 was consolidated
with Criminal Case No. 14134 which was pending before the First Division of respondent
Sandiganbayan. . . .

5. Respondent Sandiganbayan, however, remanded the consolidated cases against petitioner to the
Office of the Ombudsman for reinvestigation inasmuch as:
 a) the Information in Criminal Case No. 14134 was ordered dismissed in compliance with the ruling
of the Supreme Court in Cojuangco, Jr. vs. PCGG, et al., G.R. Nos. 92319-20, October 2, 1990,
which declared null and void the preliminary investigations conducted by the PCGG in all criminal
cases involving matters which were the subject matter of civil cases earlier filed; and

b) the Information in Criminal Case No. 14252 was correctly assailed by petitioner as having been
filed without the proper preliminary investigation. . . .

6. During the preliminary investigation conducted anew by the Office of the Ombudsman, petitioner
submitted his counter-affidavit and supporting documents. After the completion of said investigation,
Prosecutor Leonardo P. Tamayo of the Office of the Ombudsman prepared a Resolution dated
February 11, 1992, which recommended the withdrawal of the Information in Criminal Case No.
14252. . . .

7. Respondent Ombudsman, however, despite the above recommendation of the investigating

prosecutor ordered the prosecution to proceed under the existing Information in Criminal Case No.
14252 on his observation, viz:

Let us not do the defending for the accused. The explanations offered are too
strained to be believed. At best they are matters of defense for the accused to prove
at the trial.

The alleged character of the funds involved being confidential and requires no
auditing is totally immaterial. It could even explain why this anomaly was committed. .
..

8. Petitioner thus filed with respondent Sandiganbayan (First Division) an Omnibus Motion to Quash
the Information, dated September 17, 1992, wherein he prayed ". . . for the production of (the) record
of the preliminary investigation), and that the information be quashed outright or the disapproval of
the Ombudsman set aside, or in the alternative, that the Office of the Ombudsman be ordered to
conduct further proceedings, particularly the handwriting analysis prayed for by the petitioner which
would establish who committed the alleged falsification. . . .

On February 17, 1993, respondent Sandiganbayan promulgated a Resolution dated February 15,
1993, the dispositive portion of which reads:

WHEREFORE, the Omnibus Motion of accused Roman A. Cruz, Jr. is DENIED for
lack of merit. . . .

10. A Motion for Reconsideration, dated April 12, 1993, of the aforequoted Resolution was filed by
petitioner . . . .

11. On May 12, 1993, respondent Sandiganbayan promulgated a Resolution, the dispositive portion
of which reads:

WHEREFORE, the Motion for Reconsideration of accused Roman A. Cruz, Jr. of this Courts
Resolution dated February 17, 1993 is DENIED for lack of merit. . . .

12. Hence, petitioner filed the instant petition. 3

Petitioner contends that respondent Sandiganbayan committed a grave abuse of discretion:

1. In not dismissing the information considering that the Ombudsmans approval of the order
dismissing the complaint did not state the factual or legal basis therefor;

2. In not requiring the production of the record of the preliminary investigation in wanton disregard of
petitioners right to due process;
 3. In not dismissing the information considering that, as found by the investigating prosecutor, the
money received by petitioner was a cash advance; and

4. In not requiring the Office of the Ombudsman to conduct further proceedings.

We do not find the instant petition to be impressed with merit as to warrant the extraordinary writs prayed for.

The information filed against herein petitioner charging him with estafa through falsification of public documents and
for which he stands to be tried before respondent court alleges:

That on or about or during the period from March 26, 1984 to May 11, 1984, or sometime prior or
subsequent thereto, at the City of Manila, Philippines, and within the jurisdiction of this Honorable
Court, Roman Cruz, Jr., then President and General Manager of the Government Service Insurance
System (GSIS) and likewise President of the Manila Hotel, hence a public official having been duly
appointed/elected and qualified as such, taking advantage of his position, by means of deceit,
committing an offense in relation to his office, did then and there wilfully, unlawfully and feloniously
falsify Manila Hotel Invoices, Transportation, Charge, Cash, Budget for Food and Drinks vouchers in
the aggregate amount of P350,000.00 and then make it appear that the GSIS management and staff
had a five-day coordination meeting at the Manila Hotel from March 23 to 30, 1984 at the cost of
P350,000.00, for which reason the GSIS paid/issued its check with No. 039511 dated May 11, 1984
in the amount of P350,000.00 which check was deposited to the account of the Manila Hotel, and
thereafter cause the Manila Hotel to issue its check with No. 007272 dated May 11, 1984 in the
amount of P350,000.00 payable to Roman Cruz, Jr. or himself, when in truth and in fact, as the
accused well knew that there was no such five-day GSIS management and staff coordination
meeting conducted/held at the Manila Hotel; and further thereafter convert and appropriate to his
own personal use and benefit/deposit the said check to his own personal account with the Far East
Bank and Trust Co. the said check/amount of P350,000.00 to the damage and prejudice of the GSIS
and/or Manila Hotel and/or the government in the said amount of P350,000.00. 4

I. Petitioner initially submits that respondent Sandiganbayan acted with grave abuse of discretion in not dismissing
the information considering that the Ombudsmans disapproval of the order dismissing the complaint did not state
the factual or legal basis therefor, in violation of the cardinal rules set forth in Ang Tibay, et al. vs. CIR, et al. 5 The
submission is premised on the theory that said rules apply to a preliminary investigation which is to be considered quasi-
judicial in nature. Petitioner avers that it is the duty of the Ombudsman to assess the evidence and defenses of the
respondent in deciding a case, a failure wherein constitutes a violation of ones right to due process of law. He further
claims that "while the duty to deliberate does not impose the obligation to decide right, it does imply a necessity which
cannot be disregarded, namely, that of having something to support the decision. The Ombudsman in this case not only
failed to decide right but has nothing at all to support his decision." 6

Respondents, on the other hand, aver that the Office of the Ombudsman is not exercising quasi-judicial or quasi-
legislative powers because "it does not act as a court" when it conducts preliminary investigation of cases falling
under its jurisdiction.

It is settled that the conduct of a preliminary investigation, which is defined as "an inquiry or proceeding for the
purpose of determining whether there is sufficient ground to engender a well-founded belief that a crime cognizable
by the Regional Trial Court has been committed and that the respondent is probably guilty thereof, and should be
held for trial," 7 is, like court proceedings, subject to the requirements of both substantive and procedural due process.
This is because, a preliminary investigation is considered as a judicial proceeding wherein the prosecutor or investigating
officer, by the nature of his functions, acts as a quasi-judicial officer. As we held in Cojuangco, Jr. vs. PCGG, et al.: 8

. . . It must be undertaken in accordance with the procedure provided in Section 3, Rule 112 of the
1985 Rules of Criminal Procedure. This procedure is to be observed in order to assure that a person
undergoing such preliminary investigation will be afforded due process.

As correctly pointed out by petitioner, an indispensable requisite of due process is that the person
who presides and decides over a proceeding, including a preliminary investigation, must possess the
cold neutrality of an impartial judge.
 Although such a preliminary investigation is not a trial and is not intended to usurp the function of the
trial court, it is not a casual affair. The officer conducting the same investigates or inquires into the
facts concerning the commission of the crime with the end in view of determining whether or not an
information may be prepared against the accused. Indeed, a preliminary investigation is in effect a
realistic judicial appraisal of the merits of the case. Sufficient proof of the guilt of the accused must
be adduced so that when the case is tried, the trial court may not be bound as a matter of law to
order an acquittal. A preliminary investigation has then been called a judicial inquiry. It is a judicial
proceeding. An act becomes judicial when there is opportunity to be heard and for the production
and weighing of evidence, and a decision is rendered thereon.

The authority of a prosecutor or investigating officer duly empowered to preside or to conduct a

preliminary investigation is no less than that of a municipal judge or even a regional trial court judge.
While the investigating officer, strictly speaking is not a "judge," by the nature of his functions he is
and must be considered to be a quasi-judicial officer.

In the present case, petitioner asserts that his right to due process was violated in that respondent Ombudsman
failed to assess and consider the evidence presented by petitioner in disapproving the recommendation for
dismissal of the case by the investigating prosecutor, and his ruling is not supported by the evidence on record. The
argument is specious.

His submission that he was deprived of his right to due process hinges on the erroneous assumption that the order
of the Ombudsman for the filing of the necessary information is lacking in any factual or legal basis. Such a
conclusion, however, stems from the fact that said order did not entail a discussion of the rationale for the
Ombudsmans action.

It may seem that the ratio decidendi for the Ombudsmans order may be wanting but this is not a case of a total
absence of factual and legal bases nor a failure to appreciate the evidence presented. What is actually involved
here is merely a review of the conclusion arrived at by the investigating prosecutor as a result of his study and
analysis of the complaint, counter-affidavits, and the evidence submitted by the parties during the preliminary
investigation. The Ombudsman here is not conducting anew another investigation but is merely determining the
propriety and correctness of the recommendation given by the investigating prosecutor, that is, whether probable
cause actually exists or not, on the basis of the findings of fact of the latter. Verily, it is discretionary upon the
Ombudsman if he will rely mainly on the findings of fact of the investigating prosecutor in making a review of the
latters report and recommendation, as the Ombudsman can very well make his own findings of fact. There is
nothing to prevent him from acting one way or the other. As a matter of fact, Section 4, Rule 112 of the Rules of
Court provides that "where the investigating assistant fiscal recommends the dismissal of the case but his findings
are reversed by the provincial or city fiscal or the chief state prosecutor on the ground that a probable cause exists,
the latter may, by himself, file the corresponding information against the respondent or direct any other assistant
fiscal or state prosecutor to do so, without conducting another preliminary investigation. 9

With more reason may the Ombudsman not be faulted in arriving at a conclusion different from that of the
investigating prosecutor on the basis of the same set of facts. It cannot be said that the Ombudsman committed a
grave abuse of discretion simply because he opines contrarily to the prosecutor that, under the facts obtaining in the
case, there is probable cause to believe that herein petitioner is guilty of the offense charged.

As aptly pointed out by respondent court in its resolution denying petitioners motion for reconsideration, "to the
Ombudsman, the narration of facts by Prosecutor Tamayo, . . . demonstrated adequate cause to prosecute the
accused Cruz." 10 Furthermore, public respondents, in their Memorandum, correctly observed that "(f)rom the tenor of
respondent Ombudsmans statement, it is clear that he agreed with the findings of facts of the investigating prosecutor
but disagreed with the latters conclusion on the import and significance of said findings. On the basis of the findings of
facts of the investigating prosecutor, which were not disputed by petitioner, respondent Ombudsman believed that there
was sufficient ground to engender a well-founded belief that a crime had been committed and that petitioner is probably
guilty thereof." 11

Petitioner argues that the indication of disapproval by the Ombudsman which consists merely of two paragraphs
fails to point out the issues and relevant facts and is consequently whimsical, capricious and arbitrary. Such
proposition is fallacious. The mere fact that the order to file an information against petitioner consists only of two
paragraphs is not sufficient to impute arbitariness or caprice on the part of the Ombudsman, absent a clear showing
that he gravely abused his discretion in disapproving the recommendation of the investigating prosecutor. Neither is
it tainted with vindictiveness or oppression. He disapproved the recommendation of the special prosecutor because
he sincerely believed that there is sufficient evidence to indict the accused. This is an exercise of the Ombudsmans
power based upon constitutional mandate, and the courts should not interfere in such exercise.

The rule is based not only upon the investigatory and prosecutory powers granted by the Constitution to the Office
of the Ombudsman but upon practicality as well. Otherwise, the functions of the courts will be grievously hampered
by innumerable petitions assailing the dismissal of investigatory proceedings conducted by the Office of the
Ombudsman with regard to complaints filed before it, in much the same way that the courts would be extremely
swamped if they could be compelled to review the exercise of discretion on the part of the prosecuting attorneys
each time they decide to file an information in court or dismiss a complaint by a private complaint. 12

II. Petitioner next avers that the error of respondent court in not requiring the production of the record of the
preliminary investigation is two-fold. First, it was in violation of the constitutional right against arbitrary arrests
because probable cause was not "personally determined by the judge," considering that the records of the
preliminary investigation were not elevated to the judge for examination. Second, it was in violation of petitioners
right to due process of law since he was deprived of the opportunity to examine the evidence against him and
prepare his defense.

On the first issue, petitioner relies on the ruling in Lim, Sr., et al. vs. Felix, et al. 13 which held that

If a judge relies entirely on the certification of the prosecutor as in this case where all the records of
the investigation are in Masbate, he or she has not personally determined probable cause. The
determination is made by the Provincial Prosecutor. The constitutional requirement has not been
satisfied. The judge commits a grave abuse of discretion.

The conduct of a preliminary investigation should be distinguished as to whether it is an investigation for the
determination of a sufficient ground for the filing of the information or one for the determination of a probable cause
for the issuance of a warrant of arrest. The first aspect of preliminary investigation is executive in nature. It is part of
the prosecutions job. The second kind of preliminary investigation, which is more properly called preliminary
examination, is judicial in nature and is lodged with the judge. 14

For the latter, in the exercise of the exclusive and personal responsibility of the issuing judge to satisfy 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. 15

Coming now to the case at bar, contrary to petitioners thesis, respondent court, in its resolution promulgated on
February 17, 1993 denying petitioners motion to quash the information, found the existence of probable cause after
making a deliberate and exhaustive review of the facts obtaining in the case. Thus:

All of the above logical process, which is supported both by the finding of fact in the Resolution and
by admissions in the Motion of the accused, lead to the conclusion that probable cause exists
against accused Roman Cruz, Jr., for acts described in the Information in the instant case.

The narration of facts culled from the record (as affirmed by both parties) support the narration of
facts in the Information. The superficial analysis of the admissions made above indicate that the
elements of Article 315 of the Revised Penal Code as well as of Articles 171 and 172 thereof may
probably be established.

It is true that the Manila Hotel eventually treated the P350,000.00 as a "cash advance" to him.
Accused Cruz, however, does not claim that there were cash advances made by him as a
consequence of which he received this sum. Nor has accused Roman Cruz said that he had
obtained a loan or cash advance from the Manila Hotel for a particular purpose for which he was
expected to subsequently render an accounting. All that Manila Hotels subsequent description of
 this amount as a "cash advance," in fact, says is that when it turned out that P350,000.00 could not
be properly accounted for, it had to be treated as an amount which accused Cruz had to pay back;
thus, accountingwise, a cash advance.

For accused to have received such a large amount from a company of which he was the President
required him to sign a receipt which would specify clearly what he was receiving it for. If he received
the sum as a cash advance for some future expense, the Manila Hotel documents would clearly so
demonstrate. If he received it as a cash advance (against his salaries or other benefits), it would
appear as a loan in Manila Hotels books. Accused Cruz, however, has said no such thing in any of
his pleadings nor apparently has he so stated during the preliminary investigation.

In other words, accused Cruz as President of the Manila Hotel and, therefore, in a position of
great fiduciary nature received P350,000.00 in 1984 either for a non-existent reason or for a false
reason.

He may have an explanation. As of this time, however, if the evidence on record is actually
presented at trial, enough evidence would exist to put accused Roman A. Cruz, Jr. at peril of his
liberty and would require him to explain his side of the matter.

A case has, therefore, been demonstrated in the record and in the averment of accused Cruz
himself that the crime charged has probably been committed and that the accused is probably guilty
thereof.(Emphasis supplied.) 16

Petitioner would have respondent court order the production of the records of the preliminary investigation in its
determination of the existence of probable cause for the issuance of the warrant of arrest. First and foremost, as
hereinabove stated, in a preliminary examination for the issuance of a warrant of arrest, the court is not tasked to
review in detail the evidence submitted during the preliminary investigation. It is sufficient that the judge personally
evaluates the report and supporting documents submitted by the prosecution in determining probable cause. 17This
is precisely what respondent court did. In resolving the issue of probable cause, respondent court made an in-depth
analysis of the findings of fact of Prosecutor Tamayo, as well as the Omnibus Motion submitted by petitioner. The
correctness of these facts was not even questioned by herein petitioner but, on the contrary was expressly affirmed in the
latters Omnibus Motion dated September 17, 1992 wherein it was stated that "(t)he Order issued by the investigating
prosecutor . . . contains a lucid narration of the relevant facts."

The case of Lim cited by petitioner is not applicable to the present case because, in the former, a warrant of arrest
was issued by the respondent judge therein without conducting his own personal evaluation of the case even if only
on the basis of the report submitted by the fiscal. Instead, the respondent therein simply declared: "Considering that
both the two competent officers to whom such duty was entrusted by law have declared the existence of probable
cause, each information is complete in form and substance, and there is no visible defect on its face, this Court finds
it just and proper to rely on the prosecutors certification in each information . . . . This is far from what actually
transpired before the Sandiganbayan as reflected by the records in this case. Hence, the ruling in Lim cannot be
properly invoked.

As to the second issue, petitioner relies on the provisions of Section 8, Rule 112 of the 1985 Rules on Criminal
Procedure, to wit:

Sec. 8. Record of preliminary investigation. The record of the preliminary investigation whether
conducted by a judge or a fiscal, shall not form part of the record of the case in the Regional Trial
Court. However, the said court, on its own initiative or that of any party, may order the production of
the record or any part thereof whenever the same shall be necessary in the resolution of the case or
any incident therein, or shall be introduced as evidence by the party requesting for its production.

Petitioners prayer for the production of the record is intended not only for proper observance of the constitutional
requirement that probable cause be determined personally by the judge, but also to enable him to examine the
evidence and prepare his defenses and for trial.
Public respondents contend that the production of the record of the preliminary examination is not necessary since
petitioner can always resort to any of the modes of discovery available to an accused under the Rules of Court,
specifically citing Section 11 of Rule 116, which provides:

Sec. 11. Production or inspection of material evidence in possession of prosecution. On motion of

the accused showing good cause and with notice to all parties, the court, in order to prevent
surprise, suppression, or alteration, may order the prosecution to produce and permit the inspection
and copying or photographing, of any written statements given by the complainant and other
witnesses in any investigation of the offense conducted by the prosecution or any other investigating
officers, as well as of any designated documents, papers, books, accounts, letters, photographs,
objects or tangible things, not otherwise privileged, which constitute or contain evidence material to
any matter involved in the case, and which are in the possession or under the control of the
prosecution, the police, or any other law investigating agencies.

This rule refers to the right of the accused to move for production or inspection of material evidence in the
possession of the prosecution. It authorizes the defense to inspect, copy or photograph any evidence of the
prosecution in its possession after obtaining the permission of the court. A motion showing good reasons for the
granting of the permission must be filed by the defense for this purpose, with notice to all parties. 18

It will be noted at the outset that precisely, as suggested by public respondents, herein petitioner, in asking for the
production of the records of the preliminary investigation in order to enable him to prepare for his defense and for
trial, is actually trying to avail of this mode of discovery. There was good cause shown for the motion to produce the
records, that is, so that they may be introduced as evidence by the party requesting for their production, which is
one of the grounds provided for under Section 8, Rule 112 of the Rules of Court.

It is true that the granting of permission lies within the discretion of the court. However, respondent court in this case
has failed to sufficiently justify its refusal to have the records of the preliminary investigation produced before it so
that petitioner may use them for his defense, either in its resolutions denying petitioners Omnibus Motion and
Motion for Reconsideration, or in the pleadings and Memorandum filed by herein respondents before this Court.
Consequently, we find no reason to deny petitioner the right to avail of such mode of discovery. If only for the reason
that petitioner should be given the opportunity to inspect the evidence presented during the preliminary investigation
solely for the purpose of enabling him to prepare for his defense and for trial, this questioned resolution of
respondent Sandiganbayan should be modified.

III. It is likewise contended that respondent court abused its discretion in not dismissing the information considering
that, as found by the investigating prosecutor, the money received by petitioner was a cash advance for which he
can only be held civilly liable, but which civil liability has already been extinguished. Citing the case of Yong Chan
Kim vs. People, et al., 19 which held that a cash advance is in the form of a loan and, therefore, there can be no estafa
committed, petitioner argues that he only incurred civil liability for the cash advance he obtained from the Manila Hotel.
However, he contends that such liability had allegedly been extinguished when his leave credits and other benefits were
withheld, the total of which was more than sufficient to liquidate the advance made.

Also, it is argued that petitioner was denied due process when respondent court failed to remand the case to the
Ombudsman for further proceedings for the purpose of determining the persons who actually forged the questioned
documents by conducting a handwriting analysis. This would have secured him from hasty and malicious
prosecution, and would even have led to the discovery of the true culprit, if indeed documents had been fabricated.

It must here be stressed that 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 prosecutor to prepare his
complaint or information. It is not a trial of the case on the merits and has no purpose except that of determining
whether a crime has been committed and whether there is probable cause to believe that the accused is guilty
thereof, and it does not place the persons against whom it is taken in jeopardy. 20

The established rule is that a preliminary investigation is not the occasion for the full and exhaustive display of the
parties evidence; it is for the presentation of such evidence only as may engender a well-grounded belief that an
offense has been committed and that the accused is probably guilty thereof. 21
Conformably therewith, the arguments raised by herein petitioner that the cash advance is actually in the form of a
loan and therefore no criminal liability attaches, and that respondent court should have remanded the case for
further investigation to determine the true identity of the forgers, are all matters of defense which are best presented
during the trial before respondent court for its consideration.

The main function of the government prosecutor during the preliminary investigation is merely to determine the
existence of probable cause, and to file the corresponding information if he finds it to be so. And, probable cause
has been defined as the existence of such facts and circumstances as would excite the belief, in a reasonable mind,
acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which
he was prosecuted. 22

In the case at bar, the Ombudsman found that there was sufficient ground to believe that petitioner is guilty of the
crime charged on the basis of the factual findings of Prosecutor Tamayo in the latters Order dated February 11,
1992 which were arrived at after taking into consideration the evidence presented by the parties. A cursory perusal
of the records of this case will show that the findings of fact by the Office of the Ombudsman are supported by
substantial evidence, hence the same should be considered conclusive. 23

Furthermore, the Ombudsmans findings are essentially factual in nature. Accordingly, in assailing said findings on
the contention that the Ombudsman committed a grave abuse of discretion in holding that petitioner is liable for
estafa through falsification of public documents, petitioner is clearly raising questions of fact here. 24 His arguments
are anchored on the propriety of or error in the Ombudsmans appreciation of facts. Petitioner cannot be unaware that the
Supreme Court is not a trier of facts, more so in the consideration of the extraordinary writ of certiorari where neither
questions of fact nor even of law are entertained, but only questions of lack or excess of jurisdiction or grave abuse of
discretion. 25 Insofar as this third issue is concerned, therefore, we find that no grave abuse of discretion has been
committed by respondents which would warrant the granting of the writ of certiorari.

WHEREFORE, the resolutions appealed from are hereby AFFIRMED, with the modification that respondent
Ombudsman is DIRECTED to produce the pertinent records of the preliminary investigation before the
Sandiganbayan at the proper juncture of the proceedings therein and on sufficient justification therefor.

SO ORDERED.

Narvasa, C.J., Padilla, Puno and Mendoza, JJ., concur.

G.R. No. 197293 April 21, 2014

ALFREDO C. MENDOZA, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES AND JUNO CARS, INC., Respondents.

DECISION

LEONEN, J.:

While the determination of probable cause to charge a person of a crime is the sole function of the. prosecutor, the
trial court may, in the protection of one's fundamental right to liberty, dismiss the case if, upon a personal
assessment of the evidence, it finds that the evidence does not establish probable cause.

This is a petition for review on certiorari1 assailing the Court of Appeals' decision2 dated January 14, 2011, which
reversed the Regional Trial Court's dismissal of the complaint against petitioner Alfredo C. Mendoza for qualified
theft and estafa.

This case stems from a complaint-affidavit filed by Juno Cars, Inc. through its representative, Raul C. Evangelista,
on January 8, 2008 for qualified theft and estafa against Alfredo.3
In the complaint-affidavit, Juno Cars alleged that on June 2, 2007, it hired Alfredo as Trade-In/Used Car Supervisor.
On November 19, 2007, its Dealer/Operator, Rolando Garcia, conducted a partial audit of the used cars and
discovered that five (5) cars had been sold and released by Alfredo without Rolandos or the finance managers
permission.4

The partial audit showed that the buyers of the five cars made payments, but Alfredo failed to remit the payments
totalling P886,000.00. It was further alleged that while there were 20 cars under Alfredos custody, only 18 were
accounted for. Further investigation revealed that Alfredo failed to turn over the files of a 2001 Hyundai Starex and a
Honda City 1.5 LXI. Juno Cars alleged that taking into account the unremitted amounts and the acquisition cost of
the Honda City, Alfredo pilfered a total amount of P1,046,000.00 to its prejudice and damage.5

In his counter-affidavit, Alfredo raised, among others, Juno Cars supposed failure to prove ownership over the five
(5) cars or its right to possess them with the purported unremitted payments. Hence, it could not have suffered
damage.6

On March 4, 2008, Provincial Prosecutor Rey F. Delgado issued a Resolution7 finding probable cause and
recommending the filing of an information against Alfredo for qualified theft and estafa.

Alfredo moved for reconsideration, but the motion was denied.8 He then filed a petition for review with the
Department of Justice on May 16, 2008.9

While Alfredos motion for reconsideration was still pending before the Office of the City Prosecutor of Mandaluyong,
two informations for qualified theft10 and estafa11 were filed before the Regional Trial Court, Branch 212,
Mandaluyong City. On March 31, 2008, Alfredo filed a motion for determination of probable cause12 before the trial
court. On April 28, 2008, he also filed a motion to defer arraignment.

Several clarificatory hearings were scheduled but were not conducted.13 On February 4, 2009, the parties agreed to
submit all pending incidents, including the clarificatory hearing, for resolution.14

On March 3, 2009, the trial court, through Presiding Judge Rizalina Capco-Umali, issued an order15 dismissing the
complaint, stating that:

After conducting an independent assessment of the evidence on record which includes the assailed Resolution
dated 04 March 2008, the court holds that the evidence adduced does not support a finding of probable cause for
the offenses of qualified theft and estafa. x x x.16

Juno Cars filed a motion for reconsideration, which the trial court denied on July 3, 2009.17

Juno Cars then filed a petition for certiorari with the Court of Appeals, arguing that the trial court acted without or in
excess of its jurisdiction and with grave abuse of discretion when it dismissed the complaint. It argued that "the
determination of probable cause and the decision whether or not to file a criminal case in court, rightfully belongs to
the public prosecutor."18

On January 14, 2011, the Court of Appeals rendered a decision,19 reversed the trial court, and reinstated the case. In
its decision, the appellate court ruled that the trial court acted without or in excess of its jurisdiction "in supplanting
the public prosecutors findings of probable cause with her own findings of insufficiency of evidence and lack of
probable cause."20

Aggrieved, Alfredo filed a petition for review under Rule 45 before this court. In essence, he argued that the trial
court was correct in finding that there was no probable cause as shown by the evidence on record. He argued that
"judicial determination of probable cause is broader than [the] executive determination of probable cause"21and that
"[i]t is not correct to say that the determination of probable cause is exclusively vested on the prosecutor x x x."22

In its comment,23 Juno Cars argued that Alfredo presented questions, issues, and arguments that were a mere
rehash of those already considered and passed upon by the appellate court.
The Office of the Solicitor General, arguing for public respondent, stated in its comment24 that the appellate court
correctly sustained the public prosecutor in his findings of probable cause against Alfredo. Since there was no
showing of grave abuse of discretion on the part of Prosecutor Rey F. Delgado, the trial court should respect his
determination of probable cause.

In his reply,25 Alfredo reiterated that "judicial determination of probable cause[,] while not a superior faculty[,] covers
a broader encompassing perspective in the disposition of the issue on the existence of probable cause."26He argued
that the findings of the trial court should be accorded greater weight than the appellate courts. It merely reviewed
the findings of the trial court.

The primordial issue is whether the trial court may dismiss an information filed by the prosecutor on the basis of its
own independent finding of lack of probable cause.

Time and again, this court has been confronted with the issue of the difference between the determination of
probable cause by the prosecutor on one hand and the determination of probable cause by the judge on the other.
We examine these two concepts again.

Juno Cars filed a complaint against Alfredo for qualified theft27 and estafa under Article 315, fourth paragraph, no.
3(c)28 of the Revised Penal Code. Since qualified theft is punishable by reclusion perpetua, a preliminary
investigation must first be conducted "to determine whether there is sufficient ground to engender a well-founded
belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial," in
accordance with Rule 112, Section 1 of the Rules on Criminal Procedure.

At this stage, the conduct of the preliminary investigation and the subsequent determination of the existence of
probable cause lie solely within the discretion of the public prosecutor.29 If upon evaluation of the evidence, the
prosecutor finds sufficient basis to find probable cause, he or she shall then cause the filing of the information with
the court.

Once the information has been filed, the judge shall then "personally evaluate the resolution of the prosecutor and
its supporting evidence"30 to determine whether there is probable cause to issue a warrant of arrest. At this stage, a
judicial determination of probable cause exists.

In People v. Castillo and Mejia,31 this court has stated:

There are two kinds of determination of probable cause: executive and judicial. The executive determination of
probable cause is one made during preliminary investigation. It is a function that properly pertains to the public
prosecutor who is given a broad discretion to determine whether probable cause exists and to charge those whom
he believes to have committed the crime as defined by law and thus should be held for trial. Otherwise stated, such
official has the quasi-judicial authority to determine whether or not a criminal case must be filed in court. Whether or
not that function has been correctly discharged by the public prosecutor, i.e., whether or not he has made a correct
ascertainment of the existence of probable cause in a case, is a matter that the trial court itself does not and may
not be compelled to pass upon.

The judicial determination of probable cause, on the other hand, is one made by the judge to ascertain whether a
warrant of arrest should be issued against the accused. The judge must satisfy himself that based on the evidence
submitted, there is necessity for placing the accused under custody in order not to frustrate the ends of justice. If the
judge finds no probable cause, the judge cannot be forced to issue the arrest warrant.32

The difference is clear: The executive determination of probable cause concerns itself with whether there is enough
evidence to support an Information being filed. The judicial determination of probable cause, on the other hand,
determines whether a warrant of arrest should be issued. In People v. Inting:33

x x x Judges and Prosecutors alike should distinguish the preliminary inquiry which determines probable cause for
the issuance of a warrant of arrest from the preliminary investigation proper which ascertains whether the offender
should be held for trial or released. Even if the two inquiries are conducted in the course of one and the same
proceeding, there should be no confusion about the objectives. The determination of probable cause for the warrant
of arrest is made by the Judge. The preliminary investigation properwhether or not there is reasonable ground to
believe that the accused is guilty of the offense charged and, therefore, whether or not he should be subjected to the
expense, rigors and embarrassment of trialis the function of the Prosecutor.34 (Emphasis supplied)

While it is within the trial courts discretion to make an independent assessment of the evidence on hand, it is only
for the purpose of determining whether a warrant of arrest should be issued. The judge does not act as an appellate
court of the prosecutor and has no capacity to review the prosecutors determination of probable cause; rather, the
judge makes a determination of probable cause independent of the prosecutors finding.

People v. Court of Appeals and Jonathan Cerbo35 discussed the rationale. In that case, Jonathan Cerbo allegedly
shot Rosalinda Dy in the presence of his father, Billy Cerbo. An information for murder was filed against Jonathan
Cerbo. The daughter of Rosalinda Dy, as private complainant, executed a complaint-affidavit charging Billy Cerbo
with conspiracy. The prosecutor then filed a motion to amend the information, which was granted by the court. The
information was then amended to include Billy Cerbo as one of the accused, and a warrant of arrest was issued
against him.

Billy Cerbo filed a motion to quash the warrant arguing that it was issued without probable cause. The trial court
granted this motion, recalled the warrant, and dismissed the case against him. The Court of Appeals affirmed this
dismissal. This court, however, reversed the Court of Appeals and ordered the reinstatement of the amended
information against Billy Cerbo, stating that:

In granting this petition, we are not prejudging the criminal case or the guilt or innocence of Private Respondent Billy
Cerbo. We are simply saying that, as a general rule, if the information is valid on its face and there is no showing of
manifest error, grave abuse of discretion or prejudice on the part of the public prosecutor, courts should not dismiss
it for want of evidence, because evidentiary matters should be presented and heard during the trial. The functions
and duties of both the trial court and the public prosecutor in "the proper scheme of things" in our criminal justice
system should be clearly understood.

The rights of the people from what could sometimes be an "oppressive" exercise of government prosecutorial
powers do need to be protected when circumstances so require. But just as we recognize this need, we also
acknowledge that the State must likewise be accorded due process. Thus, when there is no showing of nefarious
irregularity or manifest error in the performance of a public prosecutors duties, courts ought to refrain from
interfering with such lawfully and judicially mandated duties.

In any case, if there was palpable error or grave abuse of discretion in the public prosecutors finding of probable
cause, the accused can appeal such finding to the justice secretary and move for the deferment or suspension of
the proceedings until such appeal is resolved.36 (Emphasis supplied)

In this case, the resolution dated March 4, 2008 of Prosecutor Rey F. Delgado found that the facts and evidence
were "sufficient to warrant the indictment of [petitioner] x x x."37 There was nothing in his resolution which showed
that he issued it beyond the discretion granted to him by law and jurisprudence.

While the information filed by Prosecutor Delgado was valid, Judge Capco-Umali still had the discretion to make her
own finding of whether probable cause existed to order the arrest of the accused and proceed with trial.

Jurisdiction over an accused is acquired when the warrant of arrest is served. Absent this, the court cannot hold the
accused for arraignment and trial.

Article III, Section 2 of the Constitution states:

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.

The Constitution prohibits the issuance of search warrants or warrants of arrest where the judge has not personally
determined the existence of probable cause. The phrase "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" allows a
determination of probable cause by the judge ex parte.

For this reason, Section 6, paragraph (a) of Rule 112 of the Rules on Criminal Procedure mandates the judge to
"immediately dismiss the case if the evidence on record fails to establish probable cause." Section 6, paragraph (a)
of Rule 112 reads:

Section 6. When warrant of arrest may issue. (a) By the Regional Trial Court. Within ten (10) days from the
filing of the complaint or information, the judge shall personally evaluate the resolution of the prosecutor and its
supporting evidence. He may immediately dismiss the case if the evidence on record clearly fails to establish
probable cause. If he finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused
has already been arrested pursuant to a warrant issued by the judge who conducted the preliminary investigation or
when the complaint or information was filed pursuant to section 7 of this Rule. In case of doubt on the existence of
probable cause, the judge may order the prosecutor to present additional evidence within five (5) days from notice
and the issue must be resolved by the court within thirty (30) days from the filing of the complaint of information.

In People v. Hon. Yadao:38

Section 6, Rule 112 of the Rules of Court gives the trial court three options upon the filing of the criminal information:
(1) dismiss the case if the evidence on record clearly failed to establish probable cause; (2) issue a warrant of arrest
if it finds probable cause; and (3) order the prosecutor to present additional evidence within five days from notice in
case of doubt as to the existence of probable cause.

But the option to order the prosecutor to present additional evidence is not mandatory. The courts first option under
1w phi1

the above is for it to "immediately dismiss the case if the evidence on record clearly fails to establish probable
cause." That is the situation here: the evidence on record clearly fails to establish probable cause against the
respondents.39 (Emphasis supplied)

It is also 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."40

In this case, Judge Capco-Umali made an independent assessment of the evidence on record and concluded that
"the evidence adduced does not support a finding of probable cause for the offenses of qualified theft and
estafa."41 Specifically, she found that Juno Cars "failed to prove by competent evidence"42 that the vehicles alleged to
have been pilfered by Alfredo were lawfully possessed or owned by them, or that these vehicles were received by
Alfredo, to be able to substantiate the charge of qualified theft. She also found that the complaint "[did] not state with
particularity the exact value of the alleged office files or their valuation purportedly have been removed, concealed
or destroyed by the accused,"43 which she found crucial to the prosecution of the crime of estafa under Article 315,
fourth paragraph, no. 3(c) of the Revised Penal Code. She also noted that:

x x x As a matter of fact, this court had even ordered that this case be set for clarificatory hearing to clear out
essential matters pertinent to the offense charged and even directed the private complainant to bring documents
relative to the same/payment as well as affidavit of witnesses/buyers with the end view of satisfying itself that indeed
probable cause exists to commit the present case which private complainant failed to do.44

Accordingly, with the present laws and jurisprudence on the matter, Judge Capco-Umali correctly dismissed the
case against Alfredo.

Although jurisprudence and procedural rules allow it, a judge must always proceed with caution in dismissing cases
due to lack of probable cause, considering the preliminary nature of the evidence before it. It is only when he or she
finds that the evidence on hand absolutely fails to support a finding of probable cause that he or she can dismiss the
case. On the other hand, if a judge finds probable cause, he or she must not hesitate to proceed with arraignment
and trial in order that justice may be served.

WHEREFORE, the petition is GRANTED. The decision dated January 14, 2011 of the Court of Appeals in CA-G.R.
SP. No. 110774 is REVERSED and SET ASIDE. Criminal Case Nos. MC08-11604-05 against Alfredo C. Mendoza
are DISMISSED.
SO ORDERED.

G.R. Nos. 94054-57 February 19, 1991

VICENTE LIM, SR. and MAYOR SUSANA LIM, petitioners,

vs.
HON. NEMESIO S. FELIX and HON. ANTONIO ALFANE, respondents.

G.R. Nos. 94266-69 February 19, 1991

JOLLY T. FERNANDEZ, FLORENCIO T. FERNANDEZ, JR., NONILON A. BAGALIHOG, MAYOR NESTOR C.

LIM and MAYOR ANTONIO KHO, petitioners,
vs.
HON. NEMESIO S. FELIX and PROSECUTOR ANTONIO C. ALFANE, respondents.

Francisco R. Llamas for petitioners in G.R. Nos. 94054-57.

Jolly T. Fernandez, Elenito Bagalihog, Orlando M. Danao and Hechanova, Ballicid & Associates for petitioners in
G.R. Nos. 94266-69.

GUTIERREZ, JR., J.:

May a Judge without ascertaining the facts through his own personal determination and relying solely on the
certification or recommendation of a prosecutor that a probable cause exists issue a warrant of arrest?

On March 17, 1989, at about 7:30 o'clock in the morning, at the vicinity of the airport road of the Masbate Domestic
Airport, located at the municipality of Masbate province of Masbate, Congressman Moises Espinosa, Sr. and his
security escorts, namely Provincial Guards Antonio Cortes, Gaspar Amaro, and Artemio Fuentes were attacked and
killed by a lone assassin. Dante Siblante another security escort of Congressman Espinosa, Sr. survived the
assassination plot, although, he himself suffered a gunshot wound.

An investigation of the incident then followed.

Thereafter, and for the purpose of preliminary investigation, the designated investigator, Harry O. Tantiado, TSg, of
the PC Criminal Investigation Service at Camp Bagong Ibalon Legazpi City filed an amended complaint with the
Municipal Trial Court of Masbate accusing, among others, Vicente Lim, Sr., Mayor Susana Lim of Masbate
(petitioners in G.R. Nos. 9405457), Jolly T. Fernandez, Florencio T. Fernandez, Jr., Nonilon A. Bagalihog, Mayor
Nestor C. Lim and Mayor Antonio Kho (petitioners in G.R. Nos. 94266-69) of the crime of multiple murder and
frustrated murder in connection with the airport incident. The case was docketed as Criminal Case No. 9211.

After conducting the preliminary investigation, the court issued an order dated July 31, 1989 stating therein that:

. . . after weighing the affidavits and answers given by the witnesses for the prosecution during the
preliminary examination in searching questions and answers, concludes that a probable cause has been
established for the issuance of a warrant of arrest of named accused in the amended complaint, namely,
Jimmy Cabarles, Ronnie Fernandez, Nonilon Bagalihog, Jolly Fernandez, Florencio Fernandez, Jr., Vicente
Lim, Sr., Susana Lim, Nestor Lim, Antonio Kho, Jaime Liwanag, Zaldy Dumalag and Rene Tualla aliasTidoy.
(Rollo, p. 58, G.R. Nos. 94054-57)

xxx xxx xxx

In the same Order, the court ordered the arrest of the petitioners and recommended the amount of P200,000.00 as
bail for the provisional liberty of each of the accused.

Petitioners Jolly Fernandez and Nonilon Bagalihog filed a motion for the reduction of bail which was granted by the
court and they were allowed to post bail in the amount of P150,000.00 each. Except for Jimmy Cabarles, all the rest
of the accused posted bail at P200,000.00 each.

On August 29, 1989, the entire records of the case consisting of two hundred sixty one (261) pages were
transmitted to the Provincial Prosecutor of Masbate. Respondent Acting Fiscal Antonio C. Alfane was designated to
review the case.

On September 22, 1989, Fiscal Alfane issued a Resolution which affirmed the finding of a prima facie case against
the petitioners but differed in the designation of the crime in that the ruled that ". . . all of the accused should not only
be charged with Multiple Murder With Frustrated Murder" but for a case of MURDER for each of the killing of the
four victims and a physical injuries case for inflicting gunshot wound on the buttocks of Dante Siblante." (Annex "H",
Comment of Fiscal Alfane, p. 186, Rollo, G.R. Nos. 94054-57) A motion to reconsider the Resolution filed by
petitioners Vicente Lim, Sr. and Mayor Susana Lim was denied.

On October 30, 1989, Fiscal Alfane filed with the Regional Trial Court of Masbate, four (4) separate informations of
murder against the twelve (12) accused with a recommendation of no bail.

On November 21, 1989, petitioners Vicente Lim, Sr. and Susana Lim filed with us a verified petition for change of
venue. (Case No. A.M. No. 89-11-1270-MTC, formerly, G.R. Nos. 90587-90)

On December 14, 1989, we issued an en banc Resolution authorizing the change of venue from the Regional Trial
Court of Masbate to the Regional Trial Court of Makati to avoid a miscarriage of justice, to wit:

Acting on the petition for change of venue of the trial of Criminal Cases Nos. 5811, 5812, 5813, and 5814
from the Regional Trial Court, Masbate, Masbate to any of the Regional Trial Courts at Quezon City or
Makati, the Court Resolved to (a) GRANT the aforesaid petition for transfer of venue in order to avoid
miscarriage of justice (Article VIII, Section 5(4) of the Philippine Constitution); (b) DIRECT the Clerk of Court,
Regional Trial Court, Masbate, Masbate to transmit the records of the aforesaid cases to the Executive
Judge, Regional Trial Court, Makati, for raffling among the other branches of the court; and (c) ORDER the
Regional Trial Court of Masbate, Masbate to desist from further taking cognizance of the said cases until
such time that the petition is finally resolved.

The cases were raffled to Branch 56 presided by respondent Judge Nemesio S. Felix.

Petitioners Vicente Lim, Sr. and Susana Lim filed with the respondent court several motions and manifestations
which in substance prayed for the following:

1. An order be issued requiring the transmittal of the initial records of the preliminary inquiry or investigation
conducted by the Municipal Judge Barsaga of Masbate for the best enlightenment of this Honorable Court in
its personal determination of the existence of a probable cause or prima facie evidence as well as its
determination of the existence of guilt, pursuant to the mandatory mandate of the constitution that no
warrant shall issue unless the issuing magistrate shall have himself been personally convinced of such
probable cause.

2. Movants be given ample opportunity to file their motion for preliminary investigation as a matter of right;
and

3. In the event that this court may later be convinced of the existence of a probable cause, to be allowed to
file a motion for reduction of bail or for admission of bail. (p. 17, Rollo, G.R. Nos. 94054-57)

In another manifestation, the Lims reiterated that the court conduct a hearing to determine if there really exists
aprima facie case against them in the light of documents which are recantations of some witnesses in the
preliminary investigation. The motions and manifestations were opposed by the prosecution.
On July 5, 1990, the respondent court issued an order denying for lack of merit the motions and manifestations and
issued warrants of arrest against the accused including the petitioners herein. The respondent Judge said:

In the instant cases, the preliminary investigation was conducted by the Municipal Trial Court of Masbate,
Masbate which found the existence of probable cause that the offense of multiple murder was committed
and that all the accused are probably guilty thereof, which was affirmed upon review by the Provincial
Prosecutor who properly filed with the Regional Trial Court four separate informations for murder.
Considering that both the two competent officers to whom such duty was entrusted by law have declared the
existence of probable cause, each information is complete in form and substance, and there is no visible
defect on its face, this Court finds it just and proper to rely on the prosecutor's certification in each
information which reads: (pp. 19-20, Rollo, G.R Nos. 94054-57; Emphasis supplied)

xxx xxx xxx

The petitioners then filed these consolidated petitions questioning the July 5, 1990 Order.

In a Resolution dated July 17, 1990 in G.R. Nos. 94054-57, we issued ". . . a TEMPORARY RESTRAINING
ORDER, effective immediately and continuing until further orders from this Court, ordering the respondent judge or
his duly authorized representatives or agents to CEASE and DESIST from enforcing or implementing the warrant of
arrest without bail issued against the petitioners in his Order dated July 5, 1990 in Criminal Cases Nos. 5811-14.

In another Resolution dated July 31, 1990 in G.R. Nos. 94266-69, we resolved:

xxx xxx xxx

. . . To ISSUE writs of (1) PRELIMINARY MANDATORY INJUNCTION, ordering and directing the
respondent judge to recall/set aside and/or annul the legal effects of the warrants of arrest without bail
issued against and served upon herein petitioners Jolly T. Fernandez, Florencio T. Fernandez, Jr. and
Nonilon Bagalihog and release them from confinement at PC-CIS Detention Center, Camp Crame, Quezon
City; and (2) TEMPORARY RESTRAINING ORDER, effective immediately and continuing until further
orders from this Court, ordering the respondent judge or his duly authorized representatives or agents, to
CEASE AND DESIST from enforcing or implementing the warrants of arrest without bail issued against
petitioners Mayors Nestor C. Lim and Antonio T. Kho.

The primary issue in these consolidated petitions centers on whether or not a judge may issue a warrant of arrest
without bail by simply relying on the prosecution's certification and recommendation that a probable cause exists.

This is not a novel question. In the case of Placer v. Villanueva (126 SCRA 463 [1983]), we ruled that a judge may
rely upon the fiscal's certification of the existence of probable cause and, on the basis thereof, issue a warrant of
arrest. However, the certification does not bind the judge to come out with the warrant of arrest. This decision
interpreted the "search and seizure" provision of the 1973 Constitution which provides:

. . . no search warrant or warrant of arrest shall issue except upon probable cause to be determined by the
judge, or such other responsible officer as may be authorized by law, after examination under oath or
affirmation of the complainant and the witnesses he may produce . . .

We ruled:

. . . The issuance of a warrant is not a mere ministerial function; it calls for the exercise of judicial discretion
on the part of the issuing magistrate. This is clear from the following provisions of Section 6, Rule 112 of the
Rules of Court.

Warrant of arrest, when issued. If the judge be satisfied from the preliminary examination conducted by
him or by the investigating officer that the offense complained of has been committed and that there is
reasonable ground to believe that the accused has committed it, he must issue a warrant or order for his
arrest.
 Under this section, the judge must satisfy himself of the existence of probable cause before issuing a
warrant or order of arrest. If on the face of the information the judge finds no probable cause, he may
disregard the fiscal's certification and require the submission of the affidavits of witnesses to aid him in
arriving at a conclusion as to the existence of a probable cause. This has been the rule since U.S. v.
Ocampo (18 Phil. 1) and Amarga v. Abbas (98 Phil. 739). And this evidently is the reason for the issuance
by respondent of the questioned orders of April 13, 15, 16, 19, 1982 and July 13, 1982. Without the affidavits
of the prosecution witnesses and other evidence which, as a matter of long-standing practice had been
attached to the information filed in his sala, respondent found the informations inadequate bases for the
determination of probable cause. For as the ensuing events would show, after petitioners had submitted the
required affidavits, respondent wasted no time in issuing the warrants of arrest in the case where he was
satisfied that probable cause existed.

The case of Soliven v. Makasiar (167 SCRA 393 [19881) was decided after the effectivity of the 1987 Constitution.
We stated:

The second issue, raised by petitioner Beltran, calls for an interpretation of the constitutional provision on
the issuance of warrants of arrest. The pertinent provision reads:

Art. III, Sec. 2. The right of the people to be secure in their persons, houses, papers and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no
search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by
the judge after examination under oath or affirmation of the complainant and the witnesses he may produce,
and particularly describing the place to be searched and the persons or things to be seized.

The addition of the word "personally" after the word "determined" and the deletion of the grant of authority by
the 1973 Constitution to issue warrants to "other respondent officers as may be authorized by law", has
apparently convinced petitioner Beltran that the Constitution now requires the judge to personally examine
the complainant and his witnesses in his determination of probable cause for the issuance of arrest. This is
not an accurate interpretation.

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 procedures, 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 fiscal's 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 be unduly laden with the preliminary
examinations and investigation of criminal complaints instead of concentrating on hearing and deciding
cases filed before their courts.

The decision in People v. Honorable Enrique B. Inting, et al. (G.R. No. 88919, July 25, 1990), reiterated the above
interpretation of "personal" determination by the Judge:

We emphasize important features of the constitutional mandate that ". . . no search warrant or warrant of
arrest shall issue except upon probable cause to be determined personally by the judge . . ." (Article III,
Section 2, Constitution)

First, the determination of probable cause is a function of the Judge. It is not for the Provincial Fiscal or
Prosecutor nor for the Election Supervisor to ascertain. Only the Judge and the Judge alone makes this
determination.

Second, the preliminary inquiry made by a Prosecutor does not bind the Judge. It merely assists him to
make the determination of probable cause. The Judge does not have to follow what the Prosecutor presents
to him. By itself, the Prosecutor's certification of probable cause is ineffectual. It is the report, the affidavits,
 the transcripts of stenographic notes (if any), and all other supporting documents behind the Prosecutor's
certification which are material in assisting the Judge to make his determination.

And third, Judges and Prosecutors alike should distinguish the preliminary inquiry which determines
probable cause for the issuance of a warrant of arrest from the preliminary investigation proper which
ascertains whether the offender should be held for trial or released. Even if the two inquiries are conducted
in the course of one and the same proceeding, there should be no confusion about the objectives. The
determination of probable cause for 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 and, therefore, whether or not he should be subjected to the expense, rigors and
embarrassment of trial is the function of the Prosecutor.

The Court made this clear in the case of Castillo v. Villaluz (171 SCRA 39 [19891):

Judges of Regional Trial Courts (formerly Courts of First Instance) no longer have authority to
conduct preliminary investigations. That authority, at one time reposed in them under Sections 13,
14 and 16, Rule 112 of the Rules of Court of 1964, (See Sec. 4, Rule 108, Rules of Court of 1940;
People v. Solon, 47 Phil. 443, cited in Moran, Comments on the Rules, 1980 ed., Vol. 4, pp. 115-
116) was removed from them by the 1985 Rules on Criminal Procedure, effective on January 1,
1985, (Promulgated on November 11, 1984) which deleted all provisions granting that power to said
Judges. We had occasion to point tills out in Salta v. Court of Appeals, 143 SCRA 228, and to stress
as well certain other basic propositions, namely: (1) that the conduct of a preliminary investigation is
"not a judicial function . . . (but) part of the prosecution's job, a function of the executive," (2) that
whenever "there are enough his or prosecutors to conduct preliminary investigations, courts are
counseled to leave this job which is essentially executive to them," and the fact "that a certain power
is granted does not necessary mean that it should be indiscriminately exercised.

The 1988 Amendments to the 1985 Rules on Criminal Procedure, declared effective on October 1,
1988, (The 1988 Amendments were published in the issue of Bulletin Today of October 29, 1988)
did not restore that authority to Judges of Regional Trial Courts; said amendments did not in fact
deal at all with the officers or courts having authority to conduct preliminary investigations.

This is not to say, however, that somewhere along the line RTC Judges also lost the power to make
a preliminary examination for the purpose of determining whether probable cause exists to justify the
issuance of a warrant of arrest (or search warrant). Such a power indeed, it is as much a duty as
it is a power has been and remains vested in every judge by the provisions in the Bill of Rights in
the 1935, the 1973 and the present [1987] Constitutions securing the people against unreasonable
searches and seizures, thereby placing it beyond the competence of mere Court Rule or Statute to
revoke. The distinction must, therefore, be made clear while an RTC Judge may no longer conduct
preliminary investigations to ascertain whether there is sufficient ground for the filing of a criminal
complaint or information, he retains the authority, when such a pleading is filed with his court, to
determine whether there is probable cause justifying the issuance of a warrant of arrest. It might be
added that this distinction accords, rather than conflicts, with the rationale of Salta because both law
and rule, in restricting to judges the authority to order arrest, recognize the function to be judicial in
nature.

We reiterate that preliminary investigation should be distinguished as to whether it is an investigation for the
determination of a sufficient ground for the filing of the information or it is an investigation for the
determination of a probable cause for the issuance of a warrant of arrest. The first kind of preliminary
investigation is executive in nature. It is part of the prosecution's job. The second kind of preliminary
investigation which is more properly called preliminary examination is judicial in nature and is lodged with
the Judge. . . .

Finally in the recent case of People v. Delgado, et al. (G.R. Nos. 93419-32, September 18, 1990) there is a
statement that the judge may rely on the resolution of COMELEC to file the information by the same token that it
may rely on the certification made by the prosecutor who conducted the preliminary investigation in the issuance of
the warrant of arrest. We, however, also reiterated that ". . . the court may require that the record of the preliminary
investigation be submitted to it to satisfy itself that there is probable cause which will warrant the issuance of a
warrant of arrest." (Section 2, Article III, Constitution). Reliance on the COMELEC resolution or the Prosecutor's
certification presupposes that the records of either the COMELEC or the Prosecutor have been submitted to the
Judge and he relies on the certification or resolution because the records of the investigation sustain the
recommendation. The warrant issues not on the strength of the certification standing alone but because of the
records which sustain it.

It is obvious from the present petition that notwithstanding the above decisions, some Judges are still bound by the
inertia of decisions and practice under the 1935 and 1973 Constitutions and are sadly confused or hesitant.
Prosecutors are also interested in a clear cut ruling. We will, therefore, restate the rule in greater detail and hopefully
clearer terms.

There is no problem with search warrants which are relatively fewer and far between and where there is no
duplication of work between the Judge and the Prosecutor. The problem lies with warrants of arrest especially in
metropolitan or highly urban areas. If a Judge has to personally question each complainant and witness or go over
the records of the Prosecutor's investigation page by page and word for word before he acts on each of a big pile of
applications for arrest warrants on his desk, he or she may have no more time for his or her more important judicial
functions.

At the same time, the Judge cannot ignore the clear words of the 1987 Constitution which requires ". . . probable
cause to be personally determined by the judge . . .", not by any other officer or person.

If a Judge relies solely on the certification of the Prosecutor as in this case where all the records of the investigation
are in Masbate, he or she has not personally determined probable cause. The determination is made by the
Provincial Prosecutor. The constitutional requirement has not been satisfied. The Judge commits a grave abuse of
discretion.

The records of the preliminary investigation conducted by the Municipal Court of Masbate and reviewed by the
respondent Fiscal were still in Masbate when the respondent Fiscal issued the warrants of arrest against the
petitioners. There was no basis for the respondent Judge to make his own personal determination regarding the
existence of a probable cause for the issuance of a warrant of arrest as mandated by the Constitution. He could not
possibly have known what transpired in Masbate as he had nothing but a certification. Significantly, the respondent
Judge denied the petitioners' motion for the transmittal of the records on the ground that the mere certification and
recommendation of the respondent Fiscal that a probable cause exists is sufficient for him to issue a warrant of
arrest.

We reiterate the ruling in Soliven v. Makasiar that the Judge does not have to personally examine the complainant
and his witnesses. The Prosecutor can perform the same functions as a commissioner for the taking of the
evidence. However, there should be a report and necessary documents supporting the Fiscal's bare certification. All
of these should be before the Judge.

The extent of the Judge's personal examination of the report and its annexes depends on the circumstances of each
case. We cannot determine beforehand how cursory or exhaustive the Judge's examination should be. The Judge
1wphi1

has to exercise sound discretion for, after all, the personal determination is vested in the Judge by the Constitution.
It can be as brief or as detailed as the circumstances of each case require. To be sure, the Judge must go beyond
the Prosecutor's certification and investigation report whenever necessary. He should call for the complainant and
witnesses themselves to answer the court's probing questions when the circumstances of the case so require.

It is worthy to note that petitioners Vicente Lim, Sr. and Susana Lim presented to the respondent Judge documents
of recantation of witnesses whose testimonies were used to establish a prima facie case against them. Although, the
general rule is that recantations are not given much weight in the determination of a case and in the granting of a
new trial (Tan Ang Bun v. Court of Appeals, et al. G.R. No. L-47747, February 15, 1990, People v. Lao Wan Sing,
46 SCRA 298 [1972]) the respondent Judge before issuing his own warrants of arrest should, at the very least, have
gone over the records of the preliminary examination conducted earlier in the light of the evidence now presented by
the concerned witnesses in view of the "political undertones" prevailing in the cases. Even the Solicitor General
recognized the significance of the recantations of some witnesses when he recommends a reinvestigation of the
cases, to wit:
 It must be pointed out, however, that among the documents attached to this Petition are affidavits of
recantation subsequently executed by Jimmy Cabarles and Danilo Lozano and an affidavit executed by one,
Camilo Sanano, father of the complainant's witnesses, Renato and Romeo Sanano. It was precisely on the
strength of these earlier written statements of these witnesses that the Municipal Trial Court of Masbate
found the existence of a prima facie case against petitioners and accordingly recommended the filing of a
Criminal Information. Evidently, the same written statements were also the very basis of the "Fiscal's
Certification", since the attached affidavits of recantation were not yet then available. Since the credibility of
the prosecution witnesses is now assailed and put in issue and, since the petitioners have not yet been
arraigned, it would be to the broader interest of justice and fair play if a reinvestigation of this case be had to
secure the petitioners against hasty prosecution and to protect them from an open and public accusation of
crime, from the trouble, expense and anxiety of a public trial, and also to protect the State from useless and
expensive trials (Salonga v. Pao G.R. No. 59524, February 18,1985). (Rollo of G.R. Nos. 94054-56, pp.
200-201)

We reiterate that in making the required personal determination, a Judge is not precluded from relying on the
evidence earlier gathered by responsible officers. The extent of the reliance depends on the circumstances of each
case and is subject to the Judge's sound discretion. However, the Judge abuses that discretion when having no
evidence before him, he issues a warrant of arrest.

Indubitably, the respondent Judge committed a grave error when he relied solely on the Prosecutor's certification
and issued the questioned Order dated July 5, 1990 without having before him any other basis for his personal
determination of the existence of a probable cause.

WHEREFORE, the instant petitions are hereby GRANTED. The questioned Order of respondent Judge Nemesio S.
Felix of Branch 56, Regional Trial Court of Makati dated July 5, 1990 is declared NULL and VOID and SET ASIDE.
The Temporary Restraining Orders and Preliminary Mandatory Injunction issued in the instant Petitions are made
PERMANENT.

SO ORDERED.

[G.R. No. L-32409. February 27, 1971.]

BACHE & CO. (PHIL.), INC. and FREDERICK E. SEGGERMAN, Petitioners, v. HON. JUDGE VIVENCIO M.
RUIZ, MISAEL P. VERA, in his capacity as Commissioner of Internal Revenue, ARTURO LOGRONIO,
RODOLFO DE LEON, GAVINO VELASQUEZ, MIMIR DELLOSA, NICANOR ALCORDO, JOHN DOE, JOHN
DOE, JOHN DOE, and JOHN DOE, Respondents.

San Juan, Africa, Gonzales & San Agustin, for Petitioners.

Solicitor General Felix Q. Antonio, Assistant Solicitor General Crispin V . Bautista, Solicitor Pedro A.
Ramirez and Special Attorney Jaime M. Maza for Respondents.

DECISION

VILLAMOR, J.:

This is an original action of certiorari, prohibition and mandamus, with prayer for a writ of preliminary
mandatory and prohibitory injunction. In their petition Bache & Co. (Phil.), Inc., a corporation duly organized
and existing under the laws of the Philippines, and its President, Frederick E. Seggerman, pray this Court to
declare null and void Search Warrant No. 2-M-70 issued by respondent Judge on February 25, 1970; to order
respondents to desist from enforcing the same and/or keeping the documents, papers and effects seized by
virtue thereof, as well as from enforcing the tax assessments on petitioner corporation alleged by petitioners to
have been made on the basis of the said documents, papers and effects, and to order the return of the latter to
petitioners. We gave due course to the petition but did not issue the writ of preliminary injunction prayed for
therein.

The pertinent facts of this case, as gathered from record, are as follows: chanrob1es virtual 1aw library

On February 24, 1970, respondent Misael P. Vera, Commissioner of Internal Revenue, wrote a letter addressed
to respondent Judge Vivencio M. Ruiz requesting the issuance of a search warrant against petitioners for
violation of Section 46(a) of the National Internal Revenue Code, in relation to all other pertinent provisions
thereof, particularly Sections 53, 72, 73, 208 and 209, and authorizing Revenue Examiner Rodolfo de Leon, one
of herein respondents, to make and file the application for search warrant which was attached to the letter.

In the afternoon of the following day, February 25, 1970, respondent De Leon and his witness, respondent
Arturo Logronio, went to the Court of First Instance of Rizal. They brought with them the following papers:
respondent Veras aforesaid letter-request; an application for search warrant already filled up but still unsigned
by respondent De Leon; an affidavit of respondent Logronio subscribed before respondent De Leon; a deposition
in printed form of respondent Logronio already accomplished and signed by him but not yet subscribed; and a
search warrant already accomplished but still unsigned by respondent Judge.

At that time respondent Judge was hearing a certain case; so, by means of a note, he instructed his Deputy
Clerk of Court to take the depositions of respondents De Leon and Logronio. After the session had adjourned,
respondent Judge was informed that the depositions had already been taken. The stenographer, upon request
of respondent Judge, read to him her stenographic notes; and thereafter, respondent Judge asked respondent
Logronio to take the oath and warned him that if his deposition was found to be false and without legal basis,
he could be charged for perjury. Respondent Judge signed respondent de Leons application for search warrant
and respondent Logronios deposition, Search Warrant No. 2-M-70 was then sign by respondent Judge and
accordingly issued.

Three days later, or on February 28, 1970, which was a Saturday, the BIR agents served the search warrant
petitioners at the offices of petitioner corporation on Ayala Avenue, Makati, Rizal. Petitioners lawyers protested
the search on the ground that no formal complaint or transcript of testimony was attached to the warrant. The
agents nevertheless proceeded with their search which yielded six boxes of documents.

On March 3, 1970, petitioners filed a petition with the Court of First Instance of Rizal praying that the search
warrant be quashed, dissolved or recalled, that preliminary prohibitory and mandatory writs of injunction be
issued, that the search warrant be declared null and void, and that the respondents be ordered to pay
petitioners, jointly and severally, damages and attorneys fees. On March 18, 1970, the respondents, thru the
Solicitor General, filed an answer to the petition. After hearing, the court, presided over by respondent Judge,
issued on July 29, 1970, an order dismissing the petition for dissolution of the search warrant. In the meantime,
or on April 16, 1970, the Bureau of Internal Revenue made tax assessments on petitioner corporation in the
total sum of P2,594,729.97, partly, if not entirely, based on the documents thus seized. Petitioners came to this
Court.

The petition should be granted for the following reasons: chanrob1es virtual 1aw library

1. Respondent Judge failed to personally examine the complainant and his witness.

The pertinent provisions of the Constitution of the Philippines and of the Revised Rules of Court are: jgc:chanrobles.com.ph

"(3) The right of the people to be secure in their persons, houses, papers and effects against unreasonable
searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, to be
determined 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."
(Art. III, Sec. 1, Constitution.)

"SEC. 3. Requisites for issuing search warrant. A search warrant shall not issue but upon probable cause in
connection with one specific offense to be determined by the judge or justice of the peace 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.

"No search warrant shall issue for more than one specific offense.

"SEC. 4. Examination of the applicant. The judge or justice of the peace must, before issuing the warrant,
personally examine on oath or affirmation the complainant and any witnesses he may produce and take their
depositions in writing, and attach them to the record, in addition to any affidavits presented to him." (Rule 126,
Revised Rules of Court.)

The examination of the complainant and the witnesses he may produce, required by Art. III, Sec. 1, par. 3, of
the Constitution, and by Secs. 3 and 4, Rule 126 of the Revised Rules of Court, should be conducted by the
judge himself and not by others. The phrase "which shall be determined by the judge after examination under
oath or affirmation of the complainant and the witnesses he may produce," appearing in the said constitutional
provision, was introduced by Delegate Francisco as an amendment to the draft submitted by the Sub-
Committee of Seven. The following discussion in the Constitutional Convention (Laurel, Proceedings of the
Philippine Constitutional Convention, Vol. III, pp. 755-757) is enlightening: jgc:chanrobles.com.ph

"SR. ORENSE. Vamos a dejar compaero los piropos y vamos al grano.

En los casos de una necesidad de actuar inmediatamente para que no se frusten los fines de la justicia
mediante el registro inmediato y la incautacion del cuerpo del delito, no cree Su Seoria que causaria cierta
demora el procedimiento apuntado en su enmienda en tal forma que podria frustrar los fines de la justicia o si
Su Seoria encuentra un remedio para esto casos con el fin de compaginar los fines de la justicia con los
derechos del individuo en su persona, bienes etcetera, etcetera.

"SR. FRANCISCO. No puedo ver en la practica el caso hipottico que Su Seoria pregunta por la siguiente razon:
el que solicita un mandamiento de registro tiene que hacerlo por escrito y ese escrito no aparecer en la Mesa
del Juez sin que alguien vaya el juez a presentar ese escrito o peticion de sucuestro. Esa persona que presenta
el registro puede ser el mismo denunciante o alguna persona que solicita dicho mandamiento de registro. Ahora
toda la enmienda en esos casos consiste en que haya peticion de registro y el juez no se atendra solamente a
sea peticion sino que el juez examiner a ese denunciante y si tiene testigos tambin examiner a los testigos.

"SR. ORENSE. No cree Su Seoria que el tomar le declaracion de ese denunciante por escrito siempre requeriria
algun tiempo?.

"SR. FRANCISCO. Seria cuestio de un par de horas, pero por otro lado minimizamos en todo lo posible las
vejaciones injustas con la expedicion arbitraria de los mandamientos de registro. Creo que entre dos males
debemos escoger. el menor.

x x x

"MR. LAUREL. . . . The reason why we are in favor of this amendment is because we are incorporating in our
constitution something of a fundamental character. Now, before a judge could issue a search warrant, he must
be under the obligation to examine personally under oath the complainant and if he has any witness, the
witnesses that he may produce . . ." cralaw virtua1aw library

The implementing rule in the Revised Rules of Court, Sec. 4, Rule 126, is more emphatic and candid, for it
requires the judge, before issuing a search warrant, to "personally examine on oath or affirmation the
complainant and any witnesses he may produce . . ." cralaw virtua1aw library

Personal examination by the judge of the complainant and his witnesses is necessary to enable him to
determine the existence or non-existence of a probable cause, pursuant to Art. III, Sec. 1, par. 3, of the
Constitution, and Sec. 3, Rule 126 of the Revised Rules of Court, both of which prohibit the issuance of warrants
except "upon probable cause." The determination of whether or not a probable cause exists calls for the
exercise of judgment after a judicial appraisal of facts and should not be allowed to be delegated in the absence
of any rule to the contrary.

In the case at bar, no personal examination at all was conducted by respondent Judge of the complainant
(respondent De Leon) and his witness (respondent Logronio). While it is true that the complainants application
for search warrant and the witness printed-form deposition were subscribed and sworn to before respondent
Judge, the latter did not ask either of the two any question the answer to which could possibly be the basis for
determining whether or not there was probable cause against herein petitioners. Indeed, the participants seem
to have attached so little significance to the matter that notes of the proceedings before respondent Judge were
not even taken. At this juncture it may be well to recall the salient facts. The transcript of stenographic notes
(pp. 61-76, April 1, 1970, Annex J-2 of the Petition) taken at the hearing of this case in the court below shows
that per instruction of respondent Judge, Mr. Eleodoro V. Gonzales, Special Deputy Clerk of Court, took the
depositions of the complainant and his witness, and that stenographic notes thereof were taken by Mrs. Gaspar.
At that time respondent Judge was at the sala hearing a case. After respondent Judge was through with the
hearing, Deputy Clerk Gonzales, stenographer Gaspar, complainant De Leon and witness Logronio went to
respondent Judges chamber and informed the Judge that they had finished the depositions. Respondent Judge
then requested the stenographer to read to him her stenographic notes. Special Deputy Clerk Gonzales testified
as follows:
jgc:chanrobles.com.ph

"A And after finishing reading the stenographic notes, the Honorable Judge requested or instructed them,
requested Mr. Logronio to raise his hand and warned him if his deposition will be found to be false and without
legal basis, he can be charged criminally for perjury. The Honorable Court told Mr. Logronio whether he affirms
the facts contained in his deposition and the affidavit executed before Mr. Rodolfo de Leon.

"Q And thereafter?

"A And thereafter, he signed the deposition of Mr. Logronio.

"Q Who is this he?

"A The Honorable Judge.

"Q The deposition or the affidavit?

"A The affidavit, Your Honor." cralaw virtua1aw library

Thereafter, respondent Judge signed the search warrant.

The participation of respondent Judge in the proceedings which led to the issuance of Search Warrant No. 2-M-
70 was thus limited to listening to the stenographers readings of her notes, to a few words of warning against
the commission of perjury, and to administering the oath to the complainant and his witness. This cannot be
consider a personal examination. If there was an examination at all of the complainant and his witness, it was
the one conducted by the Deputy Clerk of Court. But, as stated, the Constitution and the rules require a
personal examination by the judge. It was precisely on account of the intention of the delegates to the
Constitutional Convention to make it a duty of the issuing judge to personally examine the complainant and his
witnesses that the question of how much time would be consumed by the judge in examining them came up
before the Convention, as can be seen from the record of the proceedings quoted above. The reading of the
stenographic notes to respondent Judge did not constitute sufficient compliance with the constitutional mandate
and the rule; for by that manner respondent Judge did not have the opportunity to observe the demeanor of the
complainant and his witness, and to propound initial and follow-up questions which the judicial mind, on
account of its training, was in the best position to conceive. These were important in arriving at a sound
inference on the all-important question of whether or not there was probable cause.

2. The search warrant was issued for more than one specific offense.

Search Warrant No. 2-M-70 was issued for" [v]iolation of Sec. 46(a) of the National Internal Revenue Code in
relation to all other pertinent provisions thereof particularly Secs. 53, 72, 73, 208 and 209." The question is:
Was the said search warrant issued "in connection with one specific offense," as required by Sec. 3, Rule 126?

To arrive at the correct answer it is essential to examine closely the provisions of the Tax Code referred to
above. Thus we find the following: chanrob1es virtual 1aw library

Sec. 46(a) requires the filing of income tax returns by corporations.

Sec. 53 requires the withholding of income taxes at source.

Sec. 72 imposes surcharges for failure to render income tax returns and for rendering false and fraudulent
returns.

Sec. 73 provides the penalty for failure to pay the income tax, to make a return or to supply the information
required under the Tax Code.

Sec. 208 penalizes" [a]ny person who distills, rectifies, repacks, compounds, or manufactures any article
subject to a specific tax, without having paid the privilege tax therefore, or who aids or abets in the conduct of
illicit distilling, rectifying, compounding, or illicit manufacture of any article subject to specific tax . . .," and
provides that in the case of a corporation, partnership, or association, the official and/or employee who caused
the violation shall be responsible.

Sec. 209 penalizes the failure to make a return of receipts, sales, business, or gross value of output removed,
or to pay the tax due thereon.

The search warrant in question was issued for at least four distinct offenses under the Tax Code. The first is the
violation of Sec. 46(a), Sec. 72 and Sec. 73 (the filing of income tax returns), which are interrelated. The
second is the violation of Sec. 53 (withholding of income taxes at source). The third is the violation of Sec. 208
(unlawful pursuit of business or occupation); and the fourth is the violation of Sec. 209 (failure to make a return
of receipts, sales, business or gross value of output actually removed or to pay the tax due thereon). Even in
their classification the six above-mentioned provisions are embraced in two different titles: Secs. 46(a), 53, 72
and 73 are under Title II (Income Tax); while Secs. 208 and 209 are under Title V (Privilege Tax on Business
and Occupation).

Respondents argue that Stonehill, Et. Al. v. Diokno, Et Al., L-19550, June 19, 1967 (20 SCRA 383), is not
applicable, because there the search warrants were issued for "violation of Central Bank Laws, Internal Revenue
(Code) and Revised Penal Code;" whereas, here Search Warrant No 2-M-70 was issued for violation of only one
code, i.e., the National Internal Revenue Code. The distinction more apparent than real, because it was
precisely on account of the Stonehill incident, which occurred sometime before the present Rules of Court took
effect on January 1, 1964, that this Court amended the former rule by inserting therein the phrase "in
connection with one specific offense," and adding the sentence "No search warrant shall issue for more than one
specific offense," in what is now Sec. 3, Rule 126. Thus we said in Stonehill: jgc:chanrobles.com.ph

"Such is the seriousness of the irregularities committed in connection with the disputed search warrants, that
this Court deemed it fit to amend Section 3 of Rule 122 of the former Rules of Court that a search warrant shall
not issue but upon probable cause in connection with one specific offense. Not satisfied with this qualification,
the Court added thereto a paragraph, directing that no search warrant shall issue for more than one specific
offense."

3. The search warrant does not particularly describe the things to be seized.

The documents, papers and effects sought to be seized are described in Search Warrant No. 2-M-70 in this
manner: jgc:chanrobles.com.ph

"Unregistered and private books of accounts (ledgers, journals, columnars, receipts and disbursements books,
customers ledgers); receipts for payments received; certificates of stocks and securities; contracts, promissory
notes and deeds of sale; telex and coded messages; business communications, accounting and business
records; checks and check stubs; records of bank deposits and withdrawals; and records of foreign remittances,
covering the years 1966 to 1970." cralaw virtua1aw library

The description does not meet the requirement in Art III, Sec. 1, of the Constitution, and of Sec. 3, Rule 126 of
the Revised Rules of Court, that the warrant should particularly describe the things to be seized.

In Stonehill, this Court, speaking thru Mr. Chief Justice Roberto Concepcion, said: jgc:chanrobles.com.ph

"The grave violation of the Constitution made in the application for the contested search warrants was
compounded by the description therein made of the effects to be searched for and seized, to wit: chanrob1es virtual 1aw library

Books of accounts, financial records, vouchers, journals, correspondence, receipts, ledgers, portfolios, credit
journals, typewriters, and other documents and/or paper showing all business transactions including
disbursement receipts, balance sheets and related profit and loss statements.

"Thus, the warrants authorized the search for and seizure of records pertaining to all business transactions of
petitioners herein, regardless of whether the transactions were legal or illegal. The warrants sanctioned the
seizure of all records of the petitioners and the aforementioned corporations, whatever their nature, thus openly
contravening the explicit command of our Bill of Rights that the things to be seized be particularly described
as well as tending to defeat its major objective: the elimination of general warrants." cralaw virtua1aw library

While the term "all business transactions" does not appear in Search Warrant No. 2-M-70, the said warrant
nevertheless tends to defeat the major objective of the Bill of Rights, i.e., the elimination of general warrants,
for the language used therein is so all-embracing as to include all conceivable records of petitioner corporation,
which, if seized, could possibly render its business inoperative.

In Uy Kheytin, Et. Al. v. Villareal, etc., Et Al., 42 Phil. 886, 896, this Court had occasion to explain the purpose
of the requirement that the warrant should particularly describe the place to be searched and the things to be
seized, to wit:
jgc:chanrobles.com.ph

". . . Both the Jones Law (sec. 3) and General Orders No. 58 (sec. 97) specifically require that a search warrant
should particularly describe the place to be searched and the things to be seized. The evident purpose and
intent of this requirement is to limit the things to be seized to those, and only those, particularly described in
the search warrant to leave the officers of the law with no discretion regarding what articles they shall seize,
to the end that unreasonable searches and seizures may not be made, that abuses may not be committed.
That this is the correct interpretation of this constitutional provision is borne out by American authorities."cralaw virtua1aw library

The purpose as thus explained could, surely and effectively, be defeated under the search warrant issued in this
case.

A search warrant may be said to particularly describe the things to be seized when the description therein is as
specific as the circumstances will ordinarily allow (People v. Rubio; 57 Phil. 384); or when the description
expresses a conclusion of fact not of law by which the warrant officer may be guided in making the search
and seizure (idem., dissent of Abad Santos, J.,); or when the things described are limited to those which bear
direct relation to the offense for which the warrant is being issued (Sec. 2, Rule 126, Revised Rules of Court).
The herein search warrant does not conform to any of the foregoing tests. If the articles desired to be seized
have any direct relation to an offense committed, the applicant must necessarily have some evidence, other
than those articles, to prove the said offense; and the articles subject of search and seizure should come in
handy merely to strengthen such evidence. In this event, the description contained in the herein disputed
warrant should have mentioned, at least, the dates, amounts, persons, and other pertinent data regarding the
receipts of payments, certificates of stocks and securities, contracts, promissory notes, deeds of sale, messages
and communications, checks, bank deposits and withdrawals, records of foreign remittances, among others,
enumerated in the warrant.

Respondents contend that certiorari does not lie because petitioners failed to file a motion for reconsideration of
respondent Judges order of July 29, 1970. The contention is without merit. In the first place, when the
questions raised before this Court are the same as those which were squarely raised in and passed upon by the
court below, the filing of a motion for reconsideration in said court before certiorari can be instituted in this
Court is no longer a prerequisite. (Pajo, etc., Et. Al. v. Ago, Et Al., 108 Phil., 905). In the second place, the rule
requiring the filing of a motion for reconsideration before an application for a writ of certiorari can be
entertained was never intended to be applied without considering the circumstances. (Matutina v. Buslon, Et
Al., 109 Phil., 140.) In the case at bar time is of the essence in view of the tax assessments sought to be
enforced by respondent officers of the Bureau of Internal Revenue against petitioner corporation, On account of
which immediate and more direct action becomes necessary. (Matute v. Court of Appeals, Et Al., 26 SCRA 768.)
Lastly, the rule does not apply where, as in this case, the deprivation of petitioners fundamental right to due
process taints the proceeding against them in the court below not only with irregularity but also with nullity.
(Matute v. Court of Appeals, Et Al., supra.)

It is next contended by respondents that a corporation is not entitled to protection against unreasonable search
and seizures. Again, we find no merit in the contention.

"Although, for the reasons above stated, we are of the opinion that an officer of a corporation which is charged
with a violation of a statute of the state of its creation, or of an act of Congress passed in the exercise of its
constitutional powers, cannot refuse to produce the books and papers of such corporation, we do not wish to be
understood as holding that a corporation is not entitled to immunity, under the 4th Amendment, against
unreasonable searches and seizures. A corporation is, after all, but an association of individuals under an
assumed name and with a distinct legal entity. In organizing itself as a collective body it waives no
constitutional immunities appropriate to such body. Its property cannot be taken without compensation. It can
only be proceeded against by due process of law, and is protected, under the 14th Amendment, against
unlawful discrimination . . ." (Hale v. Henkel, 201 U.S. 43, 50 L. ed. 652.)

"In Linn v. United States, 163 C.C.A. 470, 251 Fed. 476, 480, it was thought that a different rule applied to a
corporation, the ground that it was not privileged from producing its books and papers. But the rights of a
corporation against unlawful search and seizure are to be protected even if the same result might have been
achieved in a lawful way." (Silverthorne Lumber Company, Et. Al. v. United States of America, 251 U.S. 385, 64
L. ed. 319.)

In Stonehill, Et. Al. v. Diokno, Et Al., supra, this Court impliedly recognized the right of a corporation to object
against unreasonable searches and seizures, thus: jgc:chanrobles.com.ph

"As regards the first group, we hold that petitioners herein have no cause of action to assail the legality of the
contested warrants and of the seizures made in pursuance thereof, for the simple reason that said corporations
have their respective personalities, separate and distinct from the personality of herein petitioners, regardless
of the amount of shares of stock or the interest of each of them in said corporations, whatever, the offices they
hold therein may be. Indeed, it is well settled that the legality of a seizure can be contested only by the party
whose rights have been impaired thereby, and that the objection to an unlawful search and seizure is purely
personal and cannot be availed of by third parties. Consequently, petitioners herein may not validly object to
the use in evidence against them of the documents, papers and things seized from the offices and premises of
the corporations adverted to above, since the right to object to the admission of said papers in evidence
belongs exclusively to the corporations, to whom the seized effects belong, and may not be invoked by the
corporate officers in proceedings against them in their individual capacity . . ."cralaw virtua1aw library

In the Stonehill case only the officers of the various corporations in whose offices documents, papers and
effects were searched and seized were the petitioners. In the case at bar, the corporation to whom the seized
documents belong, and whose rights have thereby been impaired, is itself a petitioner. On that score, petitioner
corporation here stands on a different footing from the corporations in Stonehill.

The tax assessments referred to earlier in this opinion were, if not entirely as claimed by petitioners at
least partly as in effect admitted by respondents based on the documents seized by virtue of Search
Warrant No. 2-M-70. Furthermore, the fact that the assessments were made some one and one-half months
after the search and seizure on February 25, 1970, is a strong indication that the documents thus seized served
as basis for the assessments. Those assessments should therefore not be enforced.

PREMISES CONSIDERED, the petition is granted. Accordingly, Search Warrant No. 2-M-70 issued by respondent
Judge is declared null and void; respondents are permanently enjoined from enforcing the said search warrant;
the documents, papers and effects seized thereunder are ordered to be returned to petitioners; and respondent
officials the Bureau of Internal Revenue and their representatives are permanently enjoined from enforcing the
assessments mentioned in Annex "G" of the present petition, as well as other assessments based on the
documents, papers and effects seized under the search warrant herein nullified, and from using the same
against petitioners in any criminal or other proceeding. No pronouncement as to costs.

Concepcion, C.J., Dizon, Makalintal, Zaldivar, Fernando, Teehankee and Makasiar, JJ., concur.

Reyes, J.B.L., J., concurs with Mr. Justice Barredo.

Castro, J., concurs in the result.