[G.R. No. 127107.

October 12, 1998] David, Francisco Yambao, Juan Magat, Arturo Naguit,
Fortunato Mallari, Jesus de la Cruz, Joselito Miranda, SPO3
B. WHETHER PUBLIC RESPONDENT JUDGE ACTED IN
Gilberto Malabanan, Aniano Magnaye, Vladimir Yumul, a
EXCESS OF JURISDICTION IN PROCEEDING WITH THE
PETER PAUL DIMATULAC and VERONICA DIMATULAC, certain Danny, and a certain Koyang/Arding. The complaint
ARRAIGNMENT AND IN DENYING PETITIONERS MOTIONS
petitioners, vs. HON. SESINANDO VILLON in his capacity as was docketed as Criminal Case No. 95-360. After
TO SET ASIDE ARRAIGNMENT AND RECONSIDERATION
Presiding Judge of the Regional Trial Court of Pampanga, conducting a preliminary examination in the form of
THEREOF DESPITE HIS KNOWLEDGE OF THE PENDENCY OF
Branch 54; HON. TEOFISTO GUINGONA, in his capacity as searching questions and answers, and finding probable
THE APPEAL AND THE SUBMISSION OF VITAL EVIDENCE TO
Secretary of Justice; MAYOR SANTIAGO YABUT, cause, Judge Designate Serafin B. David of the MCTC
PROVE THAT MURDER AND NOT HOMICIDE WAS
SERVILLANO YABUT, MARTIN YABUT and FORTUNATO issued warrants for the arrest of the accused and directed
COMMITTED BY THE ACCUSED.
MALLARI, respondents. them to file their counter-affidavits.

DECISION
C. WHETHER PUBLIC RESPONDENT SECRETARY OF JUSTICE
DAVIDE, JR., J.: Only accused Evelino David, Justino Mandap, Juan Magat
COMMITTED GRAVE ABUSE OF DISCRETION IN
and Francisco Yambao were arrested; while only Francisco
RECONSIDERING HIS ORDER FINDING THAT THE CRIME
Yambao submitted his counter affidavit.[3]
COMMITTED WAS MURDER AND DIRECTING THE
The issues raised by petitioners in their Memorandum[1] PROVINCIAL PROSECUTOR TO AMEND THE INFORMATION
and by the Office of the Solicitor General in its FROM HOMICIDE TO MURDER.
Comment[2] in this special civil action for certiorari, On 1 December 1995, after appropriate proceedings,
prohibition and mandamus under Rule 65 of the Rules of Judge David issued a Resolution[4] in Criminal Case No. 95-
Court filed by petitioners, children of the dece ased Police 360 finding reasonable ground to believe that the crime of
The records and the pleadings of the parties disclose the
Officer 3 (PO3) Virgilio Dimatulac of Masantol, Pampanga, murder had been committed and that the accused were
antecedents.
may be summarized as follows: probably guilty thereof. His findings of fact and conclusions
were as follows:

On 3 November 1995, SPO3 Virgilio Dimatulac was shot

A. WHETHER THE OFFICE OF THE PROVINCIAL
dead at his residence in Barangay San Nicolas, Masantol,
PROSECUTOR COMMITTED GRAVE ABUSE OF DISCRETION That on or about November 3, 1995, all the accused under
Pampanga.
IN: (1) GIVING DUE COURSE TO THE MOTION FOR the leadership of Mayor Santiago Docsay Yabut, including
REINVESTIGATION BY PRIVATE RESPONDENTS AGAINST two John Does identified only as Dan/Danny and
WHOM WARRANTS OF ARREST WERE ISSUED BUT WHO Koyang/Arding, went to Masantol, Pampanga for the
On 5 November 1995, a complaint for Murder was filed purpose of looking for a certain PO3 Virgilio Dimatulac.
HAD NOT YET BEEN BROUGHT INTO THE CUSTODY OF THE
before the Municipal Circuit Trial Court (MCTC) of
LAW; and (2) FILING THE INFORMATION FOR HOMICIDE
Macabebe-Masantol in Macabebe, Pampanga, by SPO1
DESPITE KNOWLEDGE OF THE APPEAL FROM SAID
Renato Layug of the Masantol Police Station against
PROSECUTORS RESOLUTION TO THE OFFICE OF THE At first, the accused, riding on [sic] a truck, went to the
private respondents Mayor Santiago Yabut, Martin Yabut,
SECRETARY OF JUSTICE. Municipal Hall of Masantol, Pampanga inquiring about PO3
Servillano Yabut, Evelino David, Justino Mandap, Casti
Virgilio Dimatulac. Thereafter, they went to the house of
1
Mayor Lacap for the purpose of inquiring [about] the [the expired, he left a dying declaration pointing to the group of Servillano Yabut, Francisco Yambao, Avelino David, Casti
location of the] house of PO3 Virgilio Dimatulac, until Mayor Docsay Yabut as the one responsible. David, Catoy Naguit, Fortunato Mallari, Boy dela Cruz, Lito
finally, they were able to reach the house of said Virgilio Miranda and Juan Magat with no bail recommended.
Dimatulac at San Nicolas, Masantol, Pampanga.
That right after Virgilio Dimatulac was shot, accused
Docsay Yabut ordered his men to go on board the truck However, with respect to accused Dan/Danny and
Upon reaching the house of PO3 Virgilio Dimatulac, the and immediately left away leaving Virgilio Dimatulac Koyang/Arding, the court directed the police authorities to
truck the accused were all riding, stopped and parked in bleeding and asking for help. furnish the court [a] descriptio personae of the accused for
front of the house of said PO3 Virgilio Dimatulac, some of the purpose of issuing the needed warrant of arrest.
the accused descended from the truck and positioned
themselves around the house while others stood by the On their way home to Minalin, accused Santiago Docsay
truck and the Mayor stayed [in] the truck with a Yabut gave money to accused John Doe Dan/Danny and The accused were furnish [sic] copies of the complaint and
bodyguard. Francisco Boy Yambao was asked to bring the accused affidavits of witnesses for them to file their counter-
John Doe to Nueva Ecija which he did. affidavits in accordance to [sic] law.

Accused Billy Yabut, Kati Yabut and Francisco Yambao

went inside the house of Virgilio Dimatulac [and] were Further, accused Santiago Docsay Yabut told his group to As of this date, only accused Francisco Boy Yambao filed
even offered coffee. deny that they ever went to Masantol. his counter-affidavit and all the others waived the filing of
the same.

[A]ccused Yabut brothers (Kati and Billy) strongly The court, after having conducted preliminary examination
suggested to Virgilio Dimatulac to go down to see the on the complainant and the witnesses presented, [is] A close evaluation of the evidence submitted by the
Mayor outside in front of his house to say sorry. satisfied that there is a [sic] reasonable ground to believe accused Francisco Yambao which the court finds it [sic]
that the crime of murder was committed and that the straightforward and more or less credible and seems to be
accused in conspiring and confederating with one another consistent with truth, human nature and [the] natural
[W]hen Virgilio Dimatulac went down from his house, are probably guilty thereof. course of things and lack of motives [sic], the evidence of
suddenly [a] gun shot was heard and then, the son of guilt against him is rather weak [compared to] the others,
Virgilio Dimatulac, Peter Paul, started to shout the which [is why] the court recommends a cash bond of
following words: What did you do to my father?! Circumstantial evidence strongly shows the presence of P50,000.00 for his provisional liberty, and the courts
conspiracy. previous order of no bail for said accused is hereby
reconsidered.
One of the men of Mayor Docsay Yabut shot Virgilio
Dimatulac, and as a consequence, he died; and before he That in order not to frustrate the ends of justice, warrants
of arrest were issued against Santiago Yabut, Martin Yabut,

2
WHEREFORE, premises considered, the Clerk of Court is PO3 Virgilio Dimatulac was on duty, to which Soriano to retaliate; and 2) the means of execution were
directed to forward the entire records of the case to the replied that Dimatulac was at home. The group left on deliberately or consciously adopted xxx.
Office of the Provincial Prosecutor of Pampanga for further board a military truck headed for San Nicolas, Masantol,
action, together with the bodies of accused Francisco Pampanga. Later that day, SPO2 Michael Viray received a
Yambao and Juan Magat to be remanded to the provincial telephone call at the police station reporting that someone In the instant case, the presence of the first requisite was
Jail of Pampanga.[5] (underscoring supplied) had shot Virgilio Dimatulac. clearly established by the evidence, such that the attack
upon the victim while descending the stairs was so sudden
and unexpected as to render him no opportunity to defend
In a sworn statement,[6] petitioner Peter Paul Dimatulac Thereafter, Pampanga Assistant Provincial Prosecutor himself or to retaliate. However, the circumstances, as
narrated that Mayor Santiago Yabut, accompanied by a Sylvia Q. Alfonso-Flores conducted a reinvestigation. portrayed by witness Peter Paul Dimatulac, negate the
number of bodyguards, went to the residence of PO3 However, it is not clear from the record whether she presence of the second requisite. According to the said
Virgilio Dimatulac to talk about a problem between the conducted the same motu proprio or upon motion of witness, the victim was already descending when Mayor
Mayor and Peter Pauls uncle, Jun Dimatulac. Virgilio private respondents Santiago Yabut, Servillano Yabut and Yabut commanded the assailant to shoot him, and
warmly welcomed the group and even prepared coffee for Martin Yabut (hereafter YABUTs). All of the accused who immediately thereafter, he heard the gunshot. This would
them. Servillano and Martin Yabut told Virgilio to come had not submitted their counter-affidavits before the therefore show that the assailant did not consciously
down from his house and apologize to the Mayor, but MCTC, except accused Danny and Koyang/Arding, adopt the position of the victim at the time he fired the
hardly had Virgilio descended when Peter Paul heard a submitted their counter-affidavits to Assistant Provincial fatal shot. The command of Mayor Yabut to shoot came so
gunshot. While Peter Paul did not see who fired the shot, Prosecutor Alfonso Flores. sudden as to afford no opportunity for the assailant to
he was sure it was one of Mayor Yabuts companions. Peter choose the means or method of attack. The act of Mayor
Paul opined that his father was killed because the latter Yabut in giving the command to shoot further bolster[s]
spoke to the people of Minalin, Pampanga, against the In her Resolution dated 29 January 1996,[9] Assistant the fact that the conspirator did not concert the means
Mayor. Peter Paul added in a supplemental statement Provincial Prosecutor Alfonso-Flores found that the and method of attack nor the manner thereof. Otherwise
(Susog na Salaysay)[7] that he heard Mayor Yabut order YABUTs and the assailant Danny, to the exclusion of the there would have been no necessity for him to give the
Virgilio killed. other accused, were in conspiracy with one another, but order to the assailant. The method and manner of attack
that the offense committed was only homicide, not was adopted by the assailant at the spur of the moment
murder. In support of such finding, Alfonso-Flores and the vulnerable position of the victim was not
In his Sinumpaang Salaysay,[8] Police Officer Leopoldo reasoned thus: deliberately and consciously adopted. Treachery therefore
Soriano of the Masantol Municipal Police Station in could not be appreciated and the crime reasonably
Masantol, Pampanga, declared that on 3 November 1995, believe[d] to have been committed is Homicide as no
between 3:30 and 4:00 p.m., while he was at the police The complainant in this case charges the crime of Murder circumstance would qualify the killing to murder.
station, three men approached him and asked for qualified by treachery. It must be noted that to constitute
directions to the house of Mayor Epifanio Lacap. Soriano treachery, two conditions must be present, to wit, 1) the
recognized one of the men as SPO1 Labet Malabanan of employment of the [sic] means of execution were give [sic] Alfonso-Flores then ruled:
Minalin, Pampanga. The group left after Soriano gave them the person attacked no opportunity to defend himself or
directions, but one of the three returned to ask whether
3
WHEREFORE, in view of the foregoing, it is hereby 1. THE ASSISTANT PROVINCIAL PROSECUTOR NOT ONLY To refute Alfonso-Flores finding that the means of
recommended that: ERRED IN RULING THAT THERE WAS NO TREACHERY TO execution were not deliberately adopted, petitioners
QUALIFY THE CRIME TO MURDER, BUT LIKEWISE ERRED IN asserted that the meeting of the accused and the victim
NOT APPRECIATING THE PRESENCE OF OTHER QUALIFYING was not accidental as the former purposely searched for
1. An information be filed with the proper court charging CIRCUMSTANCES, TO WIT: the victim at the height of a typhoon, while accused Mayor
Santiago, Servillano and Martin all surnamed Yabut, and Santiago Yabut even remarked to his co-accused Danny,
one John Doe alias Danny as conspirators in the crime of Dikitan mo lang, alam mo na kung ano ang gagawin mo,
Homicide; A. THAT THE ACCUSED COMMITTED THE CRIME WITH THE bahala ka na (Just stay close to him, you know what to do).
AID OF ARMED MEN AND WITH THE USE OF A PERSON TO Thus, Danny positioned himself near the stairs to goad the
INSURE OR AFFORD IMPUNITY; victim to come out of his house, while Fortunato Mallari
2. The case be dismissed against accused Evelino David, represented to the deceased that the latter was being
Justino Mandap a.k.a. Casti David, Francisco Yambao, Juan invited by a certain General Ventura. When the victim
Magat, Arturo Naguit, Bladimir Dimatulac, Fortunato B. THAT THE CRIME WAS COMMITTED IN CONSIDERATION declined the invitation by claiming he was sick, accused
Mallari, Aniano Magnaye, Gilberto Malabanan, Jesus dela OF A PRICE, REWARD, OR PROMISE; Servillano Yabut persuaded the victim to come down by
Cruz and Joselito Miranda. saying, [T]o settle this matter, just apologize to the Mayor
who is in the truck. In view of that enticement, the victim
C. THAT THE CRIME WAS COMMITTED ON THE OCCASION came down, while Danny waited in ambush. To emphasize
Bail of P20,000.00 for each of the accused is likewise OF A DESTRUCTIVE CYCLONE, WHEN THE SUPER-TYPHOON the accuseds resolve to kill the deceased, petitioners
recommended. ROSING WAS RAGING ON NOVEMBER 3, 1995; further narrated that when the deceased ran away after
the first shot, the gunman still pursued him, while Mayor
Santiago Yabut, who was a doctor, kept away at a safe
distance and told everyone in the truck, Tama na, bilisan
The Resolution discloses that Alfonso-Flores conducted a D. THAT THE CRIME WAS COMMITTED WITH EVIDENT
ninyo, (Thats enough, move quickly) without giving
hearing on 11 January 1996 and clarificatory questions PREMEDITATION;
medical assistance to the deceased and without exerting
were propounded only to Peter Paul Dimatulac.
any effort to arrest the gunman.

2. THAT THE HONORABLE INVESTIGATING ASSISTANT

On 23 February 1996, before the Information for homicide PROSECUTOR ERRED IN DISMISSING THE COMPLAINT
The Office of the Provincial Prosecutor of Pampanga was
was filed, complainants, herein petitioners, appealed the AGAINST FORTUNATO MALLARI AND FRANCISCO YAMBAO
furnished with a copy of the Appeal.
resolution of Alfonso-Flores to the Secretary of the BY RULING OUT CONSPIRACY WITH THE YABUT BROTHERS
Department of Justice (DOJ).[10] They alleged in their AS AGAINST FORTUNATO MALLARI AND NOT CHARGING
appeal that: FRANCISCO YAMBAO AS AN ACCESSORY TO MURDER.
On 26 February 1996, Provincial Prosecutor Jesus Y.
Manarang issued a Resolution[11] ordering the release of
accused Evelino David, Justino Mandap, Juan Magat and
Arturo Naguit (who were then detained) in view of the
4
aforementioned resolution of Alfonso-Flores, which, as On 28 February 1996, Judge Reynaldo V. Roura, presiding invoking this Courts rulings in Crespo v. Mogul[19] and
stated in the order, the Provincial Prosecutor approved on judge of Branch 55, approved the cash bonds of the Balgos v. Sandiganbayan,[20] the YABUTs further asserted
February 7, 1996. YABUTs, each in the amount of P20,000.00, and recalled that petitioners should have filed a motion to defer the
the warrants for their arrest.[13] filing of the information for homicide with the Office of the
Provincial Prosecutor, or sought, from the Secretary of
On 28 February 1996, an Information[12] for Homicide, Justice, an order directing the Provincial Prosecutor to
signed by Assistant Provincial Prosecutor Flores and On 29 February 1996, Atty. Amado Valdez, who had defer the filing of the information in court.
Provincial Prosecutor Jesus Y. Manarang, was filed before entered his appearance as private prosecutor, filed two (2)
Branch 55 of the Regional Trial Court (RTC) in Macabebe, motions with the trial court: (1) a Motion to Issue Hold
Pampanga, against the YABUTs and John Doe alias Danny Departure Order Against All Accuseds[14] [sic]; and an (2) In a Reply[21] to the opposition, the private prosecution,
Manalili and docketed as Criminal Case No. 96-1667(M). Urgent Motion to Defer Proceedings,[15] copies of which citing Section 20 of Rule 114 of the Rules of Court, insisted
The accusatory portion of the information read as follows: were furnished the Office of the Provincial Prosecutor of on the need for a hold-departure order against the
Pampanga. The second motion was grounded on the accused; argued that the accuseds right to a speedy trial
pendency of the appeal before the Secretary of Justice and would not be impaired because the appeal to the
That on or about the 3rd day of November, 1995, in the a copy thereof was attached to the motion. Judge Roura Secretary of Justice was filed pursuant to Department
municipality of Masantol, province of Pampanga, set the motions for hearing on 8 March 1996.[16] Order No. 223 of the DOJ and there was clear and
Philippines and within the jurisdiction of this Honorable convincing proof that the killing was committed with
Court, the above-named accused, conspiring and treachery and other qualifying circumstances not absorbed
confederating together and mutually helping one another, On 7 March 1996, Judge Roura ordered the arrest of the in treachery; and contended that the accuseds invocation
with deliberate intent to take the life of PO3 Virgilio A. remaining accused, Danny Manalili.[17] of the right to a speedy trial was inconsistent with their
Dimatulac, did then and there wilfully, unlawfully and filing of various dilatory motions during the preliminary
feloniously shoot the said PO3 Virgilio A. Dimatulac on his investigation. The YABUTs filed a Rejoinder[22] to this
abdomen with the use of a handgun, thereby inflicting On 8 March 1996, the YABUTs filed their opposition[18] to Opposition.
upon him a gunshot wound which cause[d] the death of the Motion to Issue Hold Departure Order and the Motion
the said victim. to Defer Proceedings. The YABUTs asserted that, as to the
first, by posting bail bonds, they submitted to the On 26 March 1996, Judge Roura deferred resolution of the
jurisdiction of the trial court and were bound by the Motion to Issue a Hold Departure Order until such time
All contrary to law. condition therein to surrender themselves whenever so that all the accused who are out on bail are arraigned, but
required by the court, and to seek permission from the denied the Motion to Defer Proceedings as he found no
court should any one of them desire to travel; and, as to compelling reason therefor, considering that although the
The Information, although dated 29 January 1996 was the second, the pendency of the appeal before the appeal was filed on 23 February 1996, the private
signed by Provincial Prosecutor Manarang on 2/27/96, i.e., Secretary of Justice was not a ground to defer prosecution has not shown any indication that [the] appeal
a day before its filing in court. arraignment; moreover, the trial court had to consider was given due course by the Secretary of Justice. Judge
their right to a speedy trial, especially since there was no Roura also set the arraignment of the accused on 12 April
definite date for the resolution of the appeal. Then 1996.[23]
5
 a. Peter Paul Dimatulac

It would appear that the private prosecution moved to On 29 April 1996, Judge Roura voluntarily inhibited himself b. Vladimir D. Yumul
reconsider the order denying the Motion to Defer and ordered the case transferred to Branch 54 of the RTC,
c. SPO1 Gilberto Malabanan
Proceedings since, on 12 April 1996, Judge Roura issued an presided over by herein public respondent Judge
Order[24] giving the private prosecutor ten (10) days from Sesinando Villon.[28] d. PO3 Alfonso Canilao
today within which to file a petition for certiorari
questioning the order of the Court denying his motion for h. Investigation Report- dated November 4, 1995.
reconsideration of the order of March 26, 1996. On 30 April 1996, the Branch Clerk of Court of Branch 54 of i. Dying declaration of Virgilio Dimatulac.
Arraignment was then reset to 3 May 1996. the RTC received the record of Criminal Case No. 96-
1667(M).[29] j. Sketch

k. Unscaled Sketch
On 19 April 1996, petitioners filed a motion to inhibit
Judge Roura[25] from hearing Criminal Case No. 96- On 30 April 1996, petitioners filed with the trial court a Likewise on 30 April 1996, the Court of Appeals
1667(M) on the ground that he: (a) hastily set the case for Manifestation[30] submitting, in connection with their promulgated, in CA-G.R. SP No. 40393, a Resolution[31]
arraignment while the formers appeal in the DOJ was still Motion to Defer Proceedings and Motion to Inhibit Judge directing respondent therein to file his comment to the
pending evaluation; and (b) prejudged the matter, having Roura, documentary evidence to support their contention petition within ten days from notice and to show cause
remarked in open court that there was nothing in the that the offense committed was murder, not homicide. within the same period why no writ of preliminary
records of the case that would qualify the case into The documents which they claimed were not earlier injunction should be issued as prayed for in the petition.
Murder. At the same time, petitioners filed a petition for submitted by the public prosecution were the following: However, the Court of Appeals deferred action on the
prohibition[26] with the Court of Appeals docketed therein prayer for a temporary restraining order until after the
as CA-G.R. SP No. 40393, to enjoin Judge Roura from required comment [was] submitted.
proceeding with the arraignment in Criminal Case No. 96- a. Counter-Affidavit of SPO1 Gilberto D. Malabanan.
1667(M).
b. Sinumpaang Salaysay of Vladimir Yumul y Dimatulac. On 3 May 1996, petitioners filed an Ex-Parte
Manifestation[32] with the RTC, furnishing the trial court
c. Counter-Affidavit of Francisco I. Yambao.
On 24 April 1996, Public Prosecutor Olimpio R. Datu filed a with a copy of the aforementioned resolution of the Court
Manifestation and Comment[27] with the trial court d. Counter-Affidavit of SPO2 Fortunato Mallari. of Appeals and drawing the attention of the trial court to
wherein he opposed the motion to inhibit Judge Roura; the rulings of this Court in Valdez vs. Aquilisan, (133 SCRA
e. Sinumpaang Salaysay of Aniano Magnaye.
manifested that there is nothing in the record which shows 150), Galman vs. Sandiganbayan, and Eternal Gardens
that the subject killing is qualified into murder; and f. Sinumpaang Salaysay of Leopoldo Soriano. Memorial Park Corp. vs. Court of Appeals as well as the
announced that he will no longer allow the private decision in Paul G. Roberts vs. The Court of Appeals.
g. Transcript of Stenographic Notes of the Preliminary
prosecutor to participate or handle the prosecution of
Investigation of Criminal Case No. 95-360, containing the
[the] case in view of the latters petition to inhibit Judge
testimony of:
Roura.

6
On 3 May 1996, Judge Villon issued an order resetting information. The findings and conclusions of Secretary As has been repeatedly held, to constitute treachery, two
arraignment of the accused to 20 May 1996.[33] On the Guingona read as follows: conditions must be present, to wit: (1) employment of
latter date, the YABUTs each entered a plea of not guilty. means of execution that gives the person [attacked] no
[34] opportunity to defend himself or retaliate; and (2) the
Contrary to your findings, we find that there is treachery means of execution were deliberately or consciously
that attended the killing of PO3 Dimatulac. Undisputedly, adopted (People vs. Talaver, 230 SCRA 281 [1994]). In the
Alarmed by the conduct of arraignment, petitioners filed, the victim was suddenly shot while he was descending the case at bar, these two (2) requisites are present as
on 27 May 1996, an Urgent Motion to Set Aside stairs. The attack was unexpected as the victim was established from the foregoing discussion. Hence, there
Arraignment,[35] citing the resolution of 30 April 996 of unarmed and on his way to make peace with Mayor Yabut, being a qualifying circumstance of treachery, the crime
the Court of Appeals in CA-G.R. SP No. 40393 which, inter he was unsuspecting so to speak. From the circumstances committed herein is murder, not homicide (People vs.
alia, deferred resolution on the application for a temporary surrounding his killing, PO3 Dimatulac was indeed Gapasin, 231 SCRA 728 [1994]).
restraining order until after the required comment is deprived of an opportunity to defend himself or to
submitted by the respondent; stressed that the filing of retaliate.
the information for the lesser offense of homicide was Anent the alleged participation of respondents Fortunato
clearly unjust and contrary to law in view of the Mallari and Francisco Yambao, we find sufficient evidence
unquestionable attendance of circumstances qualifying the Corollarily, we are also convinced that such mode of attack against Mallari as part of the conspiracy but not against
killing to murder; and asserted that a number of Supreme was consciously and deliberately adopted by the Yambao. As can be gleaned from the sworn-statement of
Court decisions supported suspension of the proceedings respondents to ensure the accomplishment of their Yambao, which appears to be credible, Mallari tried also to
in view of the pendency of their appeal before the DOJ. criminal objective. The admission of respondent persuade the victim to go with them, using as a reason
Malabanan is replete with details on how the principal that he (victim) was being invited by General Ventura. He
respondent, Mayor Yabut, in conspiracy with the assailant was also seen trying to fix the gun which was used in killing
On 31 May 1997, Judge Villon issued an Order[36] and others, had consciously and deliberately adopted the victim. These actuations are inconsistent with the
directing the accused to file their comment on the Urgent means to ensure the execution of the crime. According to claim that his presence at the crime scene was merely
Motion to Set Aside Arraignment within fifteen days from him, while they were on their way to the victims house, passive.
notice. Mayor Yabut already instructed Danny, the assailant, that,
Dikitan mo lang, alam no na king ano ang gagawin mo,
bahala ka na. This explains why Danny positioned himself On the other hand, we find credible the version and
In a letter[37] addressed to the Provincial Prosecutor near the stairs of the victims house armed with a handgun, explanation of Yambao. Indeed, under the obtaining
dated 7 June 1996, public respondent Secretary Teofisto such positioning was precisely adopted as a means to circumstances, Yambao had no other option but to accede
Guingona of the DOJ resolved the appeal in favor of ensure the accomplishment of their evil design and Mayor to the request of Mayor Yabut to provide transportation to
petitioners. Secretary Guingona ruled that treachery was Yabut ordered nobody else but Danny to shoot the victim the assailant. There being an actual danger to his life then,
present and directed the Provincial Prosecutor of San while descending the stairs as his position was very and having acted under the impulse of an uncontrollable
Fernando, Pampanga to amend the information filed strategic to ensure the killing of the victim. fear, reason dictates that he should be freed from criminal
against the accused from homicide to murder, and to liability.[38]
include Fortunato Mallari as accused in the amended
7
 arraignment of the accused, pending resolution of the Amended Information.[46] The Amended Information[47]
Appeal with the Secretary of Justice. merely impleaded Fortunato Mallari as one of the accused.
The YABUTs moved to reconsider the resolution,[39] citing
Section 4 of Administrative/Administration Order No. 223
of the DOJ.[40]
The YABUTs opposed[44] petitioners Manifestation and In his Order[48] of 1 August 1996, Judge Villon denied
Motion dated 1 July 1996 because they had already been petitioners motion to set aside arraignment, citing Section
arraigned and, therefore, would be placed in double 4, DOJ Department Order No. 223, and the letter of the
In an Ex-Parte Manifestation[41] dated 21 June 1996,
jeopardy; and that the public prosecutor -- not the private Secretary of Justice of 1 July 1996. Petitioners forthwith
petitioners called the trial courts attention to the
prosecutor -- had control of the prosecution of the case. moved for reconsideration[49] of the order, arguing that
resolution of the Secretary of Justice, a copy of which was
the Motion to Defer the Proceedings filed by petitioners
attached thereto. Later, in a Manifestation and Motion[42]
was meritorious and did not violate the accuseds right to
dated 1 July 1996, petitioners asked the trial court to grant
In his letter[45] dated 1 July 1996 addressed to the speedy trial; and that the DOJ had ruled that the proper
their motion to set aside arraignment. Attached thereto
Provincial Prosecutor of Pampanga, the Secretary of offense to be charged was murder and did not reverse
was a copy of the Manifestation and Motion[43] of the
Justice set aside his order to amend the information from such finding. Petitioners also cited the Solicitor Generals
Solicitor General dated 18 June 1996 filed with the Court
homicide to murder considering that the appeal was stand[50] in CA-G.R. SP No. 40393 that holding accuseds
of Appeals in CA-G.R. SP No. 40393 wherein the Solicitor
rendered moot and academic by the arraignment of the arraignment in abeyance was proper under the
General joined cause with petitioners and prayed that in
accused for homicide and their having entered their pleas circumstances. Finally, petitioners contended that in
the better interest of justice, [the] Petition for Prohibition
of not guilty. The Secretary stated: proceeding with the arraignment despite knowledge of a
be GRANTED and a writ of prohibition be ISSUED
petition for prohibition pending before the Court of
forthwith. In support of said prayer, the Solicitor General
Appeals, the trial court violated Section 3(d), Rule 71 of the
argued:
Considering that Santiago Yabut, Servillano Yabut and Rules of Court on indirect contempt. The YABUTs opposed
Martin Yabut had already been arraigned on May 20, 1996 the motion on the ground that it raised no argument
and had pleaded not guilty to the charge of homicide, as which had not yet been resolved.[51]
2. There is merit to the cause of petitioners. If the
shown by a copy of the court order dated May 20, 1996,
Secretary of Justice would find their Appeal meritorious,
the petition for review insofar as the respondents-Yabut
the Provincial Prosecutor would be directed to upgrade
are concerned has been rendered moot and academic. On 3 September 1996, petitioners filed a Motion to Defer
the Information to Murder and extreme prejudice if not
Arraignment of Accused Fortunato Mallari,[52] which the
gross injustice would thereby have been avoided.
trial court granted in view of petitioners motion for
However, the Secretary reiterated that Fortunato Mallari reconsideration of the courts order denying petitioners
should be included in the information for homicide. motion to set aside private respondents arraignment.[53]
3 Consequently, the undersigned counsel interpose no As expected, Mallari moved to reconsider the trial courts
objection to the issuance of a writ of prohibition enjoining order and clamored for consistency in the trial courts
respondent Judge from holding further proceedings in rulings.[54]
Criminal Case No. 96-1667-M, particularly in holding the On 30 July 1996, Public Prosecutor Jaime Bustos filed a
Motion for Leave to Amend Information and to Admit

8
In an order[55] dated 15 October 1996, Judge Villon denying their Motion to Set Aside Arraignment; set aside the appeal filed with the Secretary of Justice and request
denied reconsideration of the order denying petitioners arraignment of private respondents; order that no further to defer any action on the case.
motion to set aside arraignment, citing the YABUTs right to action be taken by any court in Criminal Case No. 96-
a speedy trial and explaining that the prosecution of an 1667(M) until this petition is resolved; and order
offense should be under the control of the public respondents Secretary of Justice and the prosecutors (4) The Office of the Public Prosecutor of Pampanga
prosecutor, whereas petitioners did not obtain the concerned to amend the information from homicide to disallowed the private prosecutor from further
conformity of the prosecutor before they filed various murder. participating in the case.
motions to defer proceedings. Considering said order,
Judge Villon deemed accused Mallaris motion for
reconsideration moot and academic. [56] Petitioners insist that the killing of PO3 Virgilio Dimatulac (5) Judge Roura denied the motion to defer proceedings
was attended by treachery since private respondents and declared in open court that there was no prima facie
tricked the victim into coming out of his house and then case for murder, notwithstanding the pendency of
On 16 October 1996, the Court of Appeals promulgated its shot him while he was going down the stairs. There was, petitioners appeal with respondent Secretary of Justice.
decision[57] in CA-G.R. SP No. 40393 dismissing the petitioners claim, an orchestrated effort on the part of
petition therein for having become moot and academic in [private respondents] to manipulate the rules on
view of Judge Rouras voluntary inhibition, the arraignment administrative appeals with the end in view of evading (6) Even before receipt by petitioners of Judge Rouras
of the YABUTs and the dismissal, by the Secretary of prosecution for the [non-bailable] offense of murder, as order inhibiting himself and the order regarding the
Justice, of petitioners appeal as it had been mooted by shown by the following events or circumstances: transfer of the case to Branch 54, public respondent Judge
said arraignment. Villon set the case for arraignment and, without notice to
petitioners, forthwith arraigned the accused on the
(1) Assistant Provincial Prosecutor Alfonso-Flores information for homicide on 20 May 1996, despite the
Judge Villon was later detailed to Branch 24 of the downgraded the nature of the crime committed to pendency of the petition for prohibition before the Court
Regional Trial Court of Manila, and Judge Roura was homicide, a bailable offense, on strength of a motion for of Appeals and of the appeal before the DOJ.
ordered by the Supreme Court to preside over cases reinvestigation filed by the YABUTs who had not yet been
pending in Branch 54 of the Regional Trial Court of arrested.
Macabebe, Pampanga, which was previously presided over (7) The Pampanga Provincial Prosecutors Office did not
by Judge Villon.[58] Judge Roura informed the Office of the object to the arraignment nor take any action to prevent
Court Administrator and this Court that he had already (2) Respondent Mayor and his companions returned to further proceedings on the case despite knowledge of the
inhibited himself from hearing Criminal Case No. 96- Minalin after the killing and went into hiding for four (4) pendency of the appeal.
1667(M).[59] months until the offense charged was downgraded.

(8) The Provincial Prosecutor did not comply with the

On 28 December 1996, petitioners filed the instant (3) The information for homicide was nevertheless filed resolution of 7 June 1996 of the Secretary of Justice
Petition for Certiorari/Prohibition and Mandamus. They despite notice to the Office of the Provincial Prosecutor of
urge this Court to reverse the order of respondent Judge
9
directing the amendment of the information to charge the In their comment, private respondents contend that no As regards DOJ Department Order No. 223, private
crime of murder. sufficient legal justification exists to set aside private respondents theorize that appeal by complainants is
respondents' arraignment, it having already been reset allowed only if the complaint is dismissed by the
twice from 12 April 1996 to 3 May 1996, due to petitioners prosecutor and not when there is a finding of probable
Petitioners argue that in light of Roberts, Jr. v. Court of pending appeal with the DOJ; and from 3 May 1996 to 20 cause, in which case, only the accused can appeal. Hence,
Appeals,[60] respondent Judge acted in excess of his May 1996, due to the transfer of this case to Branch 54. petitioners appeal was improper.
jurisdiction in proceeding with private respondents' Moreover, as of the latter date, the DOJ had not yet
arraignment for homicide and denying petitioners' motion resolved petitioners appeal and the DOJ did not request
to set aside arraignment. Moreover, although respondent that arraignment be held in abeyance, despite the fact that Finally, private respondents stress the fact that petitioners
Judge Villon was not the respondent in CA-G.R. SP No. petitioners appeal had been filed as early as 23 February never appealed the withdrawal by the public prosecutor of
40393, he should have deferred the proceedings just the 1996, at least 86 days prior to private respondents the private prosecutor's authority to handle the case.
same as the very issue in said case was whether or not the arraignment. They point out that petitioners did not move
RTC could proceed with the arraignment despite the to reconsider the RTC's 26 March 1996 denial of the
pending review of the case by respondent Secretary of Motion to Defer, opting instead for Judge Rouras recusal In its comment for the public respondents, the Office of
Justice. Further, Judge Villon unjustly invoked private and recourse to the Court of Appeals, and as no restraining the Solicitor General (OSG) prays that the petition be
respondents right to a speedy trial, after a lapse of barely order was issued by the Court of Appeals, it was but denied because: (a) in accordance with Section 4 of DOJ
three (3) months from the filing of the information on 23 proper for respondent Judge to proceed with the Order No. 223, upon arraignment of the accused, the
February 1996; overlooked that private respondents were arraignment of private respondents, to which the public appeal to the Secretary of Justice shall be dismissed motu
estopped from invoking said right as they went into hiding and private prosecutors did not object. proprio; (b) the filing of the information for homicide was
after the killing, only to resurface when the charge was in compliance with the directive under Section 4(2), D.O.
reduced to homicide; and failed to detect the Provincial No. 223, i.e., an appeal or motion for reinvestigation from
Prosecutor's bias in favor of private respondents. Judge Private respondents further argue that the decision of a resolution finding probable cause shall not hold the filing
Villon should have been more circumspect as he knew that respondent Secretary, involving as it did the exercise of of the information in court; (c) the trial court even
by proceeding with the arraignment, the appeal with the discretionary powers, is not subject to judicial review. accommodated petitioners by initially deferring
DOJ would be rendered technically nugatory. Under the principle of separation of powers, petitioners' arraignment pending resolution by the Court of Appeals of
recourse should have been to the President. While as the petition for prohibition, and since said Court did not
regards petitioners plea that the Secretary be compelled issue any restraining order, arraignment was properly had;
Finally, petitioners submit that the DOJ rule prohibiting to amend the information from homicide to murder, and (d) reliance on Roberts is misplaced, as there, accused
appeals from resolutions of prosecutors to the Secretary of private respondents submit that mandamus does not lie, Roberts and others had not been arraigned and
Justice once the accused had already been arraigned as the determination as to what offense was committed is respondent Judge had ordered the indefinite
applies only to instances where the appellants are the a prerogative of the DOJ, subject only to the control of the postponement of the arraignment pending resolution of
accused, since by submitting to arraignment, they President. their petitions before the Court of Appeals and the
voluntarily abandon their appeal. Supreme Court.

10
We now consider the issues enumerated at the outset of without first demanding that they surrender because of have been caused to the YABUTs if it were filed even later
this ponencia. the standing warrants of arrest against them. In short, for the YABUTs were still at large; in fact, they filed their
Alfonso-Reyes allowed the YABUTs to make a mockery of bonds of P20,000.00 each only after the filing of the
the law in order that they gain their provisional liberty Information. If Alfonso-Flores was extremely generous to
Plainly, the proceedings below were replete with pending trial and be charged with the lesser offense of the YABUTs, no compelling reason existed why she could
procedural irregularities which lead us to conclude that homicide. not afford the offended parties the same courtesy by at
something had gone awry in the Office of the Provincial least waiting for instructions from the Secretary of Justice
Prosecutor of Pampanga resulting in manifest advantage in view of the appeal, if she were unwilling to voluntarily
to the accused, more particularly the YABUTs, and grave Second, Alfonso-Reyes recommended a bond of only ask the latter for instructions. Clearly, under the
prejudice to the State and to private complainants, herein P20,000.00 for the YABUTs and co-accused Danny, despite circumstances, the latter course of action would have been
petitioners. the fact that they were charged with homicide and they the most prudent thing to do.
were, at the time, fugitives from justice for having avoided
service of the warrant of arrest issued by the MCTC and
First, warrants for the arrest of the YABUTs were issued by having failed to voluntarily surrender. Fifth, as if to show further bias in favor of the YABUTs, the
the MCTC, with no bail recommended for their temporary Office of the Provincial Prosecutor of Pampanga did not
liberty. However, for one reason or another undisclosed in even bother to motu proprio inform the trial court that the
the record, the YABUTs were not arrested; neither did they Third, Alfonso-Reyes was fully aware of the private private prosecution had appealed from the resolution of
surrender. Hence, they were never brought into the prosecutions appeal to the DOJ from her resolution. She Alfonso-Flores and had sought, with all the vigour it could
custody of the law. Yet, Asst. Provincial Fiscal Alfonso- could not have been ignorant of the fact that the appeal muster, the filing of an information for murder, as found
Reyes, either motu proprio or upon motion of the YABUTs, vigorously assailed her finding that there was no qualifying by the MCTC and established by the evidence before it.
conducted a reinvestigation. Since said accused were at circumstance attending the killing, and that the private
large, Alfonso-Reyes should not have done so. While it prosecution had convincing arguments to support the
may be true that under the second paragraph of Section 5, appeal. The subsequent resolution of the Secretary of Unsatisfied with what had been done so far to
Rule 112 of the Rules of Court, the provincial prosecutor Justice confirmed the correctness of the private accommodate the YABUTs, the Office of the Provincial
may disagree with the findings of the judge who prosecutions stand and exposed the blatant errors of Prosecutor did not even have the decency to agree to
conducted the preliminary investigation, as here, this Alfonso-Reyes. defer arraignment despite its continuing knowledge of the
difference of opinion must be on the basis of the review of pendency of the appeal. This amounted to defiance of the
the record and evidence transmitted by the judge. Were DOJs power of control and supervision over prosecutors, a
that all she did, as she had no other option under the Fourth, despite the pendency of the appeal, Alfonso-Reyes matter which we shall later elaborate on. Moreover, in an
circumstances, she was without any other choice but to filed the Information for homicide on 28 February 1996. It unprecedented move, the trial prosecutor, Olimpio Datu,
sustain the MCTC since the YABUTs and all other accused, is interesting to note that while the information was dated had the temerity, if not arrogance, to announce that he
except Francisco Yambao, waived the filing of their 29 January 1996, it was approved by the Provincial will no longer allow the private prosecutor to participate
counter-affidavits. Then, further stretching her Prosecutor only on 27 February 1996. This simply means or handle the prosecution of [the] case simply because the
magnanimity in favor of the accused, Alfonso-Reyes that the Office of the Prosecutor was not, initially, in a private prosecution had asked for the inhibition of Judge
allowed the YABUTs to submit their counter-affidavits hurry to file the Information. No undue prejudice could Roura. Said prosecutor forgot that since the offended
11
parties here had not waived the civil action nor expressly control and supervision over said prosecutors; and who xxx xxx xxx
reserved their right to institute it separately from the may thus affirm, nullify, reverse or modify their rulings.
criminal action, then they had the right to intervene in the
criminal case pursuant to Section 16 of Rule 110 of the Section 37. The provisions of the existing law to the
Rules of Court. Section 39, Chapter 8, Book IV in relation to Section[s] 5, 8, contrary notwithstanding, whenever a specific power,
and 9, Chapter 2, Title III of the Code gives the secretary of authority, duty, function, or activity is entrusted to a chief
justice supervision and control over the Office of the Chief of bureau, office, division or service, the same shall be
It is undebatable that petitioners had the right to appeal to Prosecutor and the Provincial and City Prosecution Offices. understood as also conferred upon the proper Department
the DOJ from the resolution of Alfonso-Flores. The last The scope of his power of supervision and control is Head who shall have authority to act directly in pursuance
paragraph of Section 4 of Rule 112 of the Rules of Court delineated in Section 38, paragraph 1, Chapter 7, Book IV thereof, or to review, modify, or revoke any decision or
provides: of the Code: action of said chief of bureau, office, division or service.

If upon petition by a proper party, the Secretary of Justice (1) Supervision and Control. -- Supervision and control Supervision and control of a department head over his
reverses the resolution of the provincial or city fiscal or shall include authority to act directly whenever a specific subordinates have been defined in administrative law as
chief state prosecutor, he shall direct the fiscal concerned function is entrusted by law or regulation to a subordinate; follows:
to file the corresponding information without conducting direct the performance of duty; restrain the commission of
another preliminary investigation or to dismiss or move for acts; review, approve, reverse or modify acts and decisions
the dismissal of the complaint or information. of subordinate officials or units; x x x x. In administrative law, supervision means overseeing or the
power or authority of an officer to see that subordinate
officers perform their duties. If the latter fail or neglect to
It is clear from the above, that the proper party referred to Supplementing the aforequoted provisions are Section 3 of fulfill them, the former may take such action or step as
therein could be either the offended party or the accused. R.A. 3783 and Section 37 of Act 4007, which read: prescribed by law to make them perform such duties.
Control, on the other hand, means the power of an officer
to alter or modify or nullify or set aside what a subordinate
More importantly, an appeal to the DOJ is an invocation of Section 3. x x x x officer had done in the performance of his duties and to
the Secretarys power of control over prosecutors. Thus, in substitute the judgment of the former for that of the
Ledesma v. Court of Appeals,[61] we emphatically held: latter.
The Chief State Prosecutor, the Assistant Chief State
Prosecutors, the Senior State Prosecutors, and the State
Decisions or resolutions of prosecutors are subject to Prosecutors shall x x x perform such other duties as may Review as an act of supervision and control by the justice
appeal to the secretary of justice who, under the Revised be assigned to them by the Secretary of Justice in the secretary over the fiscals and prosecutors finds basis in the
Administrative Code,[62] exercises the power of direct interest of public service. doctrine of exhaustion of administrative remedies which
holds that mistakes, abuses or negligence committed in
the initial steps of an administrative activity or by an
12
administrative agency should be corrected by higher allowed only in cases of dismissal of the complaint, in Crespo v. Mogul,[64] reiterated in Roberts v. Court of
administrative authorities, and not directly by courts. As a otherwise the last paragraph of Section 4, Rule 112, Rules Appeals,[65] forecloses the power or authority of the
rule, only after administrative remedies are exhausted may of Court would be meaningless. Secretary of Justice to review resolutions of his
judicial recourse be allowed. subordinates in criminal cases despite an information
already having been filed in court. The Secretary of Justice
We cannot accept the view of the Office of the Solicitor is only enjoined to refrain, as far as practicable, from
DOJ Order No. 223 of 30 June 1993 recognizes the right of General and private respondents that Section 4 of DOJ entertaining a petition for review or appeal from the
both the offended parties and the accused to appeal from Department Order No. 223 is the controlling rule; hence, action of the prosecutor once a complaint or information is
resolutions in preliminary investigations or pursuant to the second paragraph thereof, the appeal of filed in court. In any case, the grant of a motion to dismiss,
reinvestigations, as provided for in Section 1 and Section 4, petitioners did not hold the filing of the information. As which the prosecution may file after the Secretary of
respectively. Section 1 thereof provides, thus: stated above, Section 4 applies even to appeals by the Justice reverses an appealed resolution, is subject to the
respondents or accused. The provision reads: discretion of the court. In Roberts we went further by
saying that Crespo could not have foreclosed said power
SECTION 1. What May Be Appealed. -- Only resolutions of or authority of the Secretary of Justice without doing
the Chief State Prosecutor/Regional State SEC. 4. Non-appealable cases. Exceptions. - No appeal may violence to, or repealing, the last paragraph of Section 4,
Prosecutor/Provincial or City Prosecutor dismissing a be taken from a resolution of the Chief State Rule 112 of the Rules of Court which is quoted above.
criminal complaint may be the subject of an appeal to the Prosecutor/Regional State Prosecutor/Provincial or City
Secretary of Justice except as otherwise provided in Prosecutor finding probable cause except upon a showing
Section 4 hereof. of manifest error or grave abuse of discretion. Indubitably then, there was, on the part of the public
Notwithstanding the showing of manifest error or grave prosecution, indecent haste in the filing of the information
abuse of discretion, no appeal shall be entertained where for homicide, depriving the State and the offended parties
While the section speaks of resolutions dismissing a the appellant had already been arraigned. If the appellant of due process.
criminal complaint, petitioners herein were not barred is arraigned during the pendency of the appeal, said
from appealing from the resolution holding that only appeal shall be dismissed motu proprio by the Secretary of
homicide was committed, considering that their complaint Justice. As to the second issue, we likewise hold that Judge Roura
was for murder. By holding that only homicide was acted with grave abuse of discretion when, in his order of
committed, the Provincial Prosecutors Office of Pampanga 26 March 1996,[66] he deferred resolution on the motion
effectively dismissed the complaint for murder. An appeal/motion for reinvestigation from a resolution for a hold departure order until such time that all the
Accordingly, petitioners could file an appeal under said finding probable cause, however, shall not hold the filing accused who are out on bail are arraigned and denied the
Section 1. To rule otherwise would be to forever bar of the information in court. (underscoring supplied) motion to defer proceedings for the reason that the
redress of a valid grievance, especially where the private prosecution has not shown any indication that
investigating prosecutor, as in this case, demonstrated [the] appeal was given due course by the Secretary of
what unquestionably appeared to be unmitigated bias in The underlined portion indisputably shows that the section Justice. Neither rhyme nor reason or even logic, supports
favor of the accused. Section 1 is not to be literally applied refers to appeals by respondents or accused. So we held in the ground for the deferment of the first motion. Precisely,
in the sense that appeals by the offended parties are Marcelo v. Court of Appeals[63] that nothing in the ruling immediate action thereon was called for as the accused
13
were out on bail and, perforce, had all the opportunity to not have helped but notice: (a) the motion to defer further within a specified time. Given the totality of
leave the country if they wanted to. To hold that proceedings; (2) the order of Judge Roura giving circumstances, Judge Villon should have heeded our
arraignment is a prerequisite to the issuance of a hold petitioners ten days within which to file a petition with the statement in Marcelo[69] that prudence, if not wisdom, or
departure order could obviously defeat the purpose of said Court of Appeals; (3) the fact of the filing of such petition at least, respect for the authority of the prosecution
order. As to the second motion, Judge Roura was fully in CA-G.R. SP No. 40393; (4) the resolution of the Court of agency, dictated that he should have waited for the
aware of the pendency of petitioners appeal with the DOJ, Appeals directing respondents to comment on the petition resolution of the appeal then pending before the DOJ. All
which was filed as early as 23 February 1996. In fact, he and show cause why the application for a writ of told, Judge Villon should not have merely acquiesced to
must have taken that into consideration when he set preliminary injunction should not be granted and deferring the findings of the public prosecutor.
arraignment of the accused only on 12 April 1996, and on resolution of the application for a temporary restraining
that date, after denying petitioners motion to reconsider order until after the required comment was filed, which
the denial of the motion to defer proceedings, he further indicated a prima facie showing of merit; (5) the motion to We do not then hesitate to rule that Judge Villon
reset arraignment to 3 May 1996 and gave petitioners ten inhibit Judge Roura precisely because of his prejudgment committed grave abuse of discretion in rushing the
(10) days within which to file a petition for certiorari to that the crime committed was merely homicide; (6) Judge arraignment of the YABUTs on the assailed information for
question his denial of the motion to defer and of the order Rouras subsequent inhibition; (7) various pieces of homicide. Again, the State and the offended parties were
denying the reconsideration. In any event, the better part documentary evidence submitted by petitioners on 30 deprived of due process.
of wisdom suggested that, at the very least, he should April 1996 supporting a charge of murder, not homicide;
have asked petitioners as regards the status of the appeal and (8) most importantly, the pending appeal with the
or warned them that if the DOJ would not decide the DOJ. Up to the level then of Judge Villon, two pillars of the
appeal within a certain period, then arraignment would criminal justice system failed in this case to function in a
proceed. manner consistent with the principle of accountability
All the foregoing demanded from any impartial mind, inherent in the public trust character of a public office.
especially that of Judge Villon, a cautious attitude as these Judges Roura and Villon and prosecutors Alfonso-Flores
Petitioners did in fact file the petition with the Court of were unmistakable indicia of the probability of a and Datu need be reminded that it is in the public interest
Appeals on 19 April 1996 and, at the same time, moved to miscarriage of justice should arraignment be precipitately that every crime should be punished[70] and judges and
inhibit Judge Roura. These twin moves prompted Judge held. However, Judge Villon cursorily ignored all this. prosecutors play a crucial role in this regard for theirs is
Roura to voluntarily inhibit himself from the case on 29 While it may be true that he was not bound to await the the delicate duty to see justice done, i.e., not to allow the
April 1996[67] and to transfer the case to the branch DOJs resolution of the appeal, as he had, procedurally guilty to escape nor the innocent to suffer.[71]
presided by public respondent Judge Villon. The latter speaking, complete control over the case and any
received the record of the case on 30 April 1996. From that disposition thereof rested on his sound discretion,[68] his
time on, however, the offended parties did not receive any judicial instinct should have led him to peruse the Prosecutors must never forget that, in the language of
better deal. Acting with deliberate dispatch, Judge Villon documents submitted on 30 April 1996 and to initially Suarez v. Platon,[72] they are the representatives not of an
issued an order on 3 May 1996 setting arraignment of the determine, for his own enlightenment with serving the ordinary party to a controversy, but of a sovereignty
accused on 20 May 1996. If Judge Villon only perused the ends of justice as the ultimate goal, if indeed murder was whose obligation to govern impartially is as compelling as
record of the case with due diligence, as should be done the offense committed; or, he could have directed the its obligation to govern at all; and whose interest,
by anyone who has just taken over a new case, he could private prosecutor to secure a resolution on the appeal therefore, in a criminal prosecution is not that it shall win
14
every case but that justice be done. As such, they are in a right of the State and offended party to due process of
peculiar and every definite sense the servants of the law, law.[78]
The Supreme Court cannot permit such a sham trial and
whose two-fold aim is that guilt shall not escape or
verdict and travesty of justice to stand unrectified. The
innocence suffer.
courts of the land under its aegis are courts of law and
Indeed, for justice to prevail, the scales must balance;
justice and equity. They would have no reason to exist if
justice is not to be dispensed for the accused alone. The
they were allowed to be used as mere tools of injustice,
Prosecutors are charged with the defense of the interests of society and the offended parties which have
deception and duplicity to subvert and suppress the truth,
community aggrieved by a crime, and are expected to been wronged must be equally considered. Verily, a
instead of repositories of judicial power whose judges are
prosecute the public action with such zeal and vigor as if verdict of conviction is not necessarily a denial of justice;
sworn and committed to render impartial justice to all
they were the ones personally aggrieved, but at all times and an acquittal is not necessarily a triumph of justice, for,
alike who seek the enforcement or protection of a right or
cautious that they refrain from improper methods to the society offended and the party wronged, it could
the prevention or redress of a wrong, without fear or favor
designed to secure a wrongful conviction.[73] With them also mean injustice.[79] Justice then must be rendered
and removed from the pressures of politics and prejudice.
lies the duty to lay before the court the pertinent facts at even-handedly to both the accused, on one hand, and the
the judges disposal with strict attention to punctilios, State and offended party, on the other.
thereby clarifying contradictions and sealing all gaps in the
We remind all members of the pillars of the criminal
evidence, with a view to erasing all doubt from the courts
justice system that theirs is not a mere ministerial task to
mind as to the accuseds innocence or guilt. In this case, the abuse of discretion on the part of the
process each accused in and out of prison, but a noble
public prosecution and Judges Roura and Villon was gross,
duty to preserve our democratic society under a rule of
grave and palpable, denying the State and the offended
law.
The judge, on the other hand, should always be imbued parties their day in court, or in a constitutional sense, due
with a high sense of duty and responsibility in the process. As to said judges, such amounted to lack or excess
discharge of his obligation to promptly and properly of jurisdiction, or that their court was ousted of the
Anent the third issue, it was certainly grave error for the
administer justice.[74] He must view himself as a priest, jurisdiction in respect thereto, thereby nullifying as having
DOJ to reconsider its 7 June 1996 resolution, holding that
for the administration of justice is akin to a religious been done without jurisdiction, the denial of the motion to
murder was committed and directing the Provincial
crusade. Thus, exerting the same devotion as a priest in defer further hearings, the denial of the motion to
Prosecutor to accordingly amend the information, solely
the performance of the most sacred ceremonies of reconsider such denial, the arraignment of the YABUTs and
on the basis of the information that the YABUTs had
religious liturgy, the judge must render service with their plea of not guilty.
already been arraigned. In so doing, the DOJ relinquished
impartiality commensurate with the public trust and
its power of control and supervision over the Provincial
confidence reposed in him.[75] Although the
Prosecutor and the Assistant Provincial Prosecutors of
determination of a criminal case before a judge lies within These lapses by both the judges and prosecutors
Pampanga; and meekly surrendered to the latters
his exclusive jurisdiction and competence,[76] his concerned cannot be taken lightly. We must remedy the
inappropriate conduct or even hostile attitude, which
discretion is not unfettered, but rather must be exercised situation before the onset of any irreversible effects. We
amounted to neglect of duty or conduct prejudicial to the
within reasonable confines.[77] The judges action must thus have no other recourse, for as Chief Justice Claudio
best interest of the service, as well as to the undue haste
not impair the substantial rights of the accused, nor the Teehankee pronounced in Galman v. Sandiganbayan:[80]
of Judge Roura and Villon in respect of the arraignment of

15
the YABUTs. The sins of omission or commission of said It is settled that when the State is deprived of due process
prosecutors and judges resulted, in light of the finding of in a criminal case by reason of grave abuse of discretion on
SO ORDERED.
the DOJ that the crime committed was murder, in the part of the trial court, the acquittal of the accused[81]
unwarranted benefit to the YABUTs and gross prejudice to or the dismissal of the case[82] is void, hence double
the State and the offended parties. The DOJ should have jeopardy cannot be invoked by the accused. If this is so in
courageously exercised its power of control by taking those cases, so must it be where the arraignment and plea Bellosillo, Vitug, Panganiban, and Quisumbing, JJ., concur.
bolder steps to rectify the shocking mistakes so far of not guilty are void, as in this case as above discussed.
committed and, in the final analysis, to prevent further
injustice and fully serve the ends of justice. The DOJ could Preliminary Investigation in Criminal Cases
have, even if belatedly, joined cause with petitioners to set WHEREFORE, the petition is GRANTED. The orders of Judge
aside arraignment. Further, in the exercise of its Reynaldo Roura of 26 March 1996 denying the Motion to
disciplinary powers over its personnel, the DOJ could have Defer Proceedings and of 12 April 1996 denying the By: Atty.Fred | September 17, 2007 in Criminal Law,
directed the public prosecutors concerned to show cause motion to reconsider the denial of said Motion to Defer Litigation
why no disciplinary action should be taken against them Proceedings, and the orders of respondent Judge
54 Replies | Related posts at the bottom of article
for neglect of duty or conduct prejudicial to the best Sesinando Villon of 3 May 1996 resetting the arraignment
interest of the service in not, inter alia, even asking the to 20 May 1998 and of 15 October 1996 denying the
trial court to defer arraignment in view of the pendency of Motion to Set Aside Arraignment in Criminal Case No. 96-
the appeal, informing the DOJ, from time to time, of the At the outset, let’s remove any possibility of
1667(M) are declared VOID and SET ASIDE. The
status of the case, and, insofar as prosecutor Datu was misunderstanding that may be caused by the title of this
arraignment of private respondents Mayor Santiago Yabut,
concerned, in disallowing the private prosecutor from post. The reference to a “preliminary investigation in
Servillano Yabut and Martin Yabut and their separate pleas
further participating in the case. criminal cases” does not imply that there’s a preliminary
of not guilty are likewise declared VOID and SET ASIDE.
investigation in civil cases – there’s none. Preliminary
Furthermore, the order of public respondent Secretary of
investigation is a part of the rules of criminal procedure.
Justice of 1 July 1996 is SET ASIDE and his order of 7 June
Simply stated, it’s available ONLY in criminal cases.
Finally, the DOJ should have further inquired into the 1996 REINSTATED.
vicissitudes of the case below to determine the regularity
of arraignment, considering that the appeal was received
by the DOJ as early as 23 February 1996. What is Preliminary Investigation?
The Office of the Provincial Prosecutor of Pampanga is
DIRECTED to comply with the order (letter) of the
Secretary of Justice of 7 June 1996 by forthwith filing with
We then rule that the equally hasty motu proprio the trial court the amended information for murder. Preliminary investigation is an inquiry or proceeding to
reconsideration of the 7 June 1996 resolution of the DOJ Thereafter the trial court shall proceed in said case with all determine whether there is sufficient ground to engender
was attended with grave abuse of discretion. reasonable dispatch. a well-founded belief that a crime has been committed
and the respondent is probably guilty thereof, and should
be held for trial.
No pronouncement as to costs.
16
What is the Nature and Purpose of preliminary accusation of a crime, from the trouble, expense and the complaint or information in court without a
investigation? anxiety of a public trial, and also to protect the state from preliminary investigation, the accused may, within five (5)
useless and expensive trials. A preliminary investigation days from the time he learns of its filing, ask for a
serves not only the purposes of the State. More important, preliminary investigation.
The determination of probable cause during a preliminary it is a part of the guarantees of freedom and fair play
investigation is an executive function, the correctness of which are birthrights of all who live in our country. It is
the exercise of which is a matter that the trial court itself therefore, imperative upon the fiscal or the judge as the Who are the officers authorized to conduct preliminary
does not and may not be compelled to pass upon. case may be, to relieve the accused from the pain of going investigations?
through a trial once it is ascertained that the evidence is
insufficient to sustain a prima facie case or that no
In a preliminary investigation, the investigating prosecutor probable cause exists to form a sufficient belief as to the The following may conduct preliminary investigations:
makes a determination if there’s a probable cause, which guilt of the accused. The judge or fiscal, therefore, should
is the existence of such facts and circumstances as would not go on with the prosecution in the hope that some
excite the belief, in a reasonable mind, acting on the facts credible evidence might later turn up during trial for this (a) Provincial or City Prosecutors and their assistants;
within the knowledge of the prosecutor, that the person would be in flagrant violation of a basic right which the
charged was guilty of the crime for which he was courts are created to uphold. (Salonga vs. Cruz Paño) (b) Judges of the Municipal Trial Courts and Municipal
prosecuted. It has been explained as a reasonable Circuit Trial Courts;
presumption that a matter is, or may be, well founded, (c) National and Regional State Prosecutors; and
such a state of facts in the mind of the prosecutor as When is preliminary investigation required?
would lead a person of ordinary caution and prudence to (d) Other officers as may be authorized by law.
believe, or entertain an honest or strong suspicion, that a
thing is so. The term does not mean “actual and positive A preliminary investigation is required to be conducted
cause” nor does it import absolute certainty. It is merely before the filing of a complaint or information for an What are the basic steps in preliminary investigation?
based on opinion and reasonable belief. Thus, a finding of offense where the penalty prescribed by law is at least
probable cause does not require an inquiry into whether four (4) years, two (2) months and one (1) day, without
there is sufficient evidence to procure a conviction. It is regard to the fine. The basic steps (further discussed in the subsequent
enough that it is believed that the act or omission paragraphs) in preliminary investigation are:
complained of constitutes the offense charged, as there is
a trial for the reception of evidence of the prosecution in A preliminary investigation is not required in cases of
support of the charge. “warrantless arrests.” When a person is lawfully arrested 1. Filing of the Complaint-Affidavit.
without a warrant involving an offense which requires a
2. Issuance of subpoena by the investigating prosecutor to
preliminary investigation, the complaint or information
the respondent.
The purpose of a preliminary investigation is to secure the may be filed by a prosecutor without need of such
innocent against hasty, malicious and oppressive investigation provided an inquest has been conducted in 3. Filing of Counter-Affidavit by the respondent.
prosecution, and to protect him from an open and public accordance with existing rules. However, after the filing of
17
4. If allowed by the prosecutor, filing of Reply-Affidavit (by subpoena to the respondent attaching to it a copy of the investigating office shall resolve the complaint based on
the complainant) and Rejoinder-Affidavit (by the complaint and its supporting affidavits and documents. the evidence presented by the complainant. Within ten
respondent). (10) days after the investigation, the investigating officer
shall determine whether or not there is sufficient ground
5. Resolution.
I haven’t encountered any case where the investigating to hold the respondent for trial.
prosecutor dismissed the case prior to the issuance of the
subpoena. Moreover, in practice, the complaint and the
What are the requirements in filing the Complaint-
annexes are not usually attached to the subpoena, but are This is the reason why, even in cases where a preliminary
Affidavit?
provided to the respondent during the initial stage. investigation is required, it’s entrely possible that a
warrant of arrest may be isued without the
respondent/accused being informed about or having
The complaint shall state the address of the respondent participated in a preliminary investigation. So, don’t
How is the Counter-Affidavit submitted by the
and shall be accompanied by the affidavits of the disregard a subpoena in a preliminary investigation.
respondent?
complainant and his witnesses, as well as other supporting
documents to establish probable cause. They shall be in
such number of copies as there are respondents, plus two
Within ten (10) days from receipt of the subpoena with the How is the resolution prepared?
(2) copies for the official file. The affidavits shall be
complaint and supporting affidavits and documents, the
subscribed and sworn to before any prosecutor or
respondent shall submit his counter-affidavit and that of
government official authorized to administer oath, or, in
his witnesses and other supporting documents relied upon If the investigating prosecutor finds cause to hold the
their absence or unavailability, before a notary public,
for his defense. The counter-affidavits shall be subscribed respondent for trial, he shall prepare the resolution and
each of whom must certify that he personally examined
and sworn to and certified before the investigating information. He shall certify under oath in the information
the affiants and that he is satisfied that they voluntarily
prosecutor (which means that the respondent must that he, or as shown by the record, an authorized officer,
executed and understood their affidavits.
generally be present during the submission of the counter- has personally examined the complainant and his
affidavit), with copies furnished to the complainant. The witnesses; that there is reasonable ground to believe that
respondent is not be allowed to file a motion to dismiss in a crime has been committed and that the accused is
The complaint is also generally required to pay filing fees.
lieu of a counter-affidavit. probably guilty thereof; that the accused was informed of
the complaint and of the evidence submitted against him;
and that he was given an opportunity to submit
What actions are taken by the investigating prosecutor controverting evidence. Otherwise, he shall recommend
Can the investigating prosecutor resolve the complaint if
after the complaint is raffled to him/her? the dismissal of the complaint.
the respondent does not appear?

Within ten (10) days after the filing of the complaint, the Within five (5) days from his resolution, he shall forward
Yes. If the respondent cannot be subpoenaed, or if
investigating officer shall either dismiss it if he finds no the record of the case to the provincial or city prosecutor
subpoenaed, does not submit counter-affidavits, the
ground to continue with the investigation, or issue a or chief state prosecutor, or to the Ombudsman or his
18
deputy in cases of offenses cognizable by the What is the procedure if the preliminary investigation is Theory of Relativity
Sandiganbayan in the exercise of its original jurisdiction. conducted by a judge?
The Anti-Rape Law of 1997
They shall act on the resolution within ten (10) days from
their receipt thereof and shall immediately inform the Revised Rule on Children in Conflict with the Law
parties of such action. The procedure is basically the same as described above.
Criminal Complaints and Damages from Malicious
Within ten (10) days after the preliminary investigation,
Prosecution
the investigating judge shall transmit the resolution of the
Can the Information be filed without the written authority case to the provincial or city prosecutor, or to the Post navigation
of the proper authorities? Ombudsman or his deputy in cases of offenses cognizable
by the Sandiganbayan in the exercise of its original
jurisdiction, for appropriate action. The resolution shall ← People of the Philippines vs. Joseph Ejercito Estrada, et
No complaint or information may be filed or dismissed by state the findings of facts and the law supporting his al. (Sandiganbayan, Criminal Case No. 26558 [for Plunder],
an investigating prosecutor without the prior written action, together with the record of the case which shall 12 September 2007) Marriage Settlement (Prenuptial
authority or approval of the provincial or city prosecutor or include: (a) the warrant, if the arrest is by virtue of a Agreement) and Introduction to Property Relations in
chief state prosecutor or the Ombudsman or his deputy. warrant; (b) the affidavits, counter-affidavits and other Marriage →
supporting evidence of the parties; (c) the undertaking or
bail of the accused and the order for his release; (d) the 54 thoughts on “Preliminary Investigation in Criminal
transcripts of the proceedings during the preliminary Cases”
Where the investigating prosecutor recommends the
dismissal of the complaint but his recommendation is investigation; and (e) the order of cancellation of his bail
disapproved by the provincial or city prosecutor or chief bond, if the resolution is for the dismissal of the complaint.
state prosecutor or the Ombudsman or his deputy on the denzmary February 20, 2008 at 12:48 am
ground that a probable cause exists, the latter may, by Hi! I need help for legal advised. I am now to the point to
himself, file the information against the respondent, or Within thirty (30) days from receipt of the records, the bring my own brother to the court. On late 2005 our
direct another assistant prosecutor or state prosecutor to provincial or city prosecutor, or the Ombudsman or his brother George(not his real name) he pointed his gun to
do so without conducting another preliminary deputy, as the case may be, shall review the resolution of our 2 brothers and 1 sister in the farm. Threatened them
investigation. the investigating judge on the existence of probable cause. to kill. George become cruel when his dishonesty and
Their ruling shall expressly and clearly state the facts and anomaly in farm was under control. On early 2006 he steal
the law on which it is based and the parties shall be the carabao in the farm that until now it was never return.
An Information filed in court may be quashed, among furnished with copies thereof. They shall order the release On the middle of 2006 he burned the farm houses in the
other reasons, if it does not contain the approval or of an accused who is detained if no probable cause is midnight that he may think he can not be accused due to
authority of the aforementioned superiors. found against him. the fact that no body sees him. During that incident we
Related Posts: received a death threat letter kind anonymous, sounds like
from the rebels and there’s a cellphone number to be
Got [Probable] Cause? contact with. When our mother was advised by the police

19
to call the cellphone number indicated from the death crushed November 5, 2008 at 7:52 am
threat letter it turns out it was the voiced of our brother
Reply ↓ if found guilty of bigamy and i’m working abroad can they
“george” that threatened my parents as will as our family
extradite me? which countries can our government
members badly. Now, this year 2008 he ambush our other divine March 2, 2008 at 7:58 am
extradite if person is guilty of bigamy?
brother that supervising the workers in the farm that
resulted into a physical injury. I am now so exhausted of all Greetings. Only for clarity, Municipal Trial Court judges are
his demonic act against our family. He produce his own no longer authorized to conduct preliminary investigation
documents to own my farmland. He barricaded my farm per A.M. No. 05-8-26 of the Supreme Court. Thank you. Reply ↓
area that my workers can not enter. All his criminal More power.
noel_benolirao August 30, 2009 at 12:57 pm
activities has been reported to the nearest Police station.
Non stop death threat to us. I am so overwhelm he was sir…i need to file a request for PI…is there a specific format
able to feed some cronies that his income is not enough to Reply ↓ which I can follow?..is this like a letter format address to
support his own family since he has a half dozen of the Prosecutor or the RTC Branch?does it have to be
move October 18, 2008 at 2:51 am
children. He steal all the copras in my farm. I know for sure notarized?your help highly appreciated..i only have less
that he will not prosper of his false documents but please Hi Attorney. I need your help. When I left the Philippines, I than 5 days to file for PI as of this writing/post….
give me an advised. We are on the process to file a 5 was advised to resign by my employer for funds
criminal cases to george if he found guilty including illegal misappropriations issue in July 2008. I also signified my
position of 38 and 45 guns, stealing carabao, death intention to settle whatever liability arising from what I Reply ↓
threatening to our family members, mauling/physical have done. I am now out of the country seeking
anna_cenidoza June 24, 2010 at 7:13 am
injury to my brother, burning the farm houses, what is the employment opportunities. I just learned that my previous
penalty and punishment to be given to him? please help employer in the Philippines is filing a criminal case against Dear Sir,
me…. me for misappropriations. I had talked to our HR Manager
and was told that they are only taking orders from the
Corporate lawyers who already took charge of my case. I Good day!
Reply ↓ was informed that they already went to the office of the
City Prosecutor for the filing of the case. The case that they
Atty. Fred Post authorFebruary 22, 2008 at 3:27 am are filing is either theft or estafa. I am already out of the I would like to ask, what specific case, criminal or civil case,
denzmary, the common penalty in criminal cases is country. Can the Philippine Court ordered me back to the may file to a Chief Operating Officer (COO) if he uses the
imprisonment, although in certain cases like libel or Philippines to answer the charges? I am already about to company’s funds for his personal interests?
bouncing checks, courts are given the discretion to impose be employed where I am now and may not be able to take
the penalty of imprisonment only, fine only, or both. The leaves to answer/face the charges. Please advise me what
penalty depends on the case filed in court, the presence of to do. I am lost here.
Thank you very much!
qualifying, mitigating or aggravating circumstances and a
host of other factors.
Reply ↓
Reply ↓
20
zingodabingo April 16, 2012 at 5:14 pm Reply ↓

I like to ask a question about violence against women Likewise, how can I ask the good court to move the trial juris September 18, 2014 at 4:58 am
children act. few years ago me and my wife separated, was from one place to another? If ever I stay in the Philippines
My mom was being arrested for illegal drugs found with
her choice. I offered 2k a month with the money I can and be allowed to file a complaint can the trial be done in
her. She was a balot vendor, and it was a setup. How can I
afford. next day she accused me of violence against some other provinces or in metropolitan area where I feel
file conplaint, she was transferred in Provincial Jail. She is
women children act, she wants more. so i added another more confident.
innocent and we are poor. What are the first steps that we
1k, after i’m having a hard time. That lasted for a year now
are going to do?
she’s demanding another 3k for private school also I got
another job in a different area, were the rent is little lower. Your input is highly regarded.
But of course also the income. I finally put my foot down
and told her i will pay what i can afford. which is the 2k Reply ↓
and I didn’t have a job for 2 months. So now she’s filing a Ta. Dean September 19, 2014 at 5:27 pm
case. So am I considered a criminal, even after giving her
support of what I can afford? Good day attorney,i need your advice and help.I was being
accuse for a case which i never make.what happened is
Reply ↓
like this i have a gay friend po he is 17 years old and he
Reply ↓ kitty August 3, 2014 at 11:54 pm keeps on visiting in my town,the incident happened last
May of this year kasi po habang naglalaro po kami with
DennisA July 13, 2012 at 3:26 am Can a fiscal mitigate a frustrated murder into physical some of the kids ages 11-12 palagi po silang sumasama sa
injuries? kaibigan kung tumatago cause we were playing Hide and
Good day.
can he as well remove some respondents from the list? Seek that time attorney,to make the story short nung
There are 6 respondents on a frustrated murder case, panahon na ako na po yung taya naka pag tago po sila sa
there was a warrant of arrest fro them. One of them has malayong area ng pinaglalaroan namin then nakita ko na
I’d like to know if I could still file a case against my
been caught and brought to BJMP. The other 5 are po sila kaso lang de sila lumabas pag dating ko doon i saw
brother’s murderer(s) now that I am no longer a Filipino?
hiding.The fiscal is offering a help that he may mitigate the them that they were having fun and teasing each other na
How do I file such case? Do I need to go to he Philippines
case into just slight physical injuries and will make a makikipag sex but then i dont want ed to have sex with
speak with our embassy there or can I do it from where
probation to remove the names of the other 5 from the list them so ang nangyari po pag katapos ng maraming usapan
live and let the Philippine embassy do the coordination? I
and also a probation to free the one detained and will just yung naka sex nila is yung friend ko yung naka sex niya po
am fine both ways I just want justice to be served for my
allow to go but requires him to attend hearings later on. is yung dalawang bata habang yung isa is naging look out
brother who was brutally murdered. I still have siblings in
Unfortunately I am not in the Ph so I just get this info after tas yung dalawa po ay sumama sakin na umalis.yung
Philippines but they are far too scared because of the
these people talk with the concerned people in position. nangyari po ngayon is nalaman daw ng mga magulang
known mentality in that province. Likewise, isn’t it that
Thanks. I really need your advice. yung nangyari dahil daw po pinagkakalat nila tas ako po
state prosecutor should sprearhead the case and be on our
yung tinotoro ng mga magulang na ako daw yung gumawa
side as we are the agrieved party? Please let me know
na kahit aminado po yung mga bata na hindi ako ang
what is the right procedure.
gumawa ng pakikipag oral sex sa kanila.nag karoon po
21
kami ng hearing sa Police station at yung lamang ang
natanggap ko nah invitation.so they are really really to file
Now that our penal laws are being codified, I hope too that (please correct me if I am wrong)
a case against me daw po so yung case na finile nila is
this absurd quasi-judicial function of Persecutors be
“RAPE”.
removed at once!
Reply ↓
Ngayon Po attorney ano po yung mga dapat kung gawin to dada September 23, 2014 at 9:07 am
Thanks for illuminating us on this matter.
fight for this one?,kasi po pinagkakalat na po nila dito
samin na ganyan nga daw po yung mga pinaggagawa ko Good day!I want to ask a question.. what happen to the
may chance pa po bang maging ok po to attorney?.I really case if the complainant and the accused both failed to
need for your advice for this one attorney.THANKS IN Kenji attend the hearing? And the complainant give a wrong
ADVANCE address thats why the accused failed to attend the
hearing.. he didnt even know that he has a case file on
Reply ↓ him… thanks in advance for you answer…
Reply ↓ happy September 22, 2014 at 7:47 am
kenji September 20, 2014 at 10:03 am What if a person is lawfully arrested without a warrant, Reply ↓
Good day. and an information is already filed in court. Later on, the
accused requests for a preliminary investigation. Can the
court where the information is filed conduct such [G.R. No. 130191. April 27, 1998]
preliminary investigation? Or is it mandated to remand the
Shall an information or complaint be filed immediately
case to the prosecutor?
with the proper court as soon as the Provincial Prosecutor
approves the finding of probable cause by the RODRIGO R. DUTERTE and BENJAMIN C. DE GUZMAN,
Investigating Prosecutor, considering that the respondent petitioners, vs. THE HONORABLE SANDIGANBAYAN,
still has the remedy to seek review of such finding with the Reply ↓ respondent.
DOJ? Isabelina August 26, 2016 at 11:27 am DECISION
Preliminary Investigation (PI) is only mandatory for cases KAPUNAN, J.:
An affirmative answer to this question opens door to where the penalty prescribed by law is at least four (4)
abuses of some sadistic prosecutors (persecutors) who years, two (2) months and one (1) day, without regard to
would file an information immediately with the proper the fine. If the information is filed in court without said PI, The right to preliminary investigation is not a mere formal
court so that a warrant of arrest could be issued and the the PI (on the motion of the respondent/party & right, it is a substantive right. To deny the accused of such
respondent(accused) could be committed to jail at least in permission of the court) can be conducted by the court right would be to deprive him of due process.
the meantime pending review by DOJ. where the case is filed (if the court is a Municipal Trial
Courts or Municipal Circuit Trial Courts)
22
In this special civil action for certiorari with preliminary After obtaining prior clearance from COA Auditor Kintanar,
injunction, petitioners seek to set aside the Order of the the Committee proceeded to negotiate with SPI,
Mr. Alexis Almendras, City Councilor\
Sandiganbayan dated 27 June 1997 denying the Motion to represented by its President Rodolfo V. Jao and Executive
Quash the information filed against them for violating Sec. Vice President Manuel T. Asis, for the acquisition and
3(g) of R.A. No. 3019, otherwise known as the Anti-Graft installation of the computer hardware and the training of
And Corrupt Practices Act. Petitioners similarly impugn the Atty. Onofre Francisco, City Legal Officer personnel for the Electronic Data-Processing Center. The
Resolution of the Sandiganbayan dated 5 August 1997 total contract cost amounted to P11,656,810.00
which denied their Motion for Reconsideration thereof.
Mr. Rufino Ambrocio, Jr., Chief of Internal Control Office
On 5 November 1990, the City Council (Sangguniang
Pertinent to this case are the following facts: Panlungsod) of Davao unanimously passed Resolution No.
Atty. Mariano Kintanar, COA Resident Auditor.[1] 1402 and Ordinance No. 173 approving the proposed
contract for computerization between Davao City and SPI.
In 1990, the Davao City Local Automation Project was The Sanggunian, likewise, authorized the City Mayor
launched by the city government of Davao. The goal of The Committees duty was to conduct a thorough study of (petitioner Duterte) to sign the said contract for and in
said project was to make Davao City a leading center for the different computers in the market, taking into account behalf of Davao City.[3]
computer systems and technology development. It also the quality and acceptability of the products, the
aimed to provide consultancy and training services and to reputation and track record of the manufacturers and/or
assist all local government units in Mindanao set up their their Philippine distributors, the availability of service On the same day, the Sangguniang issued Resolution No.
respective computer systems. centers in the country that can undertake preventive 1403 and Ordinance No. 174, the General Fund
maintenance of the computer hardwares to ensure a long Supplemental Budget No. 07 for CY 1990 appropriating
and uninterrupted use and, last but not the least, the P3,000,000.00 for the citys computerization project.
To implement the project, a Computerization Program capability of the manufacturers and/or Philippine
Committee, composed of the following was formed: distributors to design and put into place the computer
system complete with the flow of paperwork, forms to be Given the go-signal, the contract was duly signed by the
used and personnel required.[2] parties thereto and on 8 November 1990, petitioner City
Chairman : Atty. Benjamin C. de Guzman, City Administrator de Guzman released to SPI PNB Check No.
Administrator 65521 in the amount of P1,748,521.58 as downpayment.
Following these guidelines, the Committee recommended
the acquisition of Goldstar computers manufactured by
Goldstar Information and Communication, Ltd., South On 27 November 1990, the Office of the Ombudsman-
Members : Mr. Jorge Silvosa, Acting City Treasurer
Korea and exclusively distributed in the Philippines by Mindanao received a letter-complaint from a concerned
Systems Plus, Inc. (SPI). citizen, stating that some city officials are going to make a
Atty. Victorino Advincula, City Councilor killing in the transaction.[4] The complaint was docketed

23
as OMB-MIN-90-0425. However, no action was taken
thereon.[5]
In the meantime, a Special Audit Team of the Commission 4. The City had no Information System Plan (ISP) prior to
on Audit was tasked to conduct an audit of the Davao City the award of the contract to SPI in direct violation of
Local Automation Project to determine if said contract Malacaang Memo. Order No. 287 and NCC Memo. Circular
Thereafter, sometime in February 1991, a complaint
conformed to government laws and regulations. 89-1 dated June 22, 1989. This omission resulted in undue
docketed as Civil Case No. 20,550-91, was instituted before
disadvantage to the City Government.
the Regional Trial Court of Davao City, Branch 12 by Dean
Pilar Braga, Hospicio C. Conanan, Jr. and Korsung Dabaw
On 31 May 1991, the team submitted its Special Audit
Foundation, Inc. against the petitioners, the City Council,
Report (SAR) No. 91-05 recommending rescission of the 5. To remedy the foregoing deficiencies, the team
various city officials and SPI for the judicial declaration of
subject contract. A copy of the report was sent to recommends that the contract with Systems Plus, Inc. be
nullity of the aforestated resolutions and ordinances and
petitioner Duterte by COA Chairman Eufemio C. Domingo rescinded in view of the questionable validity due to
the computer contract executed pursuant thereto.
on 7 June 1991. In the latters transmittal letter, Chairman insufficient funding. Further, the provisions of NCC-
Domingo summarized the findings of the special audit Memorandum Circular 89-1 dated June 22, 1989 regarding
team, thus: procurement and/or installation of computer
On 22 February 1991, Goldstar, through its agent, Mr. S.Y.
hardware/system should be strictly adhered to.[7]
Lee sent a proposal to petitioner Duterte for the
cancellation of the computerization contract.
1. The award of the contract for the Davao City Local
Automation Project to Systems Plus, Inc., for P11,656,810 The city government, intent on pursuing its
was done thru negotiated contract rather than thru computerization plan, decided to follow the audit teams
Consequently, on 8 April 1991, the Sangguniang issued
competitive public bidding in violation of Sections 2 and 8 recommendation and sought the assistance of the
Resolution No. 449 and Ordinance No. 53 accepting
of PD 526. Moreover, there was no sufficient appropriation National Computer Center (NCC). After conducting the
Goldstars offer to cancel the computerization contract
for this particular contract in violation of Sec. 85 of PD necessary studies, the NCC recommended the acquisition
provided the latter return the advance payment of
1445. of Philips computers in the amount of P15,792,150.00.
P1,748,521.58 to the City Treasurers Office within a period
Davao City complied with the NCCs advice and hence, was
of one month. Petitioner Duterte, as city mayor, was thus
finally able to obtain the needed computers.
authorized to take the proper steps for the mutual
2. Advance payment of P1.7M was made to Systems Plus,
cancellation of the said contract and to sign all documents
Inc. covering 15% of the contract cost of P11.6M in
relevant thereto.[6]
violation of Sec. 45 of PD 477 and Sec. 88 of PD 1445. Subsequently, on 1 August 1991, the Anti-Graft League-
Davao City Chapter, through one Miguel C. Enriquez, filed
an unverified complaint with the Ombudsman-Mindanao
Pursuant to the aforestated authority, on 6 May 1991,
3. The cost of computer hardware and accessories under against petitioners, the City Treasurer, City Auditor, the
petitioner Duterte, in behalf of Davao City, and SPI
contract with Systems Plus, Inc. (SPI) differed from the whole city government of Davao and SPI. The League
mutually rescinded the contract and the downpayment
teams canvass by as much as 1200% or a total of P1.8M. alleged that the respondents, in entering into the
was duly refunded.
computerization contract, violated R.A. No. 3019 (Anti-

24
Graft and Corrupt Practices Act), PD No. 1445 Jorge Silvosa (City Treasurer), Mariano Kintanar (City 1768. Prosecutor De Guzman recommended that the
(Government Auditing Code of the Philippines), COA Auditor) and Manuel T. Asis of SPI to: charges of malversation, violation of Sec. 3(e), R.A. No.
circulars and regulations, the Revised Penal Code and 3019 and Art. 177, Revised Penal Code against petitioners
other pertinent laws. The case was docketed as OMB-3-91- and their co-respondents be dismissed. He opined that any
1768.[8] xxx file in ten (10) days (1) their respective verified point- issue pertaining to unwarranted benefits or injury to the
by-point comment under oath upon every allegation of the government and malversation were rendered moot and
complaint in Civil Case No. 20,550-91 in the Regional Trial academic by the mutual rescission of the subject contract
On 9 October 1991, Graft Investigation Officer (GIO) Pepito Court (RTC), Branch 12, Davao City Dean Pilar C. Braga, et before the COA submitted its findings (SAR No. 91-05) or
A. Manriquez of the Office of the Ombudsman sent a al. vs. Illegality of City Council of Davao Resolutions and before the disbursement was disallowed. However,
letter[9] to COA Chairman Domingo requesting the Special Ordinances, and the Computer Contract executed Prosecutor De Guzman recommended that petitioners be
Audit Team to submit their joint affidavit to substantiate Pursuant Thereto, for Recovery of Sum of Money, charged under Sec. 3(g) of R.A. No. 3019 for having
the complaint in compliance with Section 4, par. (a) of the Professional Fees and Costs with Injunctive Relief, entered into a contract manifestly and grossly
Rules of Procedure of the Office of the Ombudsman (A. O. including the Issuance of a Restraining Order and/or a Writ disadvantageous to the government, the elements of
No. 07). of Preliminary Prohibitory Injunction in which they filed a profit, unwarranted benefits or loss to government being
motion to dismiss, not an answer and (2) the respective immaterial.[12]
comments, also under oath, on the Special Audit Report
On 14 October 1991, Judge Paul T. Arcangel, issued an No. 91-05, a copy of which is attached.[11]
Order dismissing Civil Case No. 20,550-91. The dispositive Accordingly, the following information dated 8 February
portion reads, thus: 1996 was filed against petitioners before the
On 4 December 1991, the Ombudsman received the Sandiganbayan (docketed as Criminal Case No. 23193):
affidavits of the Special Audit Team but failed to furnish
WHEREFORE, in view of all the foregoing, this case is petitioners copies thereof.
hereby dismissed on the ground of prematurity and that it That on or about November 5, 1990, in the City of Davao,
has become moot and academic with the mutual Philippines, and within the jurisdiction of this Honorable
cancellation of the contract. The other claims of the On 18 February 1992, petitioners submitted a Court, the above-named accused, both public officers,
parties are hereby denied. No pronouncement as to costs. manifestation adopting the comments filed by their co- accused Benjamin C. De Guzman being then the City
respondents Jorge Silvosa and Mariano Kintanar dated 25 Administrator of Davao City, committing the crime herein
November 1991 and 17 January 1992, respectively. charged in relation to, while in the performance and taking
SO ORDERED.[10] advantage of their official functions, and conspiring and
confederating with each other, did then and there willfully,
Four years after, or on 22 February 1996, petitioners unlawfully and criminally enter into a negotiated contract
On 12 November 1991, Graft Investigator Manriquez received a copy of a Memorandum prepared by Special for the purchase of computer hardware and accessories
issued an order in OMB-3-91-1768 directing petitioners, Prosecution Officer I, Lemuel M. De Guzman dated 8 with the Systems Plus, Incorporated for and in
February 1996 addressed to Ombudsman Aniano A. consideration of the amount of PESOS: ELEVEN MILLION
Desierto regarding OMB-MIN-90-0425 and OMB-3-91- SIX HUNDRED FIFTY-SIX THOUSAND EIGHT HUNDRED TEN
25
(P11,656,810.00), which contract is manifestly and grossly On 18 June 1997, petitioners filed a Motion to Quash
disadvantageous to the government, said accused knowing which was denied by the Sandiganbayan in its Order dated
Hence, the present recourse.
fully-well that the said acquisition cost has been 27 June 1997. The Sandiganbayan ruled:
overpriced by as much as twelve hundred (1200%) percent
and without subjecting said acquisition to the required
public bidding. Petitioners allege that:
It appears, however, that the accused were able to file
motions for the reconsideration of the Resolution
authorizing the filing of the Information herein with the
CONTRARY TO LAW.[13] Ombudsman in Manila. This would mean, therefore, that THE HONORABLE SANDIGANBAYAN COMMITTED GRAVE
whatever decision which might have occurred with respect ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS
to the preliminary investigation would have been OF JURISDICTION IN DENYING PETITIONERS MOTION TO
remedied by the motion for consideration in the sense QUASH AND MOTION FOR RECONSIDERATION,
On 27 February 1996, petitioners filed a motion for
that whatever the accused had to say in their behalf, they CONSIDERING THAT:
reconsideration and on 29 March 1996, a Supplemental
Motion for Reconsideration on the following grounds: were able to do in that motion for reconsideration.

A
1. Petitioners were deprived of their right to a preliminary Considering the denial thereof by the Office of the
investigation, due process and the speedy disposition of Ombudsman, the Court does not believe itself empowered
their case; to authorize a reinvestigation on the ground of an (1) PETITIONERS WERE EFFECTIVELY DEPRIVED OF THEIR
inadequacy of the basic preliminary investigation nor with RIGHT TO A PRELIMINARY INVESTIGATION PURSUANT TO
respect to a dispute as to the proper appreciation by the SEC. 4, RULE II OF ADMINISTRATIVE ORDER NO. 07 (RULES
prosecution of the evidence at that time. OF PROCEDURE OF THE OFFICE OF THE OMBUDSMAN);
2. Petitioner Duterte acted in good faith and was clothed
AND
with authority to enter into the subject contract;

In view hereof, upon further representation by Atty.

Medialdea that he represents not only Mayor Duterte but (2) ASSUMING THAT A PRELIMINARY INVESTIGATION WAS
3. There is no contract manifestly and grossly
City Administrator de Guzman as well, upon his PROPERLY CONDUCTED, THERE WAS AN INORDINATE
disadvantageous to the government since the subject
commitment, the arraignment hereof is now set for July DELAY IN TERMINATING THE SAME THEREBY DEPRIVING
contract has been duly rescinded.
25, 1997 at 8:00 oclock in the morning.[14] THEM OF THEIR RIGHT TO DUE PROCESS AND SPEEDY
DISPOSITION OF THE CASE.

On 19 March 1996, the Ombudsman issued a Resolution

denying petitioners motion for reconsideration. On 15 July 1997, petitioners moved for reconsideration of
the above order but the same was denied by the B
Sandiganbayan for lack of merit in its Resolution dated 5
August 1997.[15]
26
THERE IS NO SUFFICIENT BASIS, IN FACT AND IN LAW, TO petitioners has been conducted not in the manner laid
CHARGE PETITIONERS DUTERTE AND DE GUZMAN OF down in Administrative Order No. 07.
a) dismissed outright for want of palpable merit;
VIOLATING SEC. 3 (G) OF R.A. 3019 IN THAT:

In the 12 November 1991 Order of Graft Investigator

b) referred to respondent for comment;
(1) PETITIONER DUTERTE ACTED IN GOOD FAITH AND WAS Manriquez, petitioners were merely directed to submit a
CLOTHED WITH FULL LEGAL AUTHORITY FROM THE CITY point-by-point comment under oath on the allegations in
COUNCIL TO ENTER INTO A CONTRACT WITH SYSTEMS Civil Case No. 20,550-91 and SAR No. 91-05. The said order
PLUS, INC., was not accompanied by a single affidavit of any person c) endorsed to the proper government office or agency
charging petitioners of any offense as required by law.[17] which has jurisdiction over the case;
They were just required to comment upon the allegations
(2) THERE IS NO CONTRACT MANIFESTLY AND GROSSLY in Civil Case No. 20,550-91 of the Regional Trial Court of
DISADVANTAGEOUS TO THE GOVERNMENT TO SPEAK OF Davao City which had earlier been dismissed and on the d) forwarded to the appropriate office or official for fact-
AS THE SAME HAS BEEN RESCINDED AND NO DAMAGE COA Special Audit Report. Petitioners had no inkling that finding investigation;
WAS SUFFERED BY THE CITY GOVERNMENT; they were being subjected to a preliminary investigation as
in fact there was no indication in the order that a
preliminary investigation was being conducted. If Graft e) referred for administrative adjudication; or
(3) ASSUMING THAT THE CONTRACT WAS NOT Investigator Manriquez had intended merely to adopt the
RESCINDED, THE SAME CANNOT BE CONSIDERED AS allegations of the plaintiffs in the civil case or the Special
MANIFESTLY AND GROSSLY DISADVANTAGEOUS TO THE Audit Report (whose recommendation for the cancellation f) subjected to a preliminary investigation
GOVERNMENT.[16] of the contract in question had been complied with) as his
basis for criminal prosecution, then the procedure was
plainly anomalous and highly irregular. As a consequence, xxx
On 4 September 1997, the Court issued a Temporary petitioners constitutional right to due process was
Restraining Order enjoining the Sandiganbayan from violated.
further proceeding with Criminal Case No. 23193. Sec. 4. Procedure. The preliminary investigation of cases
falling under the jurisdiction of the Sandiganbayan and
Sections (2) and (4), Rule II of Administrative Order No. 07 Regional Trial Courts shall be conducted in the manner
The Court finds the petition meritorious. (Rules of Procedure of the Office of the Ombudsman) prescribed in Section 3, Rule 112 of the Rules of Court,
provide: subject to the following provisions:

We have judiciously studied the case records and we find

that the preliminary investigation of the charges against Sec. 2. Evaluation. Upon evaluating the complaint, the a) If the complaint is not under oath or is based only on
investigating officer shall recommend whether or not it official reports, the investigating officer shall require the
may be:
27
complainant or supporting witnesses to execute affidavits in Section 2(b) Rule II, of A.O. No. 07 is not part of or is
to substantiate the complaints. equivalent to the preliminary investigation contemplated
f) If, after the filing of the requisite affidavits and their
in Sec. 4, Rule II, of the same Administrative Order. A plain
supporting evidences, there are facts material to the case
reading of Sec. 2 would convey the idea that upon
which the investigating officer may need to be clarified on,
b) After such affidavits have been secured, the evaluation of the complaint, the investigating officer may
he may conduct a clarificatory hearing during which the
investigating officer shall issue an order, attaching thereto recommend its outright dismissal for palpable want of
parties shall be afforded the opportunity to be present but
a copy of the affidavits and other supporting documents, merit; otherwise, or if the complaint appears to have some
without the right to examine or cross-examine the witness
directing the respondent to submit, within ten (10) days merit, the investigator may recommend action under any
being questioned. Where the appearance of the parties or
from receipt thereof, his counter-affidavits and of those enumerated from (b) to (f), that is, the
witnesses is impracticable, the clarificatory questioning
controverting evidence with proof of service thereof on investigator may recommend that the complaint be:
may be conducted in writing, whereby the questions
the complainant. The complainant may file reply affidavits referred to respondent for comment, or endorsed to the
desired to be asked by the investigating officer or a party
within ten (10) days after service of the counter-affidavits. proper government office or agency which has jurisdiction
shall be reduced into writing and served on the witness
over the case; or forwarded to the appropriate office of
concerned who shall be required to answer the same in
official for fact-finding investigation. Now, if the
writing and under oath.
c) If the respondent does not file a counter-affidavit, the investigator opts to recommend the filing of a comment by
investigating officer may consider the comment filed by the respondent, it is presumably because he needs more
him, if any, as his answer to the complaint. In any event, facts and information for further evaluation of the merits
g) Upon the termination of the preliminary investigation, of the complaint. That being done, the investigating officer
the respondent shall have access to the evidence on
the investigating officer shall be forward the records of the shall again recommend any one of the actions enumerated
record.
case together with his resolution to the designated in Section 2, which include the conduct of a preliminary
authorities for their appropriate action thereon. investigation.
d) No motion to dismiss shall be allowed except for lack of
jurisdiction. Neither may a motion for a bill of particulars
No information may be filed and no complaint may be A preliminary investigation, on the other hand, takes on an
be entertained. If respondent desires any matter in the
dismissed without the written authority or approval of the adversarial quality and an entirely different procedures
complainants affidavit to be clarified, the particularization
Ombudsman in cases falling within the jurisdiction of the comes into play. This must be so because the purpose of a
thereof may be done at the time of clarificatory
Sandiganbayan, or the proper Deputy Ombudsman in all preliminary investigation or a previous inquiry of some
questioning in the manner provided in paragraph (f) of this
other cases. kind, before an accused person is placed on trial, is to
section.
secure the innocent against hasty, malicious and
oppressive prosecution, and to protect him from an open
In what passes off as application of the foregoing rules, all and public accusation of a crime, from the trouble,
e) If the respondent cannot be served with the order
that petitioners were asked to do was merely to file their expenses and anxiety of public trial.[18] It is also intended
mentioned in paragraph 6 hereof, or having been served,
comment upon every allegation of the complaint in Civil to protect the state from having to conduct useless and
does not comply therewith, the complaint shall be deemed
Case No. 20,550-91 in the Regional Trial Court (RTC) and expensive trials.[19] While the right is statutory rather
submitted for resolution on the basis of the evidence on
on the COA Special Audit Report. The comment referred to than constitutional in its fundament, it is a component part
record.
28
of due process in criminal justice. The right to have a petitioners to submit their respective comments on the deputies have gathered evidence and their investigation
preliminary investigation conducted before being bound complaint in the civil case and on Special Audit Report has ceased to be a general exploratory one and they
over to trial for a criminal offense and hence, formally at (SAR) 91-05. Even when the required affidavits were filed decide to bring the action against a party, their
risk of incarceration or some other penalty, is not a mere by the audit team on 4 December 1991, petitioners were proceedings become adversary and Rule II 4(a) then
formal or technical right; it is a substantive right. To deny still not furnished copies thereof. The Ombudsman applies. This means that before the respondent can be
the accuseds claim to a preliminary investigation would be contends that failure to provide petitioners the complaint- required to submit counter-affidavits and other supporting
to deprive him of the full measure of his right to due affidavits is immaterial since petitioners were well aware documents, the complaint must submit his affidavit and
process.[20] of the existence of the civil complaint and SAR No. 91-05. those of his witnesses. This is true not only of prosecutions
We find the Ombudsmans reasoning flawed. The civil of graft cases under Rep. Act No. 3019 but also of actions
complaint and the COA Special Audit Report are not for the recovery of unexplained wealth under Rep. Act No.
Note that in preliminary investigation, if the complaint is equivalent to the complaint-affidavits required by the 1379, because 2 of this latter law requires that before a
unverified or based only on official reports (which is the rules. Moreover, long before petitioners were directed to petition is filed there must be a previous inquiry similar to
situation obtaining in the case at bar), the complainant is file their comments, the civil complaint (Civil Case No. 20, preliminary investigation in criminal cases.
required to submit affidavits to substantiate the complaint. 550-91) was rendered moot and academic and,
The investigating officer, thereafter, shall issue an order, to accordingly, dismissed following the mutual cancellation of
which copies of the complaint-affidavit are attached, the computerization contract. In SAR No. 91-05, on the Indeed, since a preliminary investigation is designed to
requiring the respondent to submit his counter-affidavits. other hand, petitioners were merely advised to rescind the screen cases for trial, only evidence may be considered.
In the preliminary investigation, what the respondent is subject contract which was accomplished even before the While reports and even raw information may justify the
required to file is a counter-affidavit, not a comment. It is audit report came out. In light of these circumstances, the initiation of an investigation, the stage of preliminary
only when the respondent fails to file a counter-affidavit Court cannot blame petitioners for being unaware of the investigation can be held only after sufficient evidence has
may the investigating officer consider the respondents proceedings conducted against them. been gathered and evaluated warranting the eventual
comment as the answer to the complaint. Against the prosecution of the case in court. As this Court held in
foregoing backdrop, there was a palpable non-observance Cojuangco, Jr. v. PCGG:
by the Office of the Ombudsman of the fundamental In Olivas vs. Office of the Ombudsman,[21] this Court,
requirements of preliminary investigation. speaking through Justice Vicente V. Mendoza, emphasized
that it is mandatory requirement for the complaint to Although such a preliminary investigation is not a trial and
submit his affidavit and those of his witnesses before the is not intended to usurp the function of the trial court, it is
Apparently, in the case at bar, the investigating officer respondent can be compelled to submit his counter- not a casual affair. The officer conducting the same
considered the filing of petitioners comment as a affidavits and other supporting documents. Thus: investigates or inquires into the facts concerning the
substantial compliance with the requirements of a commission of the crime with the end in view of
preliminary investigation. Initially, Graft Investor determining whether or not an information may be
Manriquez directed the members of the Special Audit Even in investigations looking to the prosecution of a prepared against the accused. Indeed, a preliminary
Team on 9 October 1991 to submit their affidavits relative party, Rule I, 3 can only apply to the general criminal investigation is in effect a realistic judicial appraisal of the
to SAR No. 91-05. However, on 12 November 1991, before investigation, which in the case at bar was already merits of the case. Sufficient proof of the guilt of the
the affidavits were submitted, Manriquez required conducted by the PCGG. But after the Ombudsman and his accused must be adduced so that when the case is tried,
29
the trial court may not be bound as a matter of law to accused to due process. Substantial adherence to the
order an acquittal. A preliminary investigation has then requirements of the law governing the conduct of
It has been suggested that the long delay in terminating
been called a judicial inquiry. It is a judicial proceeding. An preliminary investigation, including substantial compliance
the preliminary investigation should not be deemed fatal,
act becomes judicial when there is opportunity to be heard with the time limitation prescribed by the law for the
for even the complete absence of a preliminary
and for the production and weighing of evidence, and a resolution of the case by the prosecutor, is part of the
investigation does not warrant dismissal of the
decision is rendered thereof. procedural due process constitutionally guaranteed by the
information. True but the absence of a preliminary
fundamental law. Not only under the broad umbrella of
investigation can be corrected by giving the accused such
the due process clause, but under the constitutional
investigation. But an undue delay in the conduct of the
II guarantee of speedy disposition of cases as embodied in
preliminary investigation can not be corrected, for until
Section 16 of the Bill of Rights (both in the 1973 and 1987
now, man has not yet invented a device for setting back
Constitution), the inordinate delay is violative of the
time.
Compounding the deprivation of petitioners of their right petitioners constitutional rights. A delay of close to three
to a preliminary investigation was the undue and (3) years can not be deemed reasonable or justifiable in
unreasonable delay in the termination of the irregularity the light of the circumstances obtaining in the case at bar.
We are not impressed by the attempt of the In the recent case of Angchangco, Jr. vs. Ombudsman,[24]
conducted preliminary investigation. Petitioners
Sandiganbayan to sanitize the long delay by indulging in the Court upheld Angchangcos right to the speedy
manifestation adopting the comments of their co-
the speculative assumption that the delay may be due to a disposition of his case. Angchangco was a sheriff in the
respondents was filed on 18 February 1992. However, it
painstaking and grueling scrutiny by the Tanodbayan as to Regional Trial Court of Agusan del Norte and Butuan City.
was only on 22 February 1996 or four (4) years later, that
whether the evidence presented during the preliminary In 1990 criminal complaints were filed against him which
petitioners received a memorandum dated 8 February
investigation merited prosecution of a former high-ranking remained pending before the Ombudsman even after his
1996 submitted by Special Prosecutor Officer I Lemuel M.
government official. In the first place, such a statement retirement in 1994. The Court thus ruled:
De Guzman recommending the filing of information
against them for violation of Sec. 3(g) of R.A. No. 3019 suggests a double standard of treatment, which must be
(Anti-Graft and Corrupt Practices Act). The inordinate emphatically rejected. Secondly, three out of the five
charges against the petitioner were for his alleged failure Here, the Office of the Ombudsman, due to its failure to
delay in the conduct of the preliminary investigation
to file his sworn statement of assets and liabilities required resolve the criminal charges against petitioner for more
infringed upon their constitutionally guaranteed right to a
by Republic Act No. 3019, which certainly did not involve than six years, has transgressed on the constitutional right
speedy disposition of their case.[22] In Tatad vs.
complicated legal and factual issues necessitating such of petitioner to due process and to a speedy disposition of
Sandiganbayan,[23] we held that an undue delay of close
painstaking and grueling scrutiny as would justify a delay the cases against him, as well as the Ombudsmans own
to three (3) years in the termination of the preliminary
of almost three years in terminating the preliminary constitutional duty to act promptly on complaints filed
investigation in the light of the circumstances obtaining in
investigation. The other two charges relating to alleged before it. For all these past 6 years, petitioner has
that case warranted the dismissal of the case:
bribery and alleged giving of unwarranted benefits to a remained under a cloud, and since his retirement in
relative, while presenting more substantial legal and September 1994, he has been deprived of the fruits of his
factual issues, certainly do not warrant or justify the period retirement after serving the government for over 42 years
We find the long delay in the termination of the
of three years, which it took the Tanodbayan to resolve all because of the inaction of respondent Ombusman. If we
preliminary investigation by the Tanodbayan in the instant
the case. wait any longer, it may be too late for petitioner to receive
case to be violative of the constitutional right of the
30
his retirement benefits, not to speak of clearing his name. interest of justice evenhandedly, without fear or favor to
This is a case of plain injustice which calls for the issuance any and all litigants alike whether rich or poor, weak or
In Alviso vs. Sandiganbayan,[28] the Court observed that
of the writ prayed for.[25] strong, powerless or mighty. Only by strict adherence to
the concept of speedy disposition of cases is a relative
the established procedure may be publics perception of
term and must necessarily be a flexible concept and that
the impartiality of the prosecutor be enhanced.[26]
the factors that may be considered and balanced are the
We are not persuaded by the Ombudsmans argument that
length of the delay, the assertion or failure to assert such
the Tatad ruling does not apply to the present case which
right by the accused, and the prejudice caused by the
is not politically motivated unlike the former, pointing out The Ombudsman endeavored to distinguish the present
delay.
the following findings of the Court in the Tatad decision: suit from the Angchangco case by arguing that in the
latter, Angchangco filed several motions for early
resolution, implying that in the case at bar petitioners
Petitioners in this case, however, could not have urged the
A painstaking review of the facts can not but leave the were not as vigilant in asserting or protecting their rights.
speedy resolution of their case because they were
impression that political motivations played a vital role in
completely unaware that the investigation against them
activating and propelling the prosecutional process in this
was still on-going. Peculiar to this case, we reiterate, is the
case. Firstly, the complaint came to life, as it were, only We disagree. The constitutional right to speedy disposition
fact that petitioners were merely asked to comment, and
after petitioner Tatad had a falling out with President of cases does not come into play only when political
not file counter-affidavits which is the procedure to follow
Marcos. Secondly, departing from established procedures considerations are involved. The Constitution makes no
in a preliminary investigation. After giving their
prescribed by law for preliminary investigation, which such distinction. While political motivation in Tatad may
explanation and after four long years of being in the dark,
require the submission of affidavits and counter-affidavits have been a factor in the undue delay in the termination
petitioners, naturally, had reason to assume that the
by the complainant and the respondent and their of the preliminary investigation therein to justify the
charges against them had already been dismissed.
witnesses, the Tanodbayan referred the complaint to the invocation of their right to speedy disposition of cases, the
Presidential Security Command for fact-finding particular facts of each case must be taken into
investigation and report. consideration in the grant of the relief sought. In the Tatad
On the other hand, the Office of the Ombudsman failed to
case, we are reminded:
present any plausible, special or even novel reason which
could justify the four-year delay in terminating its
We find such blatant departure from the established
investigation. Its excuse for the delay-the many layers of
procedure as dubious, but revealing attempt to involve an In a number of cases, this Court has not hesitated to grant
review that the case had to undergo and the meticulous
office directly under the President in the prosecutional the so-called radical relief and to spare the accused from
scrutiny it had to entail has lost its novelty and is no longer
process lending credence to the suspicion that the the undergoing the rigors and expense of a full-blown trial
appealing, as was the invocation in the Tatad case. The
prosecution was politically motivated. We cannot where it is clear that he has been deprived of due process
incident before us does not involve complicated factual
emphasize too strongly that prosecutors should not allow, of law or other constitutional guaranteed rights. Of course,
and legal issues, specially in view of the fact that the
and should avoid, giving the impression that their noble it goes without saying that in the application of the
subject computerization contract had been mutually
office is being used or prostituted, wittingly or unwittingly, doctrine enunciated in those cases, particularly regard
cancelled by the parties thereto even before the Anti-Graft
for political ends, or other purposes alien to, or subversive must be taken of the facts and circumstances peculiar to
League filed its complaint.
of, the basic and fundamental objective observing the its case.[27]
31
 contemplation of the law, non-existent, as if no contract
was ever executed.
The Office of the Ombudsman capitalizes on petitioners May a judge issue a warrant of arrest solely on the basis of
three motions for extension of the time to file comment the report and recommendation of the investigating
which it imputed for the delay. However, the delay was prosecutor, without personally determining probable
WHEREFORE, premises considered, the petition is
not caused by the motions for extension. The delay cause by independently examining sufficient evidence
GRANTED and Criminal Case No. 23193 is hereby
occurred after petitioners filed their comment. Between submitted by the parties during the preliminary
DISMISSED. The temporary restraining order issued on 4
1992-1996, petitioners were under no obligation to make investigation?
September 1997 is made PERMANENT.
any move because there was no preliminary investigation
within the contemplation of Section 4, Rule II of A.O. No.
07 to speak of in the first place. The Case
SO ORDERED.

III This is the main question raised in these two consolidated

Narvasa, C.J., Romero, and Purisima, JJ., concur.
petitions for certiorari under Rule 65 of the Rules of Court
challenging the Sandiganbayans August 25, 1992
Finally, under the facts of the case, there is no basis in the Resolution[1] which answered the said query in the
law or in fact to charge petitioners for violation of Sec. 3(g) [G.R. No. 106632. October 9, 1997] affirmative.
of R.A. No. 3019. To establish probable cause against the
offender for violation of Sec. 3(g), the following elements
must be present: (1) the offender is a public officer; (2) he DORIS TERESA HO, petitioner, vs. PEOPLE OF THE The Facts
entered into a contract or transaction in behalf of the PHILIPPINES (represented by the Office of the Special
government; (3) the contract or transaction is grossly and Prosecutor of the Ombudsman) and the SANDIGANBAYAN
manifestly disadvantageous to the government. The (Second Division), respondents. Both petitions have the same factual backdrop. On August
second element of the crime that the accused public 8, 1991, the Anti-Graft League of the Philippines,
[G.R. No. 106678. October 9, 1997]
officers entered into a contract in behalf of the represented by its chief prosecutor and investigator, Atty.
government is absent. The computerization contract was Reynaldo L. Bagatsing, filed with the Office of the
rescinded on 6 May 1991 before SAR No. 91-05 came out Ombudsman a complaint[2] against Doris Teresa Ho,
ROLANDO S. NARCISO, petitioner, vs. PEOPLE OF THE
on 31 May 1991 and before the Anti-Graft League filed its Rolando S. Narciso (petitioners in G.R. Nos. 106632 and
PHILIPPINES (represented by the Office of the Special
complaint with the Ombudsman on 1 August 1991. Hence, 106678, respectively), Anthony Marden, Arsenio Benjamin
Prosecutor of the Ombudsman) and the SANDIGANBAYAN
at that time the Anti-Graft League instituted their Santos and Leonardo Odoo. The complaint was for alleged
(Second Division), respondents.
complaint and the Ombudsman issued its Order on 12 violation of Section 3 (g) of Republic Act 3019[3]
November 1991, there was no longer any contract to DECISION prohibiting a public officer from entering into any contract
speak of. The contract, after 6 May 1991 became in or transaction on behalf of the government if it is
PANGANIBAN, J.:
manifestly and grossly disadvantageous to the latter,
32
whether or not the public officer profited or will profit Corporation, of violation of Section 3(e) of RA 3019, as official functions as Vice-President of the National Steel
thereby. After due notice, all respondents therein filed amended, committed as follows: Corporation.
their respective counter-affidavits with supporting
documents. On January 8, 1992, Graft Investigation Officer
Titus P. Labrador (hereafter, GIO Labrador) submitted his That on or about April 4, 1989, and for sometime prior CONTRARY TO LAW.
resolution[4] with the following recommendations: and/or subsequent thereto, in the City of Manila,
Philippines and within the jurisdiction of this Honorable
Court, the above-named accused ROLANDO NARCISO, a Acting on the foregoing information, the Sandiganbayan
WHEREFORE, all premises considered, it is respectfully public officer, being then the Vice-President of the issued the now questioned warrant of arrest against
recommended that an information for violation of Section National Steel Corporation (NSC), a government-owned or Petitioners Ho and Narciso. Petitioner Ho initially
3 (g) of R.A. 3019 as amended be filed against respondent controlled corporation organized and operating under the questioned the issuance thereof in an Urgent Motion to
Rolando S. Narciso before the Sandiganbayan. Philippine laws, and DORIS TERESA HO, a private individual Recall Warrant of Arrest/Motion for Reconsideration
and then the President of National Marine Corporation which was adopted by Petitioner Narciso. They alleged
(NMC), a private corporation organized and operating that the Sandiganbayan, in determining probable cause for
It is likewise recommending that the case against the other under our Corporation law, conspiring and confederating the issuance of the warrant for their arrest, merely relied
respondents be DISMISSED for insufficiency of evidence. with one another, did then and there wilfully, unlawfully on the information and the resolution attached thereto,
and criminally, with evident bad faith and through filed by the Ombudsman without other supporting
manifest partiality, cause undue injury to the National evidence, in violation of the requirements of Section 2,
However, after a review of the above resolution, Special Steel Corporation (NSC), by entering without legal Article III of the Constitution, and settled jurisprudence.
Prosecution Officer Leonardo P. Tamayo (hereafter, SPO justification into a negotiated contract of affreightment Respondent Sandiganbayan denied said motion in the
Tamayo) recommended that both Rolando Narciso and disadvantageous to the NSC for the haulage of its products challenged Resolution. It ratiocinated in this wise:
Doris Teresa Ho be charged with violation of Section 3 (e) at the rate of P129.50/MT, from Iligan City to Manila,
of R.A. 3019. The resolution of GIO Labrador, as modified despite their full knowledge that the rate they have agreed
by the memorandum[5] of SPO Tamayo, was approved by upon was much higher than those offered by the Loadstar Considering, therefore, that this Court did not rely solely
Ombudsman Conrado M. Vasquez on May 5, 1992. Thus, Shipping Company, Inc. (LSCI) and Premier Shipping Lines, on the certification appearing in the information in this
herein petitioners were charged accordingly before the Inc. (PSLI), in the amounts of P109.56 and P123.00 per case in the determination of whether probable cause
Sandiganbayan in an information[6] filed on May 18, 1992. Metric Ton, respectively, in the public bidding held on June exists to justify the issuance of the warrant of arrest but
Attached to the information were the resolution of GIO 30, 1988, thereby giving unwarranted benefits to the also on the basis predominantly shown by the facts and
Labrador and the memorandum of SPO Tamayo. The said National Marine Corporation, in the total sum of One evidence appearing in the resolution/memorandum of
information reads: Million One Hundred Sixteen Thousand Fifty Two Pesos responsible investigators/ prosecutors, then the recall of
and Seventy Five Centavos (P1,116,052.75), Philippine the warrant of arrest, or the reconsideration sought for,
Currency, to the pecuniary damage and prejudice of the cannot be granted. More so, when the information, as
The undersigned Special Prosecution Officer III, Office of NSC in the aforestated sum. The said offense was filed, clearly shows that it is sufficient in form and
the Special Prosecutor, hereby accuses ROLANDO NARCISO committed by Rolando S. Narciso in the performance of his substance based on the facts and evidence adduced by
and DORIS TERESA HO, President of National Marine both parties during the preliminary investigation. To
33
require this Court to have the entire record of the investigating prosecutor, to support his conclusion and authority of judges to issue warrants of arrest, the Court
preliminary investigation to be produced before it, justify the issuance of an arrest warrant. Such evidence elucidated in Soliven vs. Makasiar[9]:
including the evidence submitted by the complainant and should not be merely described in a prosecutors
the accused-respondents, would appear to be an exercise resolution. Citing People vs. Inting,[8] petitioners insist
in futility. that the judge must have before him the report, the What the Constitution underscores is the exclusive and
affidavits, the transcripts of stenographic notes (if any), personal responsibility of the issuing judge to satisfy
and all other supporting documents which are material in himself of the existence of probable cause. In satisfying
Thus, these petitions. assisting the judge to make his determination. 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.
The Issue The Courts Ruling Following established doctrine and procedure, he shall: (1)
personally evaluate the report and the supporting
documents submitted by the fiscal regarding the existence
Petitioner Ho raises this sole issue: The petitions are meritorious. 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
May a judge determine probable cause and issue [a] The pertinent provision of the Constitution reads: require the submission of supporting affidavits of
warrant of arrest solely on the basis of the resolution of witnesses to aid him in arriving at a conclusion as to the
the prosecutor (in the instant case, the Office of the existence of probable cause.[10] [underscoring supplied]
Special Prosecutor of the Ombudsman) who conducted the Section 2 [, Article III]. The right of the people to be secure
preliminary investigation, without having before him any in their persons, houses, papers, and effects against
of the evidence (such as complainants affidavit, unreasonable searches and seizures of whatever nature We should stress that the 1987 Constitution requires the
respondents counter-affidavit, exhibits, etc.) which may and for any purpose shall be inviolable, and no search judge to determine probable cause personally. The word
have been submitted at the preliminary investigation?[7] warrant or warrant of arrest shall issue except upon personally does not appear in the corresponding
probable cause to be determined personally by the judge provisions of our previous Constitutions. This emphasis
after examination under oath or affirmation of the shows the present Constitutions intent to place a greater
In his separate petition, Rolando S. Narciso adopts the complainant and the witnesses he may produce and degree of responsibility upon trial judges than that
foregoing and raises no other distinct issue. particularly describing the place to be searched and the imposed under the previous Charters.
persons or things to be seized. (Underscoring supplied.)

Petitioners Ho and Narciso similarly contend that a judge, While affirming Soliven, People vs. Inting[11] elaborated
in personally determining the existence of probable cause, In explaining the object and import of the aforequoted on what determination of probable cause entails,
must have before him sufficient evidence submitted by the constitutional mandate, particularly the power and the differentiating the judges object or goal from that of the
parties, other than the information filed by the prosecutors.

34
 And clarifying the statement in People vs. Delgado[13] -- whenever necessary. He should call for [the] complainant
that the trial court may rely on the resolution of the and [the] witnesses themselves to answer the courts
First, the determination of probable cause is a function of
COMELEC to file the information, by the same token that it probing questions when the circumstances of the case so
the Judge. It is not for the Provincial Fiscal or Prosecutor
may rely on the certification made by the prosecutor who require.[15] [underscoring supplied]
nor for the Election Supervisor to ascertain. Only the Judge
conducted the preliminary investigation, in the issuance of
and the Judge alone makes this determination.
the warrant of arrest -- this Court underscored in Lim Sr.
vs. Felix[14] that [r]eliance on the COMELEC resolution or The above rulings in Soliven, Inting and Lim Sr. were
the Prosecutors certification presupposes that the records iterated in Allado vs. Diokno[16] where we explained again
Second, the preliminary inquiry made by a Prosecutor does of either the COMELEC or the Prosecutor have been what probable cause means. Probable cause for the
not bind the Judge. It merely assists him to make the submitted to the Judge and he relies on the certification or issuance of a warrant of arrest is the existence of such
determination of probable cause. The Judge does not have resolution because the records of the investigation sustain facts and circumstances that would lead a reasonably
to follow what the Prosecutor presents to him. By itself, the recommendation. We added, The warrant issues not discreet and prudent person to believe that an offense has
the Prosecutors certification of probable cause is on the strength of the certification standing alone but been committed by the person sought to be arrested.[17]
ineffectual. It is the report, the affidavits the transcripts of because of the records which sustain it. Summing up, the Hence, the judge, before issuing a warrant of arrest, must
stenographic notes (if any), and all other supporting Court said: satisfy himself that based on the evidence submitted there
documents behind the Prosecutors certification which are
is sufficient proof that a crime has been committed and
material in assisting the Judge to make his determination.
that the person to be arrested is probably guilty thereof.
We reiterate the ruling in Soliven vs. Makasiar that the [18] At this stage of the criminal proceeding, the judge is
Judge does not have to personally examine the not yet tasked to review in detail the evidence submitted
And third, Judges and Prosecutors alike should distinguish complainant and his witnesses. The Prosecutor can during the preliminary investigation. It is sufficient that he
the preliminary inquiry which determines probable cause perform the same functions as a commissioner for the personally evaluates such evidence in determining
for the issuance of a warrant of arrest from the preliminary taking of the evidence. However, there should be a report probable cause.[19] In Webb vs. De Leon,[20] we stressed
investigation proper which ascertains whether the and necessary documents supporting the Fiscals bare that the judge merely determines the probability, not the
offender should be held for trial or released. Even if the certification. All of these should be before the Judge. certainty, of guilt of the accused and, in doing so, he need
two inquiries are conducted in the course of one and the not conduct a de novo hearing. He simply personally
same proceeding, there should be no confusion about the reviews the prosecutors initial determination finding
objectives. The determination of probable cause for the probable cause to see if it is supported by substantial
The extent of the Judges personal examination of the
warrant of arrest is made by the Judge. The preliminary evidence.
report and its annexes depends on the circumstances of
investigation proper -- whether or not there is reasonable
each case. We cannot determine beforehand how cursory
ground to believe that the accused is guilty of the offense
or exhaustive the Judges examination should be. The Judge
charged and, therefore, whether or not he should be
has to exercise sound discretion for, after all, the personal In the recent case of Roberts Jr. vs. Court of Appeals,[21]
subjected to the expense, rigors and embarrassment of
determination is vested in the Judge by the Constitution. It this Courts application of the dictum laid down in Soliven --
trial -- is the function of the Prosecutor.[12]
can be as brief or as detailed as the circumstances of each affirmed and fortified in Inting, Lim Sr., Allado and Webb --
case require. To be sure, the Judge must go beyond the should lay to rest the issue raised in the instant petitions.
Prosecutors certification and investigation report In Roberts Jr., this Court, through Mr. Justice Hilario G.
35
Davide, Jr., set aside the order of the respondent judge But in this particular case we believe there is a prima facie proper bidding procedures. GIO Labradors findings and
directing inter alia the issuance of warrants of arrest case based on our examination of the resolution because recommendations, extensively set out in his thirteen-page
against the accused, reasoning that said judge did not we believe, we think the Ombudsman will not approve a resolution, is complemented by the three-page
personally determine the existence of probable cause, resolution just like that, without evidence to back it up. Memorandum of Special Prosecution Officer II Leonardo P.
since he had only the information, amended information, [22] Tamayo, both of which meticulously delved into the merits
and Joint Resolution as bases thereof. He did not have the and demerits of the evidence presented by the
records or evidence supporting the prosecutors finding of complainant and accused-respondents and which resulted
probable cause. In attempting to further justify its challenged action, the in their respective recommendation which led the
public respondent explained in its assailed Resolution: Honorable Conrado M. Vasquez to approve the
recommendations of Deputy Special Prosecutor Jose de G.
In like manner, herein Respondent Sandiganbayan had Ferrer and Special Prosecutor Aniano A. Desierto for the
only the information filed by the Office of the In the instant case, there are attached to the information, filing of the information in the case at bar.
Ombudsman, the thirteen-page resolution of the two (2) Memorandum/Resolution (sic) emanating from the
investigating officer and the three-page memorandum of Offices of the Ombudsman and the Special Prosecutor (Pp.
the prosecution officer, when it issued the warrant of 4-6, 7-19, respectively, Record) which clearly and xxx xxx xxx
arrest against the petitioners. The latter two indubitably established, firstly, the conduct of a due and
documents/reports even had dissimilar recommendations proper preliminary investigation, secondly, the approval by
-- the first indicting only Petitioner Narciso, the second proper officials clothed with statutory authority; and Considering, therefore, that this Court did not rely solely
including Petitioner Ho. This alone should have prompted thirdly, the determination and ascertainment of probable on the certification appearing in the information in this
the public respondent to verify, in the records and other cause based on the documentary evidence submitted by case in the determination of whether probable cause
documents submitted by the parties during the the complainant (Anti-Graft League of the Philippines), exists to justify the issuance of the warrant of arrest but
preliminary investigation, whether there was sufficient foremost among which is the Contract of Affreightment also on the basis predominantly shown by the facts and
evidence to sustain the Ombudsmans action charging both entered into between National Steel Corporation (NSC), evidence appearing in the resolution/memorandum of
petitioners with violation of Sec. 3(e) of Anti-Graft law. But and National Marine Corporation (NMC) and the COA-NSC responsible investigators/ prosecutors, then the recall of
in its initial justification of the issuance of the warrant, the audit report, together with the counter-affidavits of the warrant of arrest, or the reconsideration sought for,
Sandiganbayan simply said: accused Rolando Narciso and NMC officials, among whom cannot be granted. More so, when the information, as
is accused-movant. Outlined in detail in the aforesaid filed, clearly shows that it is sufficient in form and
Resolution of Titus P. Labrador, Graft Investigation Officer substance based on the facts and evidence adduced by
JUSTICE ESCAREAL: II, which was reviewed by Attys. Romeo I. Tan and Arturo both parties during the preliminary investigation. To
Mojica, Director, Community Coordination Bureau and require this Court to have the entire record of the
Assistant Ombudsman, PACPO, [respectively,] are the facts preliminary investigation to be produced before it,
xxx xxx xxx leading to the questioned transaction between NSC and including the evidence submitted by the complainant and
NMC, together with an evaluation of the propriety and the accused-respondents, would appear to be an exercise
legality of the bidding process involved therein and which in futility.[23]
revealed that there were supposed non-compliance with
36
 burden of the judge and speed up the litigation process by True, in Webb vs. De Leon, we found that the painstaking
forwarding to the latter not only the information and his recital and analysis of the parties evidence made in the
In light of the aforecited decisions of this Court, such
bare resolution finding probable cause, but also so much DOJ Panel Report satisfied both judges that there [was]
justification cannot be upheld. Lest we be too repetitive,
of the records and the evidence on hand as to enable His probable cause to issue warrants of arrest against
we only wish to emphasize three vital matters once more:
Honor to make his personal and separate judicial finding petitioners. This statement may have been wrongly
First, as held in Inting, the determination of probable
on whether to issue a warrant of arrest.[25] construed by the public respondent to mean that the
cause by the prosecutor is for a purpose different from
narration or description of portions of the evidence in the
that which is to be made by the judge. Whether there is
prosecutors report may serve as sufficient basis to make
reasonable ground to believe that the accused is guilty of
Lastly, it is not required that the complete or entire its own independent judgment. What it should bear in
the offense charged and should be held for trial is what the
records of the case during the preliminary investigation be mind, however, is that, aside from the 26-page report of
prosecutor passes upon. The judge, on the other hand,
submitted to and examined by the judge.[26] We do not the DOJ panel, the sworn statements of three witnesses
determines whether a warrant of arrest should be issued
intend to unduly burden trial courts by obliging them to and counter-affidavits of the petitioners in Webb were also
against the accused, i.e. whether there is a necessity for
examine the complete records of every case all the time submitted to the trial court, and the latter is presumed to
placing him under immediate custody in order not to
simply for the purpose of ordering the arrest of an have reviewed these documents as well, prior to its
frustrate the ends of justice.[24] Thus, even if both should
accused. What is required, rather, is that the judge must issuance of the warrants of arrest.
base their findings on one and the same proceeding or
have sufficient supporting documents (such as the
evidence, there should be no confusion as to their distinct
complaint, affidavits, counter-affidavits, sworn statements
objectives.
of witnesses or transcripts of stenographic notes, if any) In the instant case, the public respondent relied fully and
upon which to make his independent judgment or, at the completely upon the resolution of the graft investigation
very least, upon which to verify the findings of the officer and the memorandum of the reviewing prosecutor,
Second, since their objectives are different, the judge
prosecutor as to the existence of probable cause. The attached to the information filed before it, and its
cannot rely solely on the report of the prosecutor in
point is: he cannot rely solely and entirely on the conjecture that the Ombudsman would not have approved
finding probable cause to justify the issuance of a warrant
prosecutors recommendation, as Respondent Court did in their recommendation without supporting evidence. It had
of arrest. Obviously and understandably, the contents of
this case. Although the prosecutor enjoys the legal no other documents from either the complainant (the
the prosecutors report will support his own conclusion
presumption of regularity in the performance of his official Anti-Graft League of the Philippines) or the People from
that there is reason to charge the accused of an offense
duties and functions, which in turn gives his report the which to sustain its own conclusion that probable cause
and hold him for trial. However, the judge must decide
presumption of accuracy, the Constitution, we repeat, exists. Clearly and ineluctably, Respondent Courts findings
independently. Hence, he must have supporting evidence,
commands the judge to personally determine probable of the conduct of a due and proper preliminary
other than the prosecutors bare report, upon which to
cause in the issuance of warrants of arrest. This Court has investigation and the approval by proper officials clothed
legally sustain his own findings on the existence (or
consistently held that a judge fails in his bounden duty if with statutory authority are not equivalent to the
nonexistence) of probable cause to issue an arrest order.
he relies merely on the certification or the report of the independent and personal responsibility required by the
This responsibility of determining personally and
investigating officer. Constitution and settled jurisprudence. At least some of
independently the existence or nonexistence of probable
the documentary evidence mentioned (Contract of
cause is lodged in him by no less than the most basic law
Affreightment between National Steel Corporation and
of the land. Parenthetically, the prosecutor could ease the
National Marine Corporation, the COA-NSC audit report,
37
and counter-affidavits of Rolando Narciso and NMC
officials), upon which the investigating officials of the
Ombudsman reportedly ascertained the existence of
probable cause, should have been physically present
before the public respondent for its examination, to
enable it to determine on its own whether there is
substantial evidence to support the finding of probable
cause. But it stubbornly stood pat on its position that it
had essentially complied with its responsibility.
Indisputably, however, the procedure it undertook
contravenes the Constitution and settled jurisprudence.
Respondent Court palpably committed grave abuse of
discretion in ipso facto issuing the challenged warrant of
arrest on the sole basis of the prosecutors findings and
recommendation, and without determining on its own the
issue of probable cause based on evidence other than such
bare findings and recommendation.

WHEREFORE, the petitions are GRANTED and the assailed

Resolution is SET ASIDE. The warrant issued by the
Sandiganbayan (Second Division) on May 20, 1992 in Case
No. 17674 for the arrest of Petitioners Doris Teresa Ho and
Rolando Narciso is hereby declared NULL AND VOID.

SO ORDERED.

Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo,

Melo, Puno, Vitug, Kapunan, Mendoza, Francisco,
Hermosisima, and Torres, Jr., JJ., concur.

38