to operate as a valid waiver on his part.
Neither can the non-issuance of a writ of preliminary
VI. PRELIMINARY INVESTIGATION (RULE 112)
G.R. No. 182677. August 3, 2010.
JOSE ANTONIO C. LEVISTE, petitioner, vs. HON. ELMO M. ALAMEDA, HON.
RAUL M. GONZALEZ, HON. EMMANUEL Y. VELASCO, HEIRS OF THE LATE
RAFAEL DE LAS ALAS, respondents.
Judgments; Moot and Academic Issues; Waiver; Waiver on the part of the accused must
be distinguished from mootness of the petition, for in the present case, petitioner did not, by his
active participation in the trial, waive his stated objections.—The Office of the Solicitor General
(OSG) later argued that the present petition had been rendered moot since the presentation of
evidence, wherein petitioner actively participated, had been concluded. Waiver on the part of
the accused must be distinguished from mootness of the petition, for in the present case,
petitioner did not, by his active participation in the trial, waive his stated objections.
Criminal Procedure; Arraignment; Bail; Waiver; An accused, in applying for bail, does not
waive his right to challenge the regularity of the reinvestigation of the charge against him, the
validity of the admission of the Amended Information, and the legality of his arrest under the
Amended Information, where he vigorously raised them prior to his arraignment; The principle
that the accused is precluded after arraignment from questioning the illegal arrest or the lack of
or irregular preliminary investigation applies “only if he voluntarily enters his plea and
participates during trial, without previously invoking his objections thereto.—Section 26, Rule
114 of the Rules of Court provides: SEC. 26. Bail not a bar to objections on illegal arrest, lack of
or irregular preliminary investigation.—An application for or admission to bail shall not bar the
accused from challenging the validity of his arrest or the legality of the warrant issued therefor,
or from assailing the regularity or questioning the absence of a preliminary investigation of the
charge against him, provided that he raises them before entering his plea. The court shall
resolve the matter as early as practicable but not later than the start of the trial of the case. By
applying for bail, petitioner did not waive his right to challenge the regularity of the
reinvestigation of the charge against him, the validity of the admission of the Amended
Information, and the legality of his arrest under the Amended Information, as he vigorously
raised them prior to his arraignment. During the arraignment on March 21, 2007, petitioner
refused to enter his plea since the issues he raised were still pending resolution by the appellate
court, thus prompting the trial court to enter a plea of “not guilty” for him. The principle that the
accused is precluded after arraignment from questioning the illegal arrest or the lack of or
irregular preliminary investigation applies “only if he voluntarily enters his plea and participates
during trial, without previously invoking his objections thereto.” There must be clear and
convincing proof that petitioner had an actual intention to relinquish his right to question the
existence of probable cause. When the only proof of intention rests on what a party does, his act
should be so manifestly consistent with, and indicative of, an intent to voluntarily and
unequivocally relinquish the particular right that no other explanation of his conduct is possible.
Same; Same; Same; Same; Injunction; The non-issuance of an injunctive relief only
means that the appellate court did not preliminarily find any exception to the long-standing
doctrine that injunction will not lie to enjoin a criminal prosecution.—Whatever delay arising from
petitioner’s availment of remedies against the trial court’s Orders cannot be imputed to petitioner
injunction be deemed as a voluntary relinquishment of petitioner’s principal prayer. The non-
issuance of such injunctive relief only means that the appellate court did not preliminarily find
any exception to the long-standing doctrine that injunction will not lie to enjoin a criminal
prosecution. Consequently, the trial of the case took its course.
Same; Same; Same; Moot and Academic Issues; Words and Phrases; A moot and
academic case is one that ceases to present a justiciable controversy by virtue of supervening
events, so that a declaration thereon would be of no practical use or value; The judgment
convicting petitioner of homicide under the Amended Information for murder operates as a
supervening event that mooted the present petition; Instead, however, of denying the petition
outright on the ground of mootness, the Court proceeds to resolve the legal issues in order to
formulate controlling principles to guide the bench, bar and public—in the present case, there is
compelling reason to clarify the remedies available before and after the filing of an information in
cases subject of inquest.—A moot and academic case is one that ceases to present a justiciable
controversy by virtue of supervening events, so that a declaration thereon would be of no
practical use or value. The judgment convicting petitioner of homicide under the Amended
Information for murder operates as a supervening event that mooted the present petition.
Assuming that there is ground to annul the finding of probable cause for murder, there is no
practical use or value in abrogating the concluded proceedings and retrying the case under the
original Information for homicide just to arrive, more likely or even definitely, at the same
conviction of homicide. Mootness would have also set in had petitioner been convicted of
murder, for proof beyond reasonable doubt, which is much higher than probable cause, would
have been established in that instance. Instead, however, of denying the petition outright on the
ground of mootness, the Court proceeds to resolve the legal issues in order to formulate
controlling principles to guide the bench, bar and public. In the present case, there is compelling
reason to clarify the remedies available before and after the filing of an information in cases
subject of inquest.
Same; Preliminary Investigation; Inquest; Words and Phrases; Inquest is defined as an
informal and summary investigation conducted by a public prosecutor in criminal cases involving
persons arrested and detained without the benefit of a warrant of arrest issued by the court for
the purpose of determining whether said persons should remain under custody and
correspondingly be charged in court.—A preliminary investigation is required before the filing of
a complaint or information for an offense where the penalty prescribed by law is at least four
years, two months and one day without regard to fine. As an exception, the rules provide that
there is no need for a preliminary investigation in cases of a lawful arrest without a warrant
involving such type of offense, so long as an inquest, where available, has been conducted.
Inquest is defined as an informal and summary investigation conducted by a public prosecutor in
criminal cases involving persons arrested and detained without the benefit of a warrant of arrest
issued by the court for the purpose of determining whether said persons should remain under
custody and correspondingly be charged in court.
Same; Same; Same; Before the filing of complaint or information in court, the private
complainant may proceed in coordinating with the arresting officer and the inquest officer during
the latter’s conduct of inquest, while the arrested person has the option to avail of a 15-day
preliminary investigation, provided he duly signs a waiver of any objection against delay in his
delivery to the proper judicial authorities under Article 125 of the Revised Penal Code; The
accelerated process of inquest, owing to its summary nature and the attendant risk of running
against Article 125, ends with either the prompt filing of an information in court or the immediate
release of the arrested person—the rules on inquest do not provide for a motion for
reconsideration.—It is imperative to first take a closer look at the predicament of both the
arrested person and the private complainant during the brief period of inquest, to grasp the
respective remedies available to them before and after the filing of a complaint or information in
court. BEFORE THE FILING OF COMPLAINT OR INFORMATION IN COURT, the private
complainant may proceed in coordinating with the arresting officer and the inquest officer during
the latter’s conduct of inquest. Meanwhile, the arrested person has the option to avail of a 15-
day preliminary investigation, provided he duly signs a waiver of any objection against delay in
his delivery to the proper judicial authorities under Article 125 of the Revised Penal Code. For
obvious reasons, this remedy is not available to the private complainant since he cannot waive
what he does not have. The benefit of the provisions of Article 125, which requires the filing of a
complaint or information with the proper judicial authorities within the applicable period, belongs
to the arrested person. The accelerated process of inquest, owing to its summary nature and the
attendant risk of running against Article 125, ends with either the prompt filing of an information
in court or the immediate release of the arrested person. Notably, the rules on inquest do not
provide for a motion for reconsideration.
Same; Same; Same; In cases subject of inquest, the private party should first avail of a
preliminary investigation or reinvestigation, if any, before elevating the matter to the Department
of Justice (DOJ) Secretary.—Contrary to petitioner’s position that private complainant should
have appealed to the DOJ Secretary, such remedy is not immediately available in cases subject
of inquest. Noteworthy is the proviso that the appeal to the DOJ Secretary is by “petition by a
proper party under such rules as the Department of Justice may prescribe.” The rule referred to
is the 2000 National Prosecution Service Rule on Appeal, Section 1 of which provides that the
Rule shall “apply to appeals from resolutions x x x in cases subject of preliminary investigation/
reinvestigation.” In cases subject of inquest, therefore, the private party should first avail of a
preliminary investigation or reinvestigation, if any, before elevating the matter to the DOJ
Secretary. In case the inquest proceedings yield no probable cause, the private complainant
may pursue the case through the regular course of a preliminary investigation.
Same; Same; Reinvestigation; Once a complaint or information is filed in court, the
accused is provided with another opportunity to ask for a preliminary investigation within five
days from the time he learns of its filing, while a private complainant can move for reinvestigation
in cases he is allowed to intervene by counsel in the criminal action and is granted the authority
to prosecute, with the conformity of the public prosecutor.—ONCE A COMPLAINT OR
INFORMATION IS FILED IN COURT, the rules yet provide the accused with another opportunity
to ask for a preliminary investigation within five days from the time he learns of its filing. The
Rules of Court and the New Rules on Inquest are silent, however, on whether the private
complainant could invoke, as respondent heirs of the victim did in the present case, a similar
right to ask for a reinvestigation. The Court holds that the private complainant can move for
reinvestigation, subject to and in light of the ensuing disquisition. All criminal actions commenced
by a complaint or information shall be prosecuted under the direction and control of the public
prosecutor. The private complainant in a criminal case is merely a witness and not a party to the
case and cannot, by himself, ask for the reinvestigation of the case after the information had
been filed in court, the proper party for that being the public prosecutor who has the control of
the prosecution of the case. Thus, in cases where the private complainant is allowed to
intervene by counsel in the criminal action, and is granted the authority to prosecute, the private
complainant, by counsel and with the conformity of the public prosecutor, can file a motion for
reinvestigation.
Same; Same; Same; Amendment of Information; An information which is void ab initio
cannot be amended to obviate a ground for quashal; An amendment which operates to vest
jurisdiction upon the trial court is likewise impermissible.—Before the accused enters a plea, a
formal or substantial amendment of the complaint or information may be made without leave of
court. After the entry of a plea, only a formal amendment may be made but with leave of court
and only if it does not prejudice the rights of the accused. After arraignment, a substantial
amendment is proscribed except if the same is beneficial to the accused. It must be clarified
though that not all defects in an information are curable by amendment prior to entry of plea. An
information which is void ab initio cannot be amended to obviate a ground for quashal. An
amendment which operates to vest jurisdiction upon the trial court is likewise impermissible.
Same; Same; Same; Same; Any remedial measure springing from the reinvestigation—
be it a complete disposition or an intermediate modification of the charge—is eventually
addressed to the sound discretion of the trial court, which must make an independent evaluation
or assessment of the merits of the case.—Considering the general rule that an information may
be amended even in substance and even without leave of court at any time before entry of plea,
does it mean that the conduct of a reinvestigation at that stage is a mere superfluity? It is not.
Any remedial measure springing from the reinvestigation—be it a complete disposition or an
intermediate modification of the charge—is eventually addressed to the sound discretion of the
trial court, which must make an independent evaluation or assessment of the merits of the case.
Since the trial court would ultimately make the determination on the proposed course of action, it
is for the prosecution to consider whether a reinvestigation is necessary to adduce and review
the evidence for purposes of buttressing the appropriate motion to be filed in court.
Same; Same; Same; Same; Due process of law demands that no substantial amendment
of an information may be admitted without conducting another or a new preliminary
investigation.—Reinvestigation is required in cases involving a substantial amendment of the
information. Due process of law demands that no substantial amendment of an information may
be admitted without conducting another or a new preliminary investigation. In Matalam v. The
2nd Division of the Sandiganbayan, 455 SCRA 736 (2005), the Court ruled that a substantial
amendment in an information entitles an accused to another preliminary investigation, unless the
amended information contains a charge related to or is included in the original Information.
Same; Same; Same; Same; The amendment of the Information from homicide to murder
is a substantial amendment which would make it not just a right but a duty of the prosecution to
ask for a preliminary investigation.—The question to be resolved is whether the amendment of
the Information from homicide to murder is considered a substantial amendment, which would
make it not just a right but a duty of the prosecution to ask for a preliminary investigation. The
Court answers in the affirmative. A substantial amendment consists of the recital of facts
constituting the offense charged and determinative of the jurisdiction of the court. All
other matters are merely of form. The following have been held to be mere formal
amendments: (1) new allegations which relate only to the range of the penalty that the court
might impose in the event of conviction; (2) an amendment which does not charge another
offense different or distinct from that charged in the original one; (3) additional allegations
which do not alter the prosecution’s theory of the case so as to cause surprise to the accused
and affect the form of defense he has or will assume; (4) an amendment which does not
adversely affect any substantial right of the accused; and (5) an amendment that merely adds
specifications to eliminate vagueness in the information and not to introduce new and material
facts, and merely states with additional precision something which is already contained in the
original information and which adds nothing essential for conviction for the crime charged. The
test as to whether a defendant is prejudiced by the amendment is whether a defense under the
information as it originally stood would be available after the amendment is made, and whether
any evidence defendant might have would be equally applicable to the information in the one
form as in the other. An amendment to an information which does not change the nature of the
crime alleged therein does not affect the essence of the offense or cause surprise or deprive the
accused of an opportunity to meet the new averment had each been held to be one of form and
not of substance.
Same; Same; Same; Same; The mere fact that the two charges are related does not
necessarily or automatically deprive the accused of his right to another preliminary
investigation.—Matalam adds that the mere fact that the two charges are related does not
necessarily or automatically deprive the accused of his right to another preliminary
investigation. Notatu dignum is the fact that both the original Information and the amended
Information in Matalam were similarly charging the accused with violation of Section 3(e) of the
Anti-Graft and Corrupt Practices Act.
Same; Same; Same; Same; Words and Phrases; There is no substantial distinction
between a preliminary investigation and a reinvestigation since both are conducted in the same
manner and for the same objective of determining whether there exists sufficient ground to
engender a well-founded belief that a crime has been committed and the respondent is probably
guilty thereof and should be held for trial.—Considering that another or a new preliminary
investigation is required, the fact that what was conducted in the present case was a
reinvestigation does not invalidate the substantial amendment of the Information. There is no
substantial distinction between a preliminary investigation and a reinvestigation since both are
conducted in the same manner and for the same objective of determining whether there exists
sufficient ground to engender a well-founded belief that a crime has been committed and the
respondent is probably guilty thereof and should be held for trial. What is essential is that
petitioner was placed on guard to defend himself from the charge of murder after the claimed
circumstances were made known to him as early as the first motion.
Same; Same; Same; Same; The rules do not even require, as a condition sine qua non to
the validity of a preliminary investigation, the presence of the respondent as long as efforts to
reach him were made and an opportunity to controvert the complainant’s evidence was
accorded him.—Petitioner did not, however, make much of the opportunity to present
countervailing evidence on the proposed amended charge. Despite notice of hearing, petitioner
opted to merely observe the proceedings and declined to actively participate, even with extreme
caution, in the reinvestigation. Mercado v. Court of Appeals, 245 SCRA 594 (1995) states that
the rules do not even require, as a condition sine qua non to the validity of a preliminary
investigation, the presence of the respondent as long as efforts to reach him were made and an
opportunity to controvert the complainant’s evidence was accorded him.
Same; Same; Judges; Bias and Partiality; The pace in resolving incidents of the case is
not per se an indication of bias.—Regarding petitioner’s protestations of haste, suffice to state
that the pace in resolving incidents of the case is not per se an indication of bias. In Santos-
Concio v. Department of Justice, 543 SCRA 70 (2008), the Court held: Speed in the conduct of
proceedings by a judicial or quasi-judicial officer cannot per se be instantly attributed to an
injudicious performance of functions. For one’s prompt dispatch may be another’s undue haste.
The orderly administration of justice remains as the paramount and constant consideration, with
particular regard of the circumstances peculiar to each case. The presumption of regularity
includes the public officer’s official actuations in all phases of work. Consistent with such
presumption, it was incumbent upon petitioners to present contradictory evidence other than a
mere tallying of days or numerical calculation. This, petitioners failed to discharge. The swift
completion of the Investigating Panel’s initial task cannot be relegated as shoddy or shady
without discounting the presumably regular performance of not just one but five state
prosecutors.
Same; Same; There is a hierarchy of officials in the prosecutory arm of the executive
branch headed by the Secretary of Justice who is vested with the prerogative to appoint a
special prosecutor or designate an acting prosecutor to handle a particular case, which broad
power of control has been recognized by jurisprudence.—There is no ground for petitioner’s
protestations against the DOJ Secretary’s sudden designation of Senior State Prosecutor
Emmanuel Velasco as Acting City Prosecutor of Makati City for the present case and the latter’s
conformity to the motion for reinvestigation. In granting the reinvestigation, Judge Alameda
cannot choose the public prosecutor who will conduct the reinvestigation or preliminary
investigation. There is a hierarchy of officials in the prosecutory arm of the executive branch
headed by the Secretary of Justice who is vested with the prerogative to appoint a special
prosecutor or designate an acting prosecutor to handle a particular case, which broad power of
control has been recognized by jurisprudence.
Same; Same; Quantum of Proof; The standard of strong evidence of guilt which is
sufficient to deny bail to an accused is markedly higher than the standard of judicial probable
cause which is sufficient to initiate a criminal case.—That the evidence of guilt was not strong as
subsequently assessed in the bail hearings does not affect the prior determination of probable
cause because, as the appellate court correctly stated, the standard of strong evidence of guilt
which is sufficient to deny bail to an accused is markedly higher than the standard of judicial
probable cause which is sufficient to initiate a criminal case.
Same; Same; Probable Cause; There are two kinds of determination of probable cause:
executive and judicial; The executive determination of probable cause is one made during
preliminary investigation; The judicial determination of probable cause is one made by the judge
to ascertain whether a warrant of arrest should be issued against the accused.—There are two
kinds of determination of probable cause: executive and judicial. The executive determination of
probable cause is one made during preliminary investigation. It is a function that properly
pertains to the public prosecutor who is given a broad discretion to determine whether probable
cause exists and to charge those whom he believes to have committed the crime as defined by
law and thus should be held for trial. Otherwise stated, such official has the quasi-judicial
authority to determine whether or not a criminal case must be filed in court. Whether that
function has been correctly discharged by the public prosecutor, i.e., whether he has made a
correct ascertainment of the existence of probable cause in a case, is a matter that the trial court
itself does not and may not be compelled to pass upon. The judicial determination of probable
cause is one made by the judge to ascertain whether a warrant of arrest should be issued
against the accused. The judge must satisfy himself that based on the evidence submitted, there
is necessity for placing the accused under custody in order not to frustrate the ends of justice. If
the judge finds no probable cause, the judge cannot be forced to issue the arrest warrant.
Paragraph (a), Section 5, Rule 112 of the Rules of Court outlines the procedure to be followed
by the RTC.
Same; Same; Same; Judicial Determination of Probable Cause; To move the court to
conduct a judicial determination of probable cause is a mere superfluity, for with or without such
motion, the judge is duty-bound to personally evaluate the resolution of the public prosecutor
and the supporting evidence.—To move the court to conduct a judicial determination of probable
cause is a mere superfluity, for with or without such motion, the judge is duty-bound to
personally evaluate the resolution of the public prosecutor and the supporting evidence. In fact,
the task of the presiding judge when the Information is filed with the court is first and foremost to
determine the existence or non-existence of probable cause for the arrest of the accused. What
the Constitution underscores is the exclusive and personal responsibility of the issuing judge to
satisfy himself of the existence of probable cause. But the judge is not required to personally
examine the complainant and his witnesses. Following established doctrine and procedure,
he shall (1) personally evaluate the report and the supporting documents submitted by the
prosecutor regarding the existence of probable cause, and on the basis thereof, he may already
make a personal determination of the existence of probable cause; and (2) if he is not satisfied
that probable cause exists, he may disregard the prosecutor’s report and require the submission
of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of
probable cause. (emphasis and underscoring supplied)
Same; Same; Same; The accused cannot, as a matter of right, insist on a hearing for
judicial determination of probable cause.—The rules do not require cases to be set for hearing to
determine probable cause for the issuance of a warrant of arrest of the accused before any
warrant may be issued. Petitioner thus cannot, as a matter of right, insist on a hearing for judicial
determination of probable cause. Certainly, petitioner “cannot determine beforehand how
cursory or exhaustive the [judge’s] examination of the records should be [since t]he extent of the
judge’s examination depends on the exercise of his sound discretion as the circumstances of the
case require.” In one case, the Court emphatically stated: The periods provided in the Revised
Rules of Criminal Procedure are mandatory, and as such, the judge must determine the
presence or absence of probable cause within such periods. The Sandiganbayan’s
determination of probable cause is made ex parte and is summary in nature, not
adversarial. The Judge should not be stymied and distracted from his determination of
probable cause by needless motions for determination of probable cause filed by the
accused. (emphasis and underscoring supplied)
Same; Preliminary Investigation; Reinvestigation; It is not material that no new matter or
evidence was presented during the reinvestigation of the case—reinvestigation, as the word
itself implies, is merely a repeat investigation of the case which is simply a chance for the
prosecutor to review and re-evaluate its findings and the evidence already submitted.—
Petitioner proceeds to discuss at length evidentiary matters, arguing that no circumstances exist
that would qualify the crime from homicide to murder. The allegation of lack of substantial or
material new evidence deserves no credence, because new pieces of evidence are not
prerequisites for a valid conduct of reinvestigation. It is not material that no new matter or
evidence was presented during the reinvestigation of the case. It should be stressed that
reinvestigation, as the word itself implies, is merely a repeat investigation of the case. New
matters or evidence are not prerequisites for a reinvestigation, which is simply a chance for the
prosecutor to review and re-evaluate its findings and the evidence already submitted.
Certiorari; Although it is possible that error may be committed in the discharge of lawful
functions, this does not render the act amenable to correction and annulment by the
extraordinary remedy of certiorari, absent any showing of grave abuse of discretion amounting to
excess of jurisdiction.—Under Rule 45 of the Rules of Court, only questions of law may be
raised in, and be subject of, a petition for review on certiorari since this Court is not a trier of
facts. The Court cannot thus review the evidence adduced by the parties on the issue of the
absence or presence of probable cause, as there exists no exceptional circumstances to warrant
a factual review. In a petition for certiorari, like that filed by petitioner before the appellate court,
the jurisdiction of the court is narrow in scope. It is limited to resolving only errors of jurisdiction.
It is not to stray at will and resolve questions and issues beyond its competence, such as an
error of judgment. The court’s duty in the pertinent case is confined to determining whether the
executive and judicial determination of probable cause was done without or in excess of
jurisdiction or with grave abuse of discretion. Although it is possible that error may be committed
in the discharge of lawful functions, this does not render the act amenable to correction and
annulment by the extraordinary remedy of certiorari, absent any showing of grave abuse of
discretion amounting to excess of jurisdiction.
CARPIO-MORALES, J.:
Jose Antonio C. Leviste (petitioner) assails via the present petition for review filed
on May 30, 2008 the August 30, 2007 Decision and the April 18, 2008 Resolution of
the Court of Appeals in CA-G.R. SP No. 97761 that affirmed the trial court’s Orders of
January 24, 31, February 7, 8, all in 2007, and denied the motion for reconsideration,
respectively.
Petitioner was, by Information of January 16, 2007, charged with homicide for the
death of Rafael de las Alas on January 12, 2007 before the Regional Trial Court
(RTC) of Makati City. Branch 150 to which the case was raffled, presided by Judge
Elmo Alameda, forthwith issued a commitment order against petitioner who was
placed under police custody while confined at the Makati Medical Center.
After petitioner posted a P40,000 cash bond which the trial court approved, he
was released from detention, and his arraignment was set on January 24, 2007.
The private complainants-heirs of De las Alas filed, with the conformity of the
public prosecutor, an Urgent Omnibus Motion praying, inter alia, for the deferment of
the proceedings to allow the public prosecutor to re-examine the evidence on record
or to conduct a reinvestigation to determine the proper offense.
The RTC thereafter issued the (1) Order of January 24, 2007 deferring petitioner’s
arraignment and allowing the prosecution to conduct a reinvestigation to determine
the proper offense and submit a recommendation within 30 days from its
inception, inter alia; and (2) Order of January 31, 2007 denying reconsideration of the
first order. Petitioner assailed these orders via certiorari and prohibition before the
Court of Appeals.
Meantime, petitioner filed an Urgent Ex-Parte Manifestation and Motion before the
trial court to defer acting on the public prosecutor’s recommendation on the proper
offense until after the appellate court resolves his application for injunctive reliefs, or
alternatively, to grant him time to comment on the prosecutor’s recommendation and
thereafter set a hearing for the judicial determination of probable cause. Petitioner
also separately moved for the inhibition of Judge Alameda with prayer to defer action
on the admission of the Amended Information.
The trial court nonetheless issued the other assailed orders, viz: (1) Order of
February 7, 2007 that admitted the Amended Information for murder and directed the
issuance of a warrant of arrest; and (2) Order of February 8, 2007 which set the
arraignment on February 13, 2007. Petitioner questioned these two
orders via supplemental petition before the appellate court.
The appellate court dismissed petitioner’s petition, hence, his present petition,
arguing that:
PRIVATE RESPONDENT DID NOT HAVE THE RIGHT TO CAUSE THE
REINVESTIGATION OF THE CRIMINAL CASE BELOW WHEN THE CRIMINAL
INFORMATION HAD ALREADY BEEN FILED WITH THE LOWER COURT.
HENCE, THE COURT OF APPEALS COMMITTED A GRAVE ERROR IN
FINDING THAT RESPONDENT JUDGE DID NOT ACT WITH GRAVE ABUSE OF
DISCRETION IN GRANTING SUCH REINVESTIGATION DESPITE HAVING NO
BASIS IN THE RULES OF COURT[;]
RESPONDENT JUDGE ACTED WITH GRAVE ABUSE OF DISCRETION IN
ADMITTING STATE PROSECUTOR VELASCO’S AMENDED INFORMATION,
ISSUING A WARRANT OF ARREST, AND SETTING THE CASE BELOW FOR
ARRAIGNMENT, CONSIDERING THAT THE VALIDITY AND LEGALITY OF HIS
ORDERS DATED 24 AND 31 JANUARY 2007, WHICH LED TO THE
QUESTIONABLE REINVESTIGATION AND ILLEGAL AMENDED
INFORMATION[,] ARE YET TO BE RESOLVED BY THIS HONORABLE COURT
(sic); [AND]
CONSIDERING THAT PROSECUTOR VELASCO’S FINDINGS IN HIS
RESOLUTION DATED 2 FEBRUARY 2007 ARE BLATANTLY BASED ON MERE
SPECULATIONS AND CONJECTURES, WITHOUT ANY SUBSTANTIAL OR
MATERIAL NEW EVIDENCE BEING ADDUCED DURING THE
REINVESTIGATION, RESPONDENT JUDGE SHOULD HAVE AT LEAST
ALLOWED PETITIONER’S MOTION FOR A HEARING FOR JUDICIAL
DETERMINATION OF PROBABLE CAUSE. (emphasis in the original omitted)
Records show that the arraignment scheduled on March 21, 2007 pushed through
during which petitioner refused to plead, drawing the trial court to enter a plea of “not
guilty” for him.
Prior thereto or on February 23, 2007, petitioner filed an Urgent Application for
Admission to Bail Ex Abundanti Cautela which the trial court, after hearings thereon,
granted by Order of May 21, 2007, it finding that the evidence of guilt for the crime
of murder is not strong. It accordingly allowed petitioner to post bail in the amount of
P300,000 for his provisional liberty.
The trial court, absent any writ of preliminary injunction from the appellate court,
went on to try petitioner under the Amended Information. By Decision of January 14,
2009, the trial court found petitioner guilty of homicide, sentencing him to suffer an
indeterminate penalty of six years and one day of prision mayor as minimum to 12
years and one day of reclusion temporal as maximum. From the Decision, petitioner
filed an appeal to the appellate court, docketed as CA-G.R. CR No. 32159, during the
pendency of which he filed an urgent application for admission to bail pending appeal.
The appellate court denied petitioner’s application which this Court, in G.R. No.
189122, affirmed by Decision of March 17, 2010.
The Office of the Solicitor General (OSG) later argued that the present petition
had been rendered moot since the presentation of evidence, wherein petitioner
actively participated, had been concluded.
Waiver on the part of the accused must be distinguished from mootness of
the petition, for in the present case, petitioner did not, by his active participation in
the trial, waive his stated objections.
Section 26, Rule 114 of the Rules of Court provides:
“SEC. 26. Bail not a bar to objections on illegal arrest, lack of or irregular
preliminary investigation.—An application for or admission to bail shall not bar the
accused from challenging the validity of his arrest or the legality of the warrant
issued therefor, or from assailing the regularity or questioning the absence of a
preliminary investigation of the charge against him, provided that he raises them
before entering his plea. The court shall resolve the matter as early as practicable
but not later than the start of the trial of the case.”
By applying for bail, petitioner did not waive his right to challenge the regularity of
the reinvestigation of the charge against him, the validity of the admission of the
Amended Information, and the legality of his arrest under the Amended Information,
as he vigorously raised them prior to his arraignment. During the arraignment on
March 21, 2007, petitioner refused to enter his plea since the issues he raised were
still pending resolution by the appellate court, thus prompting the trial court to enter a
plea of “not guilty” for him.
The principle that the accused is precluded after arraignment from questioning the
illegal arrest or the lack of or irregular preliminary investigation applies “only if
he voluntarily enters his plea and participates during trial, without previously invoking
his objections thereto.”19 There must be clear and convincing proof that petitioner had
an actual intention to relinquish his right to question the existence of probable cause.
When the only proof of intention rests on what a party does, his act should be so
manifestly consistent with, and indicative of, an intent to voluntarily and unequivocally
relinquish the particular right that no other explanation of his conduct is possible.
From the given circumstances, the Court cannot reasonably infer a valid waiver
on the part of petitioner to preclude him from obtaining a definite resolution of the
objections he so timely invoked. Other than its allegation of active participation, the
OSG offered no clear and convincing proof that petitioner’s participation in the trial
was unconditional with the intent to voluntarily and unequivocally abandon his
petition. In fact, on January 26, 2010, petitioner still moved for the early resolution of
the present petition.
 Whatever delay arising from petitioner’s availment of remedies against the trial filed by a prosecutor without need of such investigation provided an inquest has
court’s Orders cannot be imputed to petitioner to operate as a valid waiver on his part. been conducted in accordance with existing rules. In the absence or unavailability
Neither can the non-issuance of a writ of preliminary injunction be deemed as a of an inquest prosecutor, the complaint may be filed by the offended party or a
peace officer directly with the proper court on the basis of the affidavit of the
voluntary relinquishment of petitioner’s principal prayer. The non-issuance of such
offended party or arresting officer or person.
injunctive relief only means that the appellate court did not preliminarily find any Before the complaint or information is filed, the person arrested may ask for a
exception to the long-standing doctrine that injunction will not lie to enjoin a criminal preliminary investigation in accordance with this Rule, but he must sign a waiver
prosecution. Consequently, the trial of the case took its course. of the provisions of Article 125 of the Revised Penal Code, as amended, in the
presence of his counsel. Notwithstanding the waiver, he may apply for bail and the
The petition is now moot, however, in view of the trial court’s rendition of investigation must be terminated within fifteen (15) days from its inception.
judgment. After the filing of the complaint or information in court without a preliminary
investigation, the accused may, within five (5) days from the time he learns of its
filing, ask for a preliminary investigation with the same right to adduce evidence in
A moot and academic case is one that ceases to present a justiciable controversy
his defense as provided in this Rule.” (underscoring supplied)
by virtue of supervening events, so that a declaration thereon would be of no practical
use or value.
A preliminary investigation is required before the filing of a complaint or
information for an offense where the penalty prescribed by law is at least four years,
The judgment convicting petitioner of homicide under the Amended Information
two months and one day without regard to fine. As an exception, the rules provide that
for murder operates as a supervening event that mooted the present petition.
there is no need for a preliminary investigation in cases of a lawful arrest without a
Assuming that there is ground to annul the finding of probable cause for murder, there
warrant involving such type of offense, so long as an inquest, where available, has
is no practical use or value in abrogating the concluded proceedings and retrying the
been conducted.
case under the original Information for homicide just to arrive, more likely or even
definitely, at the same conviction of homicide. Mootness would have also set in had
Inquest is defined as an informal and summary investigation conducted by a
petitioner been convicted of murder, for proof beyond reasonable doubt, which is
public prosecutor in criminal cases involving persons arrested and detained without
much higher than probable cause, would have been established in that instance.
the benefit of a warrant of arrest issued by the court for the purpose of determining
whether said persons should remain under custody and correspondingly be charged
Instead, however, of denying the petition outright on the ground of mootness, the
in court.31
Court proceeds to resolve the legal issues in order to formulate controlling principles
to guide the bench, bar and public. In the present case, there is compelling reason to
It is imperative to first take a closer look at the predicament of both the arrested
clarify the remedies available before and after the filing of an information in cases
person and the private complainant during the brief period of inquest, to grasp the
subject of inquest.
respective remedies available to them before and after the filing of a complaint or
information in court.
After going over into the substance of the petition and the assailed issuances, the
Court finds no reversible error on the part of the appellate court in finding no grave
BEFORE THE FILING OF COMPLAINT OR INFORMATION IN COURT, the
abuse of discretion in the issuance of the four trial court Orders.
private complainant may proceed in coordinating with the arresting officer and the
inquest officer during the latter’s conduct of inquest. Meanwhile, the arrested person
In his first assignment of error, petitioner posits that the prosecution has no right
has the option to avail of a 15-day preliminary investigation, provided he duly signs a
under the Rules to seek from the trial court an investigation or reevaluation of the
waiver of any objection against delay in his delivery to the proper judicial authorities
case except through a petition for review before the Department of Justice (DOJ). In
under Article 125 of the Revised Penal Code. For obvious reasons, this remedy is not
cases when an accused is arrested without a warrant, petitioner contends that the
available to the private complainant since he cannot waive what he does not have.
remedy of preliminary investigation belongs only to the accused.
The benefit of the provisions of Article 125, which requires the filing of a complaint or
information with the proper judicial authorities within the applicable period, belongs to
The contention lacks merit.
the arrested person.

Section 6, Rule 112 of the Rules of Court reads:

The accelerated process of inquest, owing to its summary nature and the
“When a person is lawfully arrested without a warrant involving an offense
which requires a preliminary investigation, the complaint or information may be
attendant risk of running against Article 125, ends with either the prompt filing of an
information in court or the immediate release of the arrested person. 33 Notably, the
rules on inquest do not provide for a motion for reconsideration.
Contrary to petitioner’s position that private complainant should have appealed to
the DOJ Secretary, such remedy is not immediately available in cases subject of
inquest.
Noteworthy is the proviso that the appeal to the DOJ Secretary is by “petition by
a proper party under such rules as the Department of Justice may prescribe.” The rule
referred to is the 2000 National Prosecution Service Rule on Appeal, Section 1 of
which provides that the Rule shall “apply to appeals from resolutions x x x in cases
subject of preliminary investigation/reinvestigation.” In cases subject of inquest,
therefore, the private party should first avail of a preliminary investigation or
reinvestigation, if any, before elevating the matter to the DOJ Secretary.
In case the inquest proceedings yield no probable cause, the private complainant
may pursue the case through the regular course of a preliminary investigation.
ONCE A COMPLAINT OR INFORMATION IS FILED IN COURT, the rules yet
provide the accused with another opportunity to ask for a preliminary investigation
within five days from the time he learns of its filing. The Rules of Court and the New
Rules on Inquest are silent, however, on whether the private complainant could
invoke, as respondent heirs of the victim did in the present case, a similar right to ask
for a reinvestigation.
The Court holds that the private complainant can move for reinvestigation, subject
to and in light of the ensuing disquisition.
All criminal actions commenced by a complaint or information shall be prosecuted
under the direction and control of the public prosecutor. The private complainant in a
criminal case is merely a witness and not a party to the case and cannot, by himself,
ask for the reinvestigation of the case after the information had been filed in court, the
proper party for that being the public prosecutor who has the control of the
prosecution of the case. Thus, in cases where the private complainant is allowed to
intervene by counsel in the criminal action, and is granted the authority to prosecute,
the private complainant, by counsel and with the conformity of the public prosecutor,
can file a motion for reinvestigation.
In fact, the DOJ instructs that before the arraignment of the accused, trial
prosecutors must “examine the Information vis-à-vis the resolution of the investigating
prosecutor in order to make the necessary corrections or revisions and to ensure that
the information is sufficient in form and substance.”
“x x x Since no evidence has been presented at that stage, the error would
appear or be discoverable from a review of the records of the preliminary
investigation. Of course, that fact may be perceived by the trial judge himself but,
again, realistically it will be the prosecutor who can initially determine the
same. That is why such error need not be manifest or evident, nor is it required
that such nuances as offenses includible in the offense charged be taken into
account. It necessarily follows, therefore, that the prosecutor can and should
institute remedial measures[.]” (emphasis and underscoring supplied)
The prosecution of crimes appertains to the executive department of the
government whose principal power and responsibility is to see that our laws are
faithfully executed. A necessary component of this power to execute our laws is the
right to prosecute their violators. The right to prosecute vests the prosecutor with a
wide range of discretion—the discretion of what and whom to charge, the exercise of
which depends on a smorgasbord of factors which are best appreciated by
prosecutors.
The prosecution’s discretion is not boundless or infinite, however. The standing
principle is that once an information is filed in court, any remedial measure such as a
reinvestigation must be addressed to the sound discretion of the court. Interestingly,
petitioner supports this view. Indeed, the Court ruled in one case that:
“The rule is now well settled that once a complaint or information is filed in
court, any disposition of the case, whether as to its dismissal or the conviction or
the acquittal of the accused, rests in the sound discretion of the court. Although
the prosecutor retains the direction and control of the prosecution of criminal cases
even when the case is already in court, he cannot impose his opinion upon the
tribunal. For while it is true that the prosecutor has the quasi-judicial discretion to
determine whether or not a criminal case should be filed in court, once the case
had already been brought therein any disposition the prosecutor may deem proper
thereafter should be addressed to the court for its consideration and approval. The
only qualification is that the action of the court must not impair the substantial rights
of the accused or the right of the People to due process of law.
xxxx
In such an instance, before a re-investigation of the case may be conducted
by the public prosecutor, the permission or consent of the court must be secured.
If after such re-investigation the prosecution finds a cogent basis to withdraw the
information or otherwise cause the dismissal of the case, such proposed course of
action may be taken but shall likewise be addressed to the sound discretion of the
court.” (underscoring supplied)
While Abugotal v. Judge Tiro held that to ferret out the truth, a trial is to be
preferred to a reinvestigation, the Court therein recognized that a trial court
may, where the interest of justice so requires, grant a motion for reinvestigation of a
criminal case pending before it.
Once the trial court grants the prosecution’s motion for reinvestigation, the former
is deemed to have deferred to the authority of the prosecutorial arm of the
Government. Having brought the case back to the drawing board, the prosecution is
thus equipped with discretion—wide and far reaching—regarding the disposition
thereof, subject to the trial court’s approval of the resulting proposed course of action.
 Since a reinvestigation may entail a modification of the criminal information as
what happened in the present case, the Court’s holding is bolstered by the rule on
amendment of an information under Section 14, Rule 110 of the Rules of Court:
“A complaint or information may be amended, in form or in substance,
without leave of court, at any time before the accused enters his plea. After
the plea and during the trial, a formal amendment may only be made with leave of
court and when it can be done without causing prejudice to the rights of the
accused.
However, any amendment before plea, which downgrades the nature of the
offense charged in or excludes any accused from the complaint or information, can
be made only upon motion by the prosecutor, with notice to the offended party and
with leave of court. The court shall state its reasons in resolving the motion and
copies of its order shall be furnished all parties, especially the offended party.
If it appears at any time before judgment that a mistake has been made in
charging the proper offense, the court shall dismiss the original complaint or
information upon the filing of a new one charging the proper offense in accordance
with section 11, Rule 119, provided the accused would not be placed in double
jeopardy. The court may require the witnesses to give bail for their appearance at
the trial.” (emphasis supplied)
In fine, before the accused enters a plea, a formal or substantial amendment of
the complaint or information may be made without leave of court.49 After the entry of a
plea, only a formal amendment may be made but with leave of court and only if it
does not prejudice the rights of the accused. After arraignment, a substantial
amendment is proscribed except if the same is beneficial to the accused.
It must be clarified though that not all defects in an information are curable by
amendment prior to entry of plea. An information which is void ab initio cannot be
amended to obviate a ground for quashal. An amendment which operates to vest
jurisdiction upon the trial court is likewise impermissible.
Considering the general rule that an information may be amended even in
substance and even without leave of court at any time before entry of plea, does it
mean that the conduct of a reinvestigation at that stage is a mere superfluity?
It is not.
Any remedial measure springing from the reinvestigation—be it a complete
disposition or an intermediate modification of the charge—is eventually addressed to
the sound discretion of the trial court, which must make an independent evaluation or
assessment of the merits of the case. Since the trial court would ultimately make the
determination on the proposed course of action, it is for the prosecution to consider
whether a reinvestigation is necessary to adduce and review the evidence for
purposes of buttressing the appropriate motion to be filed in court.
More importantly, reinvestigation is required in cases involving a substantial
amendment of the information. Due process of law demands that no substantial
amendment of an information may be admitted without conducting another or a new
preliminary investigation. In Matalam v. The 2nd Division of the Sandiganbayan,54 the
Court ruled that a substantial amendment in an information entitles an accused to
another preliminary investigation, unless the amended information contains a charge
related to or is included in the original Information.
The question to be resolved is whether the amendment of the Information from
homicide to murder is considered a substantial amendment, which would make it not
just a right but a duty of the prosecution to ask for a preliminary investigation.
The Court answers in the affirmative.
“A substantial amendment consists of the recital of facts constituting the
offense charged and determinative of the jurisdiction of the court. All other
matters are merely of form. The following have been held to be mere formal
amendments: (1) new allegations which relate only to the range of the
penalty that the court might impose in the event of conviction; (2) an amendment
which does not charge another offense different or distinct from that charged in the
original one; (3) additional allegations which do not alter the prosecution’s theory
of the case so as to cause surprise to the accused and affect the form of
defense he has or will assume; (4) an amendment which does not adversely affect
any substantial right of the accused; and (5) an amendment that merely adds
specifications to eliminate vagueness in the information and not to introduce new
and material facts, and merely states with additional precision something which is
already contained in the original information and which adds nothing essential for
conviction for the crime charged.
The test as to whether a defendant is prejudiced by the amendment is whether
a defense under the information as it originally stood would be available after the
amendment is made, and whether any evidence defendant might have would be
equally applicable to the information in the one form as in the other. An amendment
to an information which does not change the nature of the crime alleged therein
does not affect the essence of the offense or cause surprise or deprive the accused
of an opportunity to meet the new averment had each been held to be one of form
and not of substance.” (emphasis and underscoring supplied)
Matalam adds that the mere fact that the two charges are related does not
necessarily or automatically deprive the accused of his right to another preliminary
investigation. Notatu dignum is the fact that both the original Information and the
amended Information in Matalam were similarly charging the accused with violation of
Section 3(e) of the Anti-Graft and Corrupt Practices Act.
In one case, it was squarely held that the amendment of the Information from
homicide to murder is “one of substance with very serious consequences.” The
amendment involved in the present case consists of additional averments of the
circumstances of treachery, evident premeditation, and cruelty, which qualify the
offense charged from homicide to murder. It being a new and material element of the
offense, petitioner should be given the chance to adduce evidence on the matter. Not
being merely clarificatory, the amendment essentially varies the prosecution’s original
theory of the case and certainly affects not just the form but the weight of defense to
be mustered by petitioner.
The Court distinguishes the factual milieus in Buhat v. Court of
Appeals and Pacoy v. Cajigal, wherein the amendment of the caption of the
Information from homicide to murder was not considered substantial because there
was no real change in the recital of facts constituting the offense charged as alleged
in the body of the Information, as the allegations of qualifying circumstances were
already clearly embedded in the original Information. Buhat pointed out that the
original Information for homicide already alleged the use of superior strength,
while Pacoy states that the averments in the amended Information for murder are
exactly the same as those already alleged in the original Information for homicide.
None of these peculiar circumstances obtains in the present case.
Considering that another or a new preliminary investigation is required, the fact
that what was conducted in the present case was a reinvestigation does not invalidate
the substantial amendment of the Information. There is no substantial distinction
between a preliminary investigation and a reinvestigation since both are conducted in
the same manner and for the same objective of determining whether there exists
sufficient ground to engender a well-founded belief that a crime has been committed
and the respondent is probably guilty thereof and should be held for trial. 60 What is
essential is that petitioner was placed on guard to defend himself from the charge of
murder61 after the claimed circumstances were made known to him as early as the
first motion.
Petitioner did not, however, make much of the opportunity to present
countervailing evidence on the proposed amended charge. Despite notice of hearing,
petitioner opted to merely observe the proceedings and declined to actively
participate, even with extreme caution, in the reinvestigation. Mercado v. Court of
Appeals states that the rules do not even require, as a condition sine qua non to the
validity of a preliminary investigation, the presence of the respondent as long as
efforts to reach him were made and an opportunity to controvert the complainant’s
evidence was accorded him.
In his second assignment of error, petitioner basically assails the hurried issuance
of the last two assailed RTC Orders despite the pendency before the appellate court
of the petition for certiorari challenging the first two trial court Orders allowing a
reinvestigation.
The Rules categorically state that the petition shall not interrupt the course of the
principal case unless a temporary retraining order or a writ of preliminary injunction
has been issued. The appellate court, by Resolution of February 15, 2007, denied
petitioner’s application for a temporary restraining order and writ of preliminary
injunction. Supplementary efforts to seek injunctive reliefs proved futile. The appellate
court thus did not err in finding no grave abuse of discretion on the part of the trial
court when it proceeded with the case and eventually arraigned the accused on
March 21, 2007, there being no injunction order from the appellate court. Moreover,
petitioner opted to forego appealing to the DOJ Secretary, a post-inquest remedy that
was available after the reinvestigation and which could have suspended the
arraignment.
Regarding petitioner’s protestations of haste, suffice to state that the pace in
resolving incidents of the case is not per se an indication of bias. In Santos-Concio v.
Department of Justice, the Court held:
“Speed in the conduct of proceedings by a judicial or quasi-judicial officer
cannot per se be instantly attributed to an injudicious performance of functions. For
one’s prompt dispatch may be another’s undue haste. The orderly administration
of justice remains as the paramount and constant consideration, with particular
regard of the circumstances peculiar to each case.
The presumption of regularity includes the public officer’s official actuations in
all phases of work. Consistent with such presumption, it was incumbent upon
petitioners to present contradictory evidence other than a mere tallying of days or
numerical calculation. This, petitioners failed to discharge. The swift completion of
the Investigating Panel’s initial task cannot be relegated as shoddy or shady
without discounting the presumably regular performance of not just one but five
state prosecutors.”
There is no ground for petitioner’s protestations against the DOJ Secretary’s
sudden designation of Senior State Prosecutor Emmanuel Velasco as Acting City
Prosecutor of Makati City for the present case69 and the latter’s conformity to the
motion for reinvestigation.
In granting the reinvestigation, Judge Alameda cannot choose the public
prosecutor who will conduct the reinvestigation or preliminary investigation. There is a
hierarchy of officials in the prosecutory arm of the executive branch headed by the
Secretary of Justice who is vested with the prerogative to appoint a special prosecutor
or designate an acting prosecutor to handle a particular case, which broad power of
control has been recognized by jurisprudence.
As for the trial court’s ignoring the DOJ Secretary’s uncontested statements to the
media which aired his opinion that if the assailant merely intended to maim and not to
kill the victim, one bullet would have sufficed—the DOJ Secretary reportedly uttered
that “the filing of the case of homicide against ano against Leviste lintek naman eh I
told you to watch over that case… there should be a report about the ballistics, about
the paraffin, etc., then that’s not a complete investigation, that’s why you should use
that as a ground”—no abuse of discretion, much less a grave one, can be imputed to
it.
The statements of the DOJ Secretary do not evince a “determination to file the
Information even in the absence of probable cause.” On the contrary, the remarks
merely underscored the importance of securing basic investigative reports to support
a finding of probable cause. The original Resolution even recognized that probable
cause for the crime of murder cannot be determined based on the evidence obtained
“[u]nless and until a more thorough investigation is conducted and eyewitness/es
[is/]are presented in evidence[.]”
The trial court concluded that “the wound sustained by the victim at the back of
his head, the absence of paraffin test and ballistic examination, and the handling of
physical evidence,” as rationalized by the prosecution in its motion, are sufficient
circumstances that require further inquiry.
That the evidence of guilt was not strong as subsequently assessed in the bail
hearings does not affect the prior determination of probable cause because, as the
appellate court correctly stated, the standard of strong evidence of guilt which is
sufficient to deny bail to an accused is markedly higher than the standard of judicial
probable cause which is sufficient to initiate a criminal case.
In his third assignment of error, petitioner faults the trial court for not conducting,
at the very least, a hearing for judicial determination of probable cause, considering
the lack of substantial or material new evidence adduced during the reinvestigation.
Petitioner’s argument is specious.
There are two kinds of determination of probable cause: executive and
judicial. The executive determination of probable cause is one made during
preliminary investigation. It is a function that properly pertains to the public prosecutor
who is given a broad discretion to determine whether probable cause exists and to
charge those whom he believes to have committed the crime as defined by law and
thus should be held for trial. Otherwise stated, such official has the quasi-judicial
authority to determine whether or not a criminal case must be filed in court. Whether
that function has been correctly discharged by the public prosecutor, i.e., whether he
has made a correct ascertainment of the existence of probable cause in a case, is a
matter that the trial court itself does not and may not be compelled to pass upon.
The judicial determination of probable cause is one made by the judge to
ascertain whether a warrant of arrest should be issued against the accused. The
judge must satisfy himself that based on the evidence submitted, there is necessity
for placing the accused under custody in order not to frustrate the ends of justice. If
the judge finds no probable cause, the judge cannot be forced to issue the arrest
warrant. Paragraph (a), Section 5, Rule 112 of the Rules of Court outlines the
procedure to be followed by the RTC.
To move the court to conduct a judicial determination of probable cause is a mere
superfluity, for with or without such motion, the judge is duty-bound to personally
evaluate the resolution of the public prosecutor and the supporting evidence. In fact,
the task of the presiding judge when the Information is filed with the court
is first and foremost to determine the existence or non-existence of probable cause
for the arrest of the accused.
“What the Constitution underscores is the exclusive and personal
responsibility of the issuing judge to satisfy himself of the existence of probable
cause. But the judge is not required to personally examine the complainant
and his witnesses. Following established doctrine and procedure, he shall
(1) personally evaluate the report and the supporting documents submitted by the
prosecutor regarding the existence of probable cause, and on the basis thereof,
he may already make a personal determination of the existence of probable cause;
and (2) if he is not satisfied that probable cause exists, he may disregard the
prosecutor’s report and require the submission of supporting affidavits of witnesses
to aid him in arriving at a conclusion as to the existence of probable cause.”
(emphasis and underscoring supplied)
The rules do not require cases to be set for hearing to determine probable cause
for the issuance of a warrant of arrest of the accused before any warrant may be
issued. Petitioner thus cannot, as a matter of right, insist on a hearing for judicial
determination of probable cause. Certainly, petitioner “cannot determine beforehand
how cursory or exhaustive the [judge’s] examination of the records should be [since
t]he extent of the judge’s examination depends on the exercise of his sound discretion
as the circumstances of the case require.” In one case, the Court emphatically stated:
“The periods provided in the Revised Rules of Criminal Procedure
are mandatory, and as such, the judge must determine the presence or absence
of probable cause within such periods. The Sandiganbayan’s determination of
probable cause is made ex parte and is summary in nature, not adversarial. The
Judge should not be stymied and distracted from his determination of
probable cause by needless motions for determination of probable cause
filed by the accused.” (emphasis and underscoring supplied)
Petitioner proceeds to discuss at length evidentiary matters, arguing that no
circumstances exist that would qualify the crime from homicide to murder.
The allegation of lack of substantial or material new evidence deserves no
credence, because new pieces of evidence are not prerequisites for a valid conduct
of reinvestigation. It is not material that no new matter or evidence was presented
during the reinvestigation of the case. It should be stressed that reinvestigation, as
the word itself implies, is merely a repeat investigation of the case. New matters or
evidence are not prerequisites for a reinvestigation, which is simply a chance for the
prosecutor to review and re-evaluate its findings and the evidence already submitted.
Moreover, under Rule 45 of the Rules of Court, only questions of law may be
raised in, and be subject of, a petition for review on certiorari since this Court is not a
trier of facts. The Court cannot thus review the evidence adduced by the parties on
the issue of the absence or presence of probable cause, as there exists no
exceptional circumstances to warrant a factual review.
 In a petition for certiorari, like that filed by petitioner before the appellate court, the
jurisdiction of the court is narrow in scope. It is limited to resolving only errors of
jurisdiction. It is not to stray at will and resolve questions and issues beyond its
competence, such as an error of judgment. The court’s duty in the pertinent case is
confined to determining whether the executive and judicial determination of probable
cause was done without or in excess of jurisdiction or with grave abuse of discretion.
Although it is possible that error may be committed in the discharge of lawful
functions, this does not render the act amenable to correction and annulment by the
extraordinary remedy of certiorari, absent any showing of grave abuse of discretion
amounting to excess of jurisdiction.

WHEREFORE, the petition is DENIED. The assailed Decision and Resolution of

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

Notes.—Where a person is not lawfully arrested, he is entitled to a regular preliminary

investigation and not a mere inquest investigation. (Larranaga vs. Court of Appeals, 281 SCRA
254 [1997])

A police line-up is not considered part of any custodial inquest because it is conducted
before that stage is reached. (De la Torre vs. Court of Appeals, 294 SCRA 196 [1998])

——o0o——
 G.R. No. 197522. September 11, 2013
ELISEO V. AGUILAR, petitioner, vs. DEPARTMENT OF JUSTICE, PO1 LEO T.
DANGUPON, 1st LT. PHILIP FORTUNO, CPL. EDILBERTO ABORDO, SPO3
GREGARDRO A. VILLAR, SPO1 RAMON M. LARA, SPO1 ALEX L. ACAYLAR,
and PO1 JOVANNIE C. BALICOL, respondents.
Remedial Law; Criminal Procedure; Preliminary Investigation; Judicial Review; A public
prosecutor’s determination of probable cause — that is, one made for the purpose of filing an
information in court — is essentially an executive function and, therefore, generally lies beyond
the pale of judicial scrutiny.—A public prosecutor’s determination of probable cause — that is,
one made for the purpose of filing an information in court — is essentially an executive function
and, therefore, generally lies beyond the pale of judicial scrutiny. The exception to this rule is
when such determination is tainted with grave abuse of discretion and perforce becomes
correctible through the extraordinary writ of certiorari. It is fundamental that the concept of grave
abuse of discretion transcends mere judgmental error as it properly pertains to a jurisdictional
aberration. While defying precise definition, grave abuse of discretion generally refers to a
“capricious or whimsical exercise of judgment as is equivalent to lack of jurisdiction.” Corollary,
the abuse of discretion must be patent and gross so as to amount to an evasion of a positive
duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law.
To note, the underlying principle behind the courts’ power to review a public prosecutor’s
determination of probable cause is to ensure that the latter acts within the permissible bounds of
his authority or does not gravely abuse the same. This manner of judicial review is a
constitutionally-enshrined form of check and balance which underpins the very core of our
system of government.
Criminal Law; Murder; Elements of.—Records bear out facts and circumstances which
show that the elements of murder — namely: (a) that a person was killed; (b) that the accused
killed him; (c) that the killing was attended by any of the qualifying circumstances mentioned in
Article 248 of the RPC; and (d) the killing is not parricide or infanticide — are, in all reasonable
likelihood, present in Dangupon’s case. As to the first and second elements, Dangupon himself
admitted that he shot and killed Tetet. Anent the third element, there lies sufficient basis to
suppose that the qualifying circumstance of treachery attended Tetet’s killing in view of the
undisputed fact that he was restrained by respondents and thereby, rendered defenseless.
Finally, with respect to the fourth element, Tetet’s killing can neither be considered as parricide
nor infanticide as the evidence is bereft of any indication that Tetet is related to Dangupon.
Same; Justifying Circumstances; Burden of Proof; Jurisprudence holds that when the
accused admits killing the victim, but invokes a justifying circumstance, the constitutional
presumption of innocence is effectively waived and the burden of proving the existence of such
circumstance shifts to the accused.—Neither can the dismissal of the murder charge against
Dangupon be sustained in view of his presumption of innocence. Jurisprudence holds that when
the accused admits killing the victim, but invokes a justifying circumstance, the constitutional
presumption of innocence is effectively waived and the burden of proving the existence of such
circumstance shifts to the accused.
Remedial Law; Criminal Procedure; Probable Cause; The existence of probable cause
against Fortuno and Abordo is justified by the circumstances on record which, if threaded
together, would lead a reasonably discreet and prudent man to believe that they were also
probably guilty of the crime charged.—In the present case, the existence of probable cause
against Fortuno and Abordo is justified by the circumstances on record which, if threaded
together, would lead a reasonably discreet and prudent man to believe that they were also
probably guilty of the crime charged. These circumstances are as follows: (a) Fortuno and
Abordo were with Dangupon during the time the latter killed Tetet in an undisclosed place along
the Viga River; (b) Tetet was apprehended, taken into custody and boarded on a military jeep by
the group of armed elements of which Fortuno and Abordo belonged to; (c) as earlier mentioned,
Tetet was handcuffed when he was boarded on the military jeep and, in effect, restrained of his
movement when he supposedly stole the grenade from Abordo; and (d) also, as previously
mentioned, Tetet suffered from lacerations and multiple gunshot wounds, and that the shots
causing the same were fired at a close distance. Evidently, the confluence of the above-stated
circumstances and legal realities point out to the presence of probable cause for the crime of
murder against Fortuno and Abordo. Hence, the dismissal of the charges against them was —
similar to Dangupon — improper. As such, the CA’s ruling must also be reversed with respect to
Fortuno and Abordo.
Criminal Law; Conspiracy; It is well-settled that conspiracy exists when one concurs with
the criminal design of another, indicated by the performance of an overt act leading to the crime
committed.—It is well-settled that conspiracy exists when one concurs with the criminal design of
another, indicated by the performance of an overt act leading to the crime committed. Therefore,
finding no direct participation or conspiracy on the part of Villar, Lara, Acaylar, and Balicol, the
Court holds that the DOJ did not gravely abuse its discretion in affirming the Provincial
Prosecutor’s dismissal of the charges against them. In this respect, the CA’s Decision must
stand.
Same; Extralegal Killings; Despite the poignancy natural to every case advanced as an
extralegal killing, the Supreme Court, as in all courts of law, is mandated to operate on
institutional impartiality — that is, its every ruling, notwithstanding the sensitivity of the issue
involved, must be borne only out of the facts of the case and scrutinized under the lens of the
law.—The Court can only bewail the loss of a family member through the unfortunate course of
an extralegal killing. The historical prevalence of this deplorable practice has even led to the
inception and eventual adoption of the Rules on Amparo to better protect the sacrosanct right of
every person to his life and liberty and not to be deprived of such without due process of law.
Despite the poignancy natural to every case advanced as an extralegal killing, the Court, as in
all courts of law, is mandated to operate on institutional impartiality — that is, its every ruling,
notwithstanding the sensitivity of the issue involved, must be borne only out of the facts of the
case and scrutinized under the lens of the law. It is pursuant to this overarching principle that the
Court has dealt with the killing of Tetet and partly grants the present petition.
PER CURIAM:
Assailed in this petition for review on certiorari is the Decision dated June 30,
2011 of the Court of Appeals (CA) in CA-G.R. SP No. 110110 which affirmed the
Resolution dated November 27, 2008 of the Department of Justice (DOJ) in I.S. No.
2002-414, upholding the provincial prosecutor’s dismissal of the criminal complaint for
murder filed by petitioner Eliseo V. Aguilar against respondents.
The Facts
 Petitioner is the father of one Francisco M. Aguilar, alias Tetet (Tetet). On April
10, 2002, he filed a criminal complaint for murder against the members of a joint team
of police and military personnel who purportedly arrested Tetet and later inflicted
injuries upon him, resulting to his death. The persons charged to be responsible for
Tetet’s killing were members of the Sablayan Occidental Mindoro Police Force,
identified as respondents SPO3 Gregardro A. Villar (Villar), SPO1 Ramon M. Lara
(Lara), SPO1 Alex L. Acaylar (Acaylar), PO1 Leo T. Dangupon (Dangupon), and PO1
Jovannie C. Balicol (Balicol), and members of the Philippine Army, namely,
respondents 1st Lt. Philip Fortuno (Fortuno) and Cpl. Edilberto Abordo (Abordo).
In the petitioner’s complaint, he averred that on February 1, 2002, between 9:00
and 10:00 in the morning, at Sitio Talipapa, Brgy. Pag-asa, Sablayan, Occidental
Mindoro (Sitio Talipapa), Tetet was arrested by respondents for alleged acts of
extortion and on the suspicion that he was a member of the Communist Party of the
Philippines/National People’s Army Revolutionary Movement. Despite his peaceful
surrender, he was maltreated by respondents. In particular, Tetet was hit on different
parts of the body with the butts of their rifles, and his hands were tied behind his back
with a black electric wire. He was then boarded on a military jeep and brought to the
Viga River where he was gunned down by respondents. Petitioner’s complaint was
corroborated by witnesses Adelaida Samillano and Rolando Corcotchea who stated,
among others, that they saw Tetet raise his hands as a sign of surrender but was still
mauled by armed persons. A certain Dr. Neil Bryan V. Gamilla (Dr. Gamilla) of the
San Sebastian District Hospital issued a medical certificate dated February 1, 2002,
indicating that Tetet was found to have sustained two lacerated wounds at the frontal
area, a linear abrasion in the anterior chest and five gunshot wounds in different parts
of his body.
In defense, respondents posited that on February 1, 2002, they were engaged in
an operation — headed by Chief of Police Marcos Barte (Barte) and Fortuno —
organized to entrap a suspected extortionist (later identified as Tetet) who was
allegedly demanding money from a businesswoman named Estelita Macaraig
(Macaraig). For this purpose, they devised a plan to apprehend Tetet at Sitio Talipapa
which was the place designated in his extortion letters to Macaraig. At about 11:00 in
the morning of that same day, Tetet was collared by Sgt. Ferdinand S. Hermoso
(Hermoso) while in the act of receiving money from Macaraig’s driver, Arnold
Magalong. Afterwards, shouts were heard from onlookers that two persons, who were
supposed to be Tetet’s companions, ran towards the mountains. Some members of
the team chased them but they were left uncaught. Meanwhile, Tetet was handcuffed
and boarded on a military jeep. Accompanying the latter were Dangupon, Fortuno,
Abordo, Barte, and some other members of the Philippine Army (first group). On the
other hand, Villar, Lara, Acaylar, and Balicol were left behind at Sitio Talipapa with the
instruction to pursue Tetet’s two companions. As the first group was passing along
the Viga River, Tetet blurted out to the operatives that he would point out to the police
where his companions were hiding. Barte stopped the jeep and ordered his men to
return to Sitio Talipapa but, while the driver was steering the jeep back, Tetet pulled a
hand grenade clutched at the bandolier of Abordo, jumped out of the jeep and, from
the ground, turned on his captors by moving to pull the safety pin off of the grenade.
Sensing that they were in danger, Dangupon fired upon Tetet, hitting him four times in
the body. The first group brought Tetet to the San Sebastian District Hospital for
treatment but he was pronounced dead on arrival.
Among others, the Commission on Human Rights investigated Tetet’s death and
thereafter issued a Final Investigation Report dated October 3, 2002 and Resolution
dated October 8, 2002, recommending that the case, i.e., CHR CASE NR. IV-02-
0289, “be closed for lack of sufficient evidence.” It found that Tetet’s shooter,
Dangupon, only shot him in self-defense and added that “Dangupon enjoys the
presumption of innocence and regularity in the performance of his official duties,
which were not sufficiently rebutted in the instant case.”
Likewise, the Office of the Provincial Director of the Occidental Mindoro Police
Provincial Command conducted its independent inquiry on the matter and, in a Report
dated September 21, 2002, similarly recommended the dismissal of the charges
against respondents. Based on its investigation, it concluded that respondents
conducted a legitimate entrapment operation and that the killing of Tetet was made in
self-defense and/or defense of a stranger.
The Provincial Prosecutor’s Ruling
In a Resolution dated March 10, 2003, 1st Asst. Provincial Prosecutor and Officer-
in-Charge Levitico B. Salcedo of the Office of the Provincial Prosecutor of Occidental
Mindoro (Provincial Prosecutor) dismissed petitioner’s complaint against all
respondents for lack of probable cause. To note, Barte was dropped from the charge,
having died in an ambush pending the investigation of the case.
The Provincial Prosecutor held that the evidence on record shows that the
shooting of Tetet by Dangupon “was done either in an act of self-defense, defense of
a stranger, and in the performance of a lawful duty or exercise of a right of office.” He
further observed that petitioner failed to submit any evidence to rebut Dangupon’s
claim regarding the circumstances surrounding Tetet’s killing.
In the same vein, the Provincial Prosecutor ruled that Villar, Acaylar, Lara, and
Balicol could not be faulted for Tetet’s death as they were left behind in Sitio Talipapa
unaware of what transpired at the Viga River. As to the alleged maltreatment of Tetet
after his arrest, the Provincial Prosecutor found that these respondents were not
specifically pointed out as the same persons who mauled the former. He added that
Hermoso was, in fact, the one who grabbed/collared Tetet during his apprehension.
The Provincial Prosecutor similarly absolved Fortuno and Abordo since they were
found to have only been in passive stance.
Aggrieved, petitioner elevated the matter via a petition for review to the DOJ.
 The DOJ Ruling
In a Resolution dated November 27, 2008, the DOJ dismissed petitioner’s appeal
and thereby, affirmed the Provincial Prosecutor’s ruling. It ruled that petitioner failed
to show that respondents conspired to kill/murder Tetet. In particular, it was not
established that Villar, Lara, Acaylar, and Balicol were with Tetet at the time he was
gunned down and, as such, they could not have had any knowledge, much more any
responsibility, for what transpired at the Viga River. Neither were Barte, Fortuno, and
Abordo found to have conspired with Dangupon to kill Tetet since their presence at
the time Tetet was shot does not support a conclusion that they had a common
design or purpose in killing him. With respect to Dangupon, the DOJ held that no
criminal responsibility may be attached to him since his act was made in the
fulfillment of a duty or in the lawful exercise of an office under Article 11(5) of the
Revised Penal Code (RPC). Lastly, the DOJ stated that petitioner’s suppositions and
conjectures that respondents salvaged his son are insufficient to overturn the
presumption of innocence in respondents’ favor.
Unperturbed, petitioner filed a petition for certiorari with the CA.
The CA Ruling
In a Decision dated June 30, 2011, the CA dismissed
petitioner’s certiorari petition, finding no grave abuse of discretion on the part of the
DOJ in sustaining the Provincial Prosecutor’s ruling. It found no evidence to show that
Tetet was deliberately executed by respondents.
Also, it echoed the DOJ’s observations on respondents’ presumption of
innocence.
Hence, this petition.
The Issue Before the Court
Petitioner builds up a case of extralegal killing and seeks that the Court resolve
the issue as to whether or not the CA erred in finding that the DOJ did not gravely
abuse its discretion in upholding the dismissal of petitioner’s complaint against
respondents.
The Court’s Ruling
The petition is partly granted.
At the outset, it is observed that the Provincial Prosecutor’s ruling, as affirmed on
appeal by the DOJ and, in turn, upheld on certiorari by the CA, may be dissected into
three separate disquisitions: first, the lack of probable cause on the part of
Dangupon, who despite having admitted killing the victim, was exculpated of the
murder charge against him on account of his interposition of the justifying
circumstances of self-defense/defense of a stranger and fulfillment of a duty or lawful
exercise of a right of an office under Article 11(5) of the RPC; second, the lack of
probable cause on the part of Fortuno and Abordo who, despite their presence during
the killing of Tetet, were found to have no direct participation or have not acted in
conspiracy with Dangupon in Tetet’s killing; and third, the lack of probable cause on
the part of Villar, Lara, Acaylar, and Balicol in view of their absence during the said
incident. For better elucidation, the Court deems it apt to first lay down the general
principles which go into its review process of a public prosecutor’s probable cause
finding, and thereafter apply these principles to each of the above-mentioned
incidents in seriatim.
A. General principles; judicial review of a prosecutor’s probable cause
determination.
A public prosecutor’s determination of probable cause — that is, one made for the
purpose of filing an information in court — is essentially an executive function and,
therefore, generally lies beyond the pale of judicial scrutiny. The exception to this rule
is when such determination is tainted with grave abuse of discretion and perforce
becomes correctible through the extraordinary writ of certiorari. It is fundamental that
the concept of grave abuse of discretion transcends mere judgmental error as it
properly pertains to a jurisdictional aberration. While defying precise definition, grave
abuse of discretion generally refers to a “capricious or whimsical exercise of judgment
as is equivalent to lack of jurisdiction.” Corollary, the abuse of discretion must be
patent and gross so as to amount to an evasion of a positive duty or a virtual refusal
to perform a duty enjoined by law, or to act at all in contemplation of law. To note, the
underlying principle behind the courts’ power to review a public prosecutor’s
determination of probable cause is to ensure that the latter acts within the permissible
bounds of his authority or does not gravely abuse the same. This manner of judicial
review is a constitutionally-enshrined form of check and balance which underpins the
very core of our system of government. As aptly edified in the recent case of Alberto
v. CA:
It is well-settled that courts of law are precluded from disturbing the findings
of public prosecutors and the DOJ on the existence or nonexistence of probable
cause for the purpose of filing criminal informations, unless such findings are
tainted with grave abuse of discretion, amounting to lack or excess of jurisdiction.
The rationale behind the general rule rests on the principle of separation of powers,
dictating that the determination of probable cause for the purpose of indicting a
suspect is properly an executive function; while the exception hinges on the
limiting principle of checks and balances, whereby the judiciary, through a
special civil action of certiorari, has been tasked by the present Constitution
“to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.” (Emphasis supplied; citations omitted)
In the foregoing context, the Court observes that grave abuse of discretion taints
a public prosecutor’s resolution if he arbitrarily disregards the jurisprudential
parameters of probable cause. In particular, case law states that probable cause, for
the purpose of filing a criminal information, exists when the facts are sufficient to
engender a well-founded belief that a crime has been committed and that the
respondent is probably guilty thereof. It does not mean “actual and positive cause”
nor does it import absolute certainty. Rather, it is merely based on opinion and
reasonable belief and, as such, does not require an inquiry into whether there is
sufficient evidence to procure a conviction; it is enough that it is believed that the act
or omission complained of constitutes the offense charged. As pronounced in Reyes
v. Pearlbank Securities, Inc.:
A finding of probable cause needs only to rest on evidence showing that
more likely than not a crime has been committed by the suspects. It need not
be based on clear and convincing evidence of guilt, not on evidence establishing
guilt beyond reasonable doubt, and definitely not on evidence establishing
absolute certainty of guilt. In determining probable cause, the average man weighs
facts and circumstances without resorting to the calibrations of the rules of
evidence of which he has no technical knowledge. He relies on common sense.
What is determined is whether there is sufficient ground to engender a well-
founded belief that a crime has been committed, and that the accused is
probably guilty thereof and should be held for trial. It does not require an
inquiry as to whether there is sufficient evidence to secure a conviction. (Emphasis
supplied)
Apropos thereto, for the public prosecutor to determine if there exists a well-
founded belief that a crime has been committed, and that the suspect is probably
guilty of the same, the elements of the crime charged should, in all reasonable
likelihood, be present. This is based on the principle that every crime is defined by its
elements, without which there should be, at the most, no criminal offense.
With these precepts in mind, the Court proceeds to assess the specific incidents
in this case.
B. Existence of probable cause on the part of Dangupon.
Records bear out that Dangupon admitted that he was the one who shot Tetet
which eventually caused the latter’s death. The Provincial Prosecutor, however,
relieved him from indictment based mainly on the finding that the aforesaid act was
done either in self-defense, defense of a stranger or in the performance of a lawful
duty or exercise of a right of office, respectively pursuant to paragraphs 1, 2, and 5,
Article 11 of the RPC. The DOJ affirmed the Provincial Prosecutor’s finding, adding
further that Dangupon, as well as the other respondents, enjoys the constitutional
presumption of innocence.
These findings are patently and grossly erroneous.
Records bear out facts and circumstances which show that the elements of
murder — namely: (a) that a person was killed; (b) that the accused killed him; (c) that
the killing was attended by any of the qualifying circumstances mentioned in Article
248 of the RPC; and (d) that the killing is not parricide or infanticide — are, in all
reasonable likelihood, present in Dangupon’s case. As to the first and second
elements, Dangupon himself admitted that he shot and killed Tetet. Anent the third
element, there lies sufficient basis to suppose that the qualifying circumstance of
treachery attended Tetet’s killing in view of the undisputed fact that he was restrained
by respondents and thereby, rendered defenseless. Finally, with respect to the fourth
element, Tetet’s killing can neither be considered as parricide nor infanticide as the
evidence is bereft of any indication that Tetet is related to Dangupon.
At this juncture, it must be noted that Dangupon’s theories of self-
defense/defense of a stranger and performance of an official duty are not clear and
convincing enough to exculpate him at this stage of the proceedings considering the
following circumstances: (a) petitioner’s version of the facts was corroborated by
witnesses Adelaida Samillano and Rolando Corcotchea who stated, among others,
that they saw Tetet raise his hands as a sign of surrender but was still mauled by
armed persons (hence, the presence of unlawful aggression on the part of Tetet and
the lack of any sufficient provocation on the part of Dangupon, the actual motive of
Tetet’s companions, and the lawfulness of the act are put into question); (b) it was
determined that Tetet was handcuffed when he was boarded on the military jeep
(hence, the supposition that Tetet was actually restrained of his movement begs the
questions as to how he could have, in this state, possibly stole the grenade from
Abordo); and (c) petitioner’s evidence show that Tetet suffered from lacerations and
multiple gunshot wounds, the shots causing which having been fired at a close
distance (hence, the reasonable necessity of the means employed to prevent or
repel Tetet’s supposed unlawful aggression, and whether the injury committed be the
necessary consequence of the due performance of such duty or the lawful exercise of
such right are, among others, also put into question). Given the foregoing,
Dangupon’s defenses are better off scrutinized within the confines of a criminal trial.
To add, neither can the dismissal of the murder charge against Dangupon be
sustained in view of his presumption of innocence. Jurisprudence holds that when the
accused admits killing the victim, but invokes a justifying circumstance, the
constitutional presumption of innocence is effectively waived and the burden of
proving the existence of such circumstance shifts to the accused. The rule regarding
an accused’s admission of the victim’s killing has been articulated in Ortega v.
Sandiganbayan, to wit:
Well settled is the rule that where the accused had admitted that he is the
author of the death of the victim and his defense anchored on self-defense, it is
incumbent upon him to prove this justifying circumstance to the satisfaction of the
court. To do so, he must rely on the strength of his own evidence and not on the
weakness of the prosecution, for the accused himself had admitted the killing. The
burden is upon the accused to prove clearly and sufficiently the elements of
self-defense, being an affirmative allegation, otherwise the conviction of the
accused is inescapable. (Emphasis and underscoring supplied)
Therefore, due to the ostensible presence of the crime charged and considering
that Dangupon’s theories of self-defense/defense of a stranger and lawful
performance of one’s duty and the argument on presumption of innocence are, under
the circumstances, not compelling enough to overcome a finding of probable cause,
the Court finds that the DOJ gravely abused its discretion in dismissing the case
against Dangupon. Consequently, the reversal of the CA ruling with respect to the
latter is in order.
C. Existence of probable cause on the part of Fortuno and Abordo.
In similar regard, the Court also finds that grave abuse of discretion tainted the
dismissal of the charges of murder against Fortuno and Abordo.
To elucidate, while petitioner has failed to detail the exact participation of Fortuno
and Abordo in the death of Tetet, it must be noted that the peculiar nature of an
extralegal killing negates the former an opportunity to proffer the same. It is of judicial
notice that extralegal killings are ordinarily executed in a clandestine manner, and, as
such, its commission is largely concealed from the public view of any witnesses.
Notably, unlike in rape cases wherein the victim — albeit ravaged in the dark — may
choose to testify, and whose testimony is, in turn, given great weight and credence
sufficient enough for a conviction, the victim of an extralegal killing is silenced by
death and therefore, the actual participation of his assailants is hardly disclosed. As
these legal realities generally mire extralegal killing cases, the Court observes that
such cases should be resolved with a more circumspect analysis of the incidental
factors surrounding the same, take for instance the actual or likely presence of the
persons charged at the place and time when the killing was committed, the manner in
which the victim was executed (of which the location of the place and the time in
which the killing was done may be taken into consideration), or the possibility that the
victim would have been easily overpowered by his assailants (of which the superior
number of the persons detaining the victim and their ability to wield weapons may be
taken into consideration).
In the present case, the existence of probable cause against Fortuno and Abordo
is justified by the circumstances on record which, if threaded together, would lead a
reasonably discreet and prudent man to believe that they were also probably guilty of
the crime charged. These circumstances are as follows: (a) Fortuno and Abordo were
with Dangupon during the time the latter killed Tetet in an undisclosed place along the
Viga River; (b) Tetet was apprehended, taken into custody and boarded on a military
jeep by the group of armed elements of which Fortuno and Abordo belonged to; (c)
as earlier mentioned, Tetet was handcuffed when he was boarded on the military jeep
and, in effect, restrained of his movement when he supposedly stole the grenade
from Abordo; and (d) also, as previously mentioned, Tetet suffered from lacerations
and multiple gunshot wounds, and that the shots causing the same were fired at a
close distance. Evidently, the confluence of the above-stated circumstances and legal
realities point out to the presence of probable cause for the crime of murder against
Fortuno and Abordo. Hence, the dismissal of the charges against them was — similar
to Dangupon — improper. As such, the CA’s ruling must also be reversed with
respect to Fortuno and Abordo.
D. Lack of probable cause on the part of Villar, Lara, Acaylar, and Balicol.
The Court, however, maintains a contrary view with respect to the determination
of lack of probable cause on the part of Villar, Lara, Acaylar and Balicol.
Records are bereft of any showing that the aforementioned respondents — as
opposed to Dangupon, Fortuno, and Abordo — directly participated in the killing of
Tetet at the Viga River. As observed by the DOJ, Villar, Lara, Acaylar, and Balicol
were not with Tetet at the time he was shot; thus, they could not have been
responsible for his killing. Neither could they be said to have acted in conspiracy with
the other respondents since it was not demonstrated how they concurred in or, in any
way, participated towards the unified purpose of consummating the same act. It is
well-settled that conspiracy exists when one concurs with the criminal design of
another, indicated by the performance of an overt act leading to the crime committed.
Therefore, finding no direct participation or conspiracy on the part of Villar, Lara,
Acaylar, and Balicol, the Court holds that the DOJ did not gravely abuse its discretion
in affirming the Provincial Prosecutor’s dismissal of the charges against them. In this
respect, the CA’s Decision must stand.
As a final word, the Court can only bewail the loss of a family member through the
unfortunate course of an extralegal killing. The historical prevalence of this deplorable
practice has even led to the inception and eventual adoption of the Rules on Amparo
to better protect the sacrosanct right of every person to his life and liberty and not to
be deprived of such without due process of law. Despite the poignancy natural to
every case advanced as an extralegal killing, the Court, as in all courts of law, is
mandated to operate on institutional impartiality — that is, its every ruling,
notwithstanding the sensitivity of the issue involved, must be borne only out of the
facts of the case and scrutinized under the lens of the law. It is pursuant to this
overarching principle that the Court has dealt with the killing of Tetet and partly grants
the present petition. In fine, the case against Dangupon, Fortuno, and Abordo must
proceed and stand the muster of a criminal trial. On the other hand, the dismissal of
the charges against Villar, Lara, Acaylar, and Balicol is sustained.
WHEREFORE, the petition is PARTLY GRANTED. The Decision dated June 30,
2011 of the Court of Appeals in CA-G.R. SP No. 110110 is REVERSED and SET
ASIDE. The Resolution dated March 10, 2003 of the Provincial Prosecutor and the
Resolution dated November 27, 2008 of the Department of Justice in I.S. No. 2002-
414 are NULLIFIED insofar as respondents PO1 Leo T. Dangupon, 1st Lt. Philip
Fortuno, and Cpl. Edilberto Abordo are concerned. Accordingly, the Department of
Justice is DIRECTED to issue the proper resolution in order to charge the above-
mentioned respondents in accordance with this Decision.
SO ORDERED.
 Notes.—A.M. No. 07-9-12-SC or The Rule on the Writ of Amparo was
promulgated to arrest the rampant extralegal killings and enforced disappearances in
the country. (Navia vs. Pardico, 673 SCRA 618 [2012])

Article 6 of the International Covenant on Civil and Political Rights recognizes

every human being’s inherent right to life, while Article 9 thereof ordains that
everyone has the right to liberty and security. The right to life must be protected by
law while the right to liberty and security cannot be impaired except on grounds
provided by and in accordance with law. (Id.)

——o0o——
 G.R. No. 101837. February 11, 1992.
ROLITO GO y TAMBUNTING, petitioner, vs. THE COURT OF APPEALS; THE
HON. BENJAMIN V. PELAYO, Presiding Judge, Branch 168, Regional Trial Court,
NCJR Pasig, M.M.; and PEOPLE OF THE PHILIPPINES, respondents.
Constitutional Law; Warrant of Arrest; Reliance of both petitioner and the Solicitor
General upon Umil v. Ramos is in the circumstances of this case, misplaced.—The reliance of
both petitioner and the Solicitor General upon Umil v. Ramos is, in the circumstances of this
case, misplaced. In Umil v. Ramos, by an eight-to-six vote, the Court sustained the legality of the
warrantless arrests of petitioners made from one (1) to fourteen (14) days after the actual
commission of the offenses, upon the ground that such offenses constituted “continuing crimes.”
Those offenses were subversion, membership in an outlawed organization like the New Peoples
Army, etc. In the instant case, the offense for which petitioner was arrested was murder, an
offense which was obviously commenced and completed at one definite location in time and
space. No one had pretended that the fatal shooting of Maguan was a “continuing crime.”
Same; Same; Court does not believe that the warrantless arrest or detention of petitioner
in the instant case falls within the terms of Section 5 of Rule 113 of the 1985 Rules on Criminal
Procedure.—Secondly, we do not believe that the warrantless “arrest” or detention of petitioner
in the instant case falls within the terms of Section 5 of Rule 113 of the 1985 Rules on Criminal
Procedure.
Same; Same; Same; That the information upon which the police acted had been denied
from statements made by alleged eyewitnesses to the shooting did not however constitute
personal knowledge.—Petitioner’s “arrest” took place six (6) days after the shooting of Maguan.
The “arresting” officers obviously were not present, within the meaning of Section 5(a), at the
time petitioner had allegedly shot Maguan. Neither could the “arrest” effected six (6) days after
the shooting be reasonably regarded as effected “when [the shooting had] in fact just been
committed” within the meaning of Section 5(b). Moreover, none of the “arresting” officers had
any “personal knowledge” of facts indicating that petitioner was the gunman who had shot
Maguan. The information upon which the police acted had been derived from statements made
by alleged eyewitnesses to the shooting—one stated that petitioner was the gunman; another
was able to take down the alleged gunman’s car’s plate number which turned out to be
registered in petitioner’s wife’s name. That information did not, however, constitute “personal
knowledge.”
Same; Same; Same; There was no lawful warrantless arrest of petitioner within the
meaning of Section 5 of Rule 113; Section 7 of Rule 112 is not also applicable.—It is thus clear
to the Court that there was no lawful warrantless arrest of petitioner within the meaning of
Section 5 of Rule 113. It is clear too that Section 7 of Rule 112 is also not applicable.
Same; Same; Same; Same; Since petitioner had not been arrested with or without a
warrant, he was also entitled to be released forthwith subject only to his appearing at the
preliminary investigation.—Indeed, petitioner was not arrested at all. When he walked into the
San Juan Police Station, accompanied by two (2) lawyers, he in fact placed himself at the
disposal of the police authorities. He did not state that he was “surrendering” himself, in all
probability to avoid the implication he was admitting that he had slain Eldon Maguan or that he
was otherwise guilty of a crime. When the police filed a complaint for frustrated homicide with
the Prosecutor, the latter should have immediately scheduled a preliminary investigation to
determine whether there was probable cause for charging petitioner in court for the killing of
Eldon Maguan. Instead, as noted earlier, the Prosecutor proceeded under the erroneous
supposition that Section 7 of Rule 112 was applicable and required petitioner to waive the
provisions of Article 125 of the Revised Penal Code as a condition for carrying out a preliminary
investigation. This was substantive error, for petitioner was entitled to a preliminary investigation
and that right should have been accorded him without any conditions. Moreover, since petitioner
had not been arrested, with or without a warrant, he was also entitled to be released forthwith
subject only to his appearing at the preliminary investigation.
Same; Preliminary Investigation; Court concludes that petitioner’s omnibus motion was in
effect filed with the trial court.—Nonetheless, since petitioner in his omnibus motion was asking
for preliminary investigation and not for a re-investigation (Crespo v. Mogul involved a re-
investigation), and since the Prosecutor himself did file with the trial court, on the 5th day after
filing the information for murder, a motion for leave to conduct preliminary investigation
(attaching to his motion a copy of petitioner’s omnibus motion), we conclude that petitioner’s
omnibus motion was in effect filed with the trial court. What was crystal clear was that petitioner
did ask for a preliminary investigation on the very day that the information was filed without such
preliminary investigation, and that the trial court was five (5) days later apprised of the desire of
the petitioner for such preliminary investigation. Finally, the trial court did in fact grant the
Prosecutor’s prayer for leave to conduct preliminary investigation. Thus, even on the (mistaken)
supposition apparently made by the Prosecutor that Section 7 of Rule 112 of the Revised Rules
of Court was applicable, the 5-day reglementary period on Section 7, Rule 112 must be held to
have been substantially complied with.
Same; Same; The right to have a preliminary investigation conducted before being bound
over to trial for a criminal offense and hence formally at risk of incarceration or some other
penalty is not a mere formal or technical right; it is a substantial right.—We believe and so hold
that petitioner did not waive his right to a preliminary investigation. While that right is statutory
rather than constitutional in its fundament, since it has in fact been established by statute, it is a
component part of due process in criminal justice. The right to have a preliminary investigation
conducted before being bound over to trial for a criminal offense and hence formally at risk of
incarceration or some other penalty, is not a mere formal or technical right; it is
a substantive right. The accused in a criminal trial is inevitably exposed to prolonged anxiety,
aggravation, humiliation, not to speak of expense; the right to an opportunity to avoid a process
painful to any one save, perhaps, to hardened criminals, is a valuable right. To deny petitioner’s
claim to a preliminary investigation would be to deprive him of the full measure of his right to due
process.
Same; Same; Same; The rule is that the right to preliminary investigation is waived when
the accused fails to invoke it before or at the time of entering a plea at arraignment.—The
question may be raised whether petitioner still retains his right to a preliminary investigation in
the instant case considering that he was already arraigned on 23 August 1991. The rule is that
the right to preliminary investigation is waived when the accused fails to invoke it before or at the
time of entering a plea at arraignment. In the instant case, petitioner Go had vigorously insisted
on his right to preliminary investigation before his arraignment. At the time of his arraignment,
petitioner was already before the Court of Appeals on certiorari, prohibition and mandamus
precisely asking for a preliminary investigation before being forced to stand trial.
Same; Same; Same; Same; Court does not believe that by posting bail, petitioner had
waived his right to preliminary investigation.—Again, in the circumstances of this case, we do not
believe that by posting bail, petitioner had waived his right to preliminary investigation. In People
v. Selfaison, we did hold that appellants there had waived their right to preliminary investigation
because immediately after their arrest, they filed bail and proceeded to trial “without previously
claiming that they did not have the benefit of a preliminary investigation.” In the instant case,
petitioner Go asked for release on recognizance or on bail and for preliminary investigation in
one omnibus motion. He had thus claimed his right to preliminary
investigation before respondent Judge approved the cash bond posted by petitioner and ordered
his release on 12 July 1991. Accordingly, we cannot reasonably imply waiver of preliminary
investigation on the part of petitioner.
Same; Same; Contrary to petitioner’s contention, the failure to accord preliminary
investigation did not impair the validity of the information for murder nor affect the jurisdiction of
the trial court.—We would clarify, however, that contrary to petitioner’s contention the failure to
accord preliminary investigation, while constituting a denial of the appropriate and full measure
of the statutory process of criminal justice, did not impair the validity of the information for
murder nor affect the jurisdiction of the trial court.
FELICIANO, J.:
According to the findings of the San Juan Police in their Investigation Report, on 2
July 1991, Eldon Maguan was driving his car along Wilson St., San Juan, Metro
Manila, heading towards P. Guevarra St. Petitioner entered Wilson St., where it is a
one-way street and started travelling in the opposite or “wrong” direction. At the
corner of Wilson and J. Abad Santos Sts., petitioner’s and Maguan’s cars nearly
bumped each other.
Petitioner alighted from his car, walked over and shot Maguan inside his car.
Petitioner then boarded his car and left the scene. A security guard at a nearby
restaurant was able to take down petitioner’s car plate number. The police arrive
shortly thereafter at the scene of the shooting and there retrieved an empty shell and
one round of live ammunition for a 9mm caliber pistol. Verification at the Land
Transportation Office showed that the car was registered to one Elsa Ang Go.
The following day, the police returned to the scene of the shooting to find out
where the suspect had come from; they were informed that petitioner had dined at
Cravings Bake Shop shortly before the shooting. The police obtained a facsimile or
impression of the credit card used by petitioner from the cashier of the bake shop.
The security guard of the bake shop was shown a picture of petitioner and he
positively identified him as the same person who had shot Maguan. Having
established that the assailant was probably the petitioner, the police launched a
manhunt for petitioner.
On 8 July 1991, petitioner presented himself before the San Juan Police Station
to verify news reports that he was being hunted by the police; he was accompanied
by two (2) lawyers. The police forthwith detained him. An eyewitness to the shooting,
who was at the police station at that time, positively identified petitioner as the
gunman. That same day, the police promptly filed a complaint for frustrated homicide
against petitioner with the Office of the Provincial Prosecutor of Rizal. First Assistant
Provincial Prosecutor Dennis Villa Ignacio (“Prosecutor”) informed petitioner, in the
presence of his lawyers, that he could avail himself of his right to preliminary
investigation but that he must first sign a waiver of the provisions of Article 125 of the
Revised Penal Code. Petitioner refused to execute any such waiver.
On 9 July 1991, while the complaint was still with the Prosecutor, and before an
information could be filed in court, the victim, Eldon Maguan, died of his gunshot
wound(s).
Accordingly, on 11 July 1991, the Prosecutor, instead of filing an information for
frustrated homicide, filed an information for murder before the Regional Trial Court.
No bail was recommended. At the bottom of the information, the Prosecutor certified
that no preliminary investigation had been conducted because the accused did not
execute and sign a waiver of the provisions of Article 125 of the Revised Penal Code.
In the afternoon of the same day, 11 July 1991, counsel for petitioner filed with
the Prosecutor an omnibus motion for immediate release and proper preliminary
investigation, alleging that the warrantless arrest of petitioner was unlawful and that
no preliminary investigation had been conducted before the information was filed.
Petitioner also prayed that he be released on recognizance or on bail. Provincial
Prosecutor Mauro Castro, acting on the omnibus motion, wrote on the last page of the
motion itself that he interposed no objection to petitioner being granted provisional
liberty on a cash bond of P100,000.00.
On 12 July 1991, petitioner filed an urgent ex-parte motion for special raffle in
order to expedite action on the Prosecutor’s bail recommendation. The case was
raffled to the sala of respondent Judge, who, on the same date, approved the cash
bond posted by petitioner and ordered his release. Petitioner was in fact released that
same day.
On 16 July 1991, the Prosecutor filed with the Regional Trial Court a motion for
leave to conduct preliminary investigation and prayed that in the meantime all
proceedings in the court be suspended. He stated that petitioner had filed before the
Office of the Provincial Prosecutor of Rizal an omnibus motion for immediate release
and preliminary investigation, which motion had been granted by Provincial
Prosecutor Mauro Castro, who also agreed to recommend cash bail of P100,000.00.
The Prosecutor attached to the motion for leave a copy of petitioner’s omnibus motion
of 11 July 1991.
Also on 16 July 1991, the trial court issued an Order granting leave to conduct
preliminary investigation and cancelling the arraignment set for 15 August 1991 until
after the prosecution shall have concluded its preliminary investigation.
 On 17 July 1991, however, respondent Judge motu proprio issued an
Order, embodying the following: (1) the 12 July 1991 Order which granted bail was
recalled; petitioner was given 48 hours from receipt of the Order to surrender himself;
(2) the 16 July 1991 Order which granted leave to the prosecutor to conduct
preliminary investigation was recalled and cancelled; (3) petitioner’s omnibus motion
for immediate release and preliminary investigation dated 11 July 1991 was treated
as a petition for bail and set for hearing on 23 July 1991.
On 19 July 1991, petitioner filed a petition for certiorari, prohibition and
mandamus before the Supreme Court assailing the 17 July 1991 Order, contending
that the information was null and void because no preliminary investigation had been
previously conducted, in violation of his right to due process. Petitioner also moved
for suspension of all proceedings in the case pending resolution by the Supreme
Court of his petition; this motion was, however, denied by respondent Judge.
On 23 July 1991, petitioner surrendered to the police.
By a Resolution dated 24 July 1991, this Court remanded the petition for
certiorari, prohibition and mandamus to the Court of Appeals.
On 16 August 1991, respondent Judge issued an order in open court setting the
arraignment of petitioner on 23 August 1991.
On 19 August 1991, petitioner filed with the Court of Appeals a motion to restrain
his arraignment.
On 23 August 1991, respondent judge issued a Commitment Order directing the
Provincial Warden of Rizal to admit petitioner into his custody at the Rizal Provincial
Jail. On the same date, petitioner was arraigned. In view, however, of his refusal to
enter a plea, the trial court entered for him a plea of not guilty. The trial court then set
the criminal case for continuous hearings on 19, 24 and 26 September; on 2, 3, 11
and 17 October; and on 7, 8, 14, 15, 21 and 22 November 1991.
On 27 August 1991, petitioner filed a petition for habeas corpus in the Court of
Appeals. He alleged that in view of public respondents’ failure to join issues in the
petition for certiorari earlier filed by him, after the lapse of more than a month, thus
prolonging his detention, he was entitled to be released on habeas corpus.
On 30 August 1991, the Court of Appeals issued the writ of habeas corpus. The
petition for certiorari, prohibition and mandamus, on the one hand, and the petition
for habeas corpus, upon the other, were subsequently consolidated in the Court of
Appeals.
The Court of Appeals, on 2 September 1991, issued a resolution denying
petitioner’s motion to restrain his arraignment on the ground that that motion had
become moot and academic.
On 19 September 1991, trial of the criminal case commenced and the prosecution
presented its first witness.
On 23 September 1991, the Court of Appeals rendered a consolidated
decision dismissing the two (2) petitions, on the following grounds:
a.Petitioner’s warrantless arrest was valid because the offense for which he was
arrested and charged had been “freshly committed.” His identity had been
established through investigation. At the time he showed up at the police station,
there had been an existing manhunt for him. During the confrontation at the San
Juan Police Station, one witness positively identified petitioner as the culprit.
b.Petitioner’s act of posting bail constituted waiver of any irregularity attending his
arrest. He waived his right to preliminary investigation by not invoking it properly
and seasonably under the Rules.
c.The trial court did not abuse its discretion when it issued the 17 July 1991 Order
because the trial court had the inherent power to amend and control its processes
so as to make them conformable to law and justice.
d.Since there was a valid information for murder against petitioner and a valid
commitment order (issued by the trial judge after petitioner surrendered to the
authorities whereby petitioner was given to the custody of the Provincial Warden),
the petition for habeas corpus could not be granted.
On 3 October 1991, the prosecution presented three (3) more witnesses of the trial.
Counsel for petitioner also filed a “Withdrawal of Appearance” with the trial court, with
petitioner’s conformity.
On 4 October 1991, the present Petition for Review on Certiorari was filed. On 14
October 1991, the Court issued a Resolution directing respondent Judge to hold in
abeyance the hearing of the criminal case below until further orders from this Court.
In this Petition for Review, two (2) principal issues need to be addressed: first,
whether or not a lawful warrantless arrest had been effected by the San Juan Police
in respect of petitioner Go: and second, whether petitioner had effectively waived his
right to preliminary investigation. We consider these issues seriatim.
In respect of the first issue, the Solicitor General argues that under the facts of the
case, petitioner had been validly arrested without warrant. Since petitioner’s identity
as the gunman who had shot Eldon Maguan on 2 July 1991 had been sufficiently
established by police work, petitioner was validly arrested six (6) days later at the San
Juan Police Station. The Solicitor General invokes Nazareno v. Station Commander,
etc., et al, one of the seven (7) cases consolidated with In the Matter of the Petition
for Habeas Corpus of Roberto Umil, etc. v. Ramos, et al., where a majority of the
Court upheld a warrantless arrest as valid although effected fourteen (14) days after
the killing in connection with which Nazareno had been arrested. Accordingly, in the
view of the Solicitor General, the provisions of Section 7, Rule 112 of the Rules of
Court were applicable and because petitioner had declined to waive the provisions of
Article 125 of the Revised Penal Code, the Prosecutor was legally justified in filing the
information for murder even without preliminary investigation.
On the other hand, petitioner argues that he was not lawfully arrested without
warrant because he went to the police station six (6) days after the shooting which he
had allegedly perpetrated. Thus, petitioner argues, the crime had not been “just
committed” at the time that he was arrested. Moreover, none of the police officers
who arrested him had been an eyewitness to the shooting of Maguan and accordingly
none had the “personal knowledge” required for the lawfulness of a warrantless
arrest. Since there had been no lawful warrantless arrest. Section 7, Rule 112 of the
Rules of Court which establishes the only exception to the right to preliminary
investigation, could not apply in respect of petitioner.
The reliance of both petitioner and the Solicitor General upon Umil v. Ramos is, in
the circumstances of this case, misplaced. In Umil v. Ramos, by an eight-to-six vote,
the Court sustained the legality of the warrantless arrests of petitioners made from
one (1) to fourteen (14) days after the actual commission of the offenses, upon the
ground that such offenses constituted “continuing crimes.” Those offenses were
subversion, membership in an outlawed organization like the New Peoples Army, etc.
In the instant case, the offense for which petitioner was arrested was murder, an
offense which was obviously commenced and completed at one definite location in
time and space. No one had pretended that the fatal shooting of Maguan was a
“continuing crime.”
Secondly, we do not believe that the warrantless “arrest” or detention of petitioner
in the instant case falls within the terms of Section 5 of Rule 113 of the 1985 Rules on
Criminal Procedure which provides as follows:
“Sec. 5. Arrest without warrant; when lawful.—A peace officer or a private person
may, without a warrant, arrest a person:
(a)When, in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense;
(b)When an offense has in fact just been committed, and he has personal
knowledge of facts indicating that the person to be arrested has committed
it; and
(c)When the person to be arrested is a prisoner who has escaped from a
penal establishment or place where he is serving final judgment or
temporarily confined while his case is pending, or has escaped while being
transferred from one confinement to another.
In cases falling under paragraphs (a) and (b) hereof, the person arrested
without a warrant shall be forthwith delivered to the nearest police station or jail,
and he shall be proceeded against in accordance with Rule 112, Section 7.”
Petitioner’s “arrest” took place six (6) days after the shooting of Maguan. The
“arresting” officers obviously were not present, within the meaning of Section 5(a), at
the time petitioner had allegedly shot Maguan. Neither could the “arrest” effected six
(6) days after the shooting be reasonably regarded as effected “when [the shooting
had] in fact just been committed” within the meaning of Section 5(b). Moreover, none
of the “arresting” officers had any “personal knowledge” of facts indicating that
petitioner was the gunman who had shot Maguan. The information upon which the
police acted had been derived from statements made by alleged eyewitnesses to the
shooting—one stated that petitioner was the gunman; another was able to take down
the alleged gunman’s car’s plate number which turned out to be registered in
petitioner’s wife’s name. That information did not, however, constitute “personal
knowledge.”
It is thus clear to the Court that there was no lawful warrantless arrest of petitioner
within the meaning of Section 5 of Rule 113. It is clear too that Section 7 of Rule 112,
which provides:
“Sec. 7. When accused lawfully arrested without warrant.—When a person is
lawfully arrested without a warrant for an offense cognizable by the Regional Trial
Court the complaint or information may be filed by the offended party, peace officer
or fiscal without a preliminary investigation having been first conducted, on the
basis of the affidavit of the offended party or arresting office or person.
However, before the filing of such complaint or information, the person
arrested may ask for a preliminary investigation by a proper officer in accordance
with this Rule, but he must sign a waiver of the provisions of Article 125 of the
Revised Penal Code, as amended, with the assistance of a lawyer and in case of
non-availability of a lawyer, a responsible person of his choice. Notwithstanding
such waiver, he may apply for bail as provided in the corresponding rule and the
investigation must be terminated within fifteen (15) days from its inception.
If the case has been filed in court without a preliminary investigation having
been first conducted, the accused may within five (5) days from the time he learns
of the filing of the information, ask for a preliminary investigation with the same
right to adduce evidence in his favor in the manner prescribed in this Rule.” (Italics
supplied)
is also not applicable. Indeed, petitioner was not arrested at all. When he walked into
the San Juan Police Station, accompanied by two (2) lawyers, he in fact placed
himself at the disposal of the police authorities. He did not state that he was
“surrendering” himself, in all probability to avoid the implication he was admitting that
he had slain Eldon Maguan or that he was otherwise guilty of a crime. When the
police filed a complaint for frustrated homicide with the Prosecutor, the latter should
have immediately scheduled a preliminary investigation to determine whether there
was probable cause for charging petitioner in court for the killing of Eldon Maguan.
Instead, as noted earlier, the Prosecutor proceeded under the erroneous supposition
that Section 7 of Rule 112 was applicable and required petitioner to waive the
provisions of Article 125 of the Revised Penal Code as a condition for carrying out a
preliminary investigation. This was substantive error, for petitioner was entitled to a
preliminary investigation and that right should have been accorded him without any
conditions. Moreover, since petitioner had not been arrested, with or without a
warrant, he was also entitled to be released forthwith subject only to his appearing at
the preliminary investigation.

Turning to the second issue of whether or not petitioner had waived his right to
preliminary investigation, we note that petitioner had from the very beginning
demanded that a preliminary investigation be conducted. As earlier pointed out, on
the same day that the information for murder was filed with the Regional Trial Court,
petitioner filed with the Prosecutor an omnibus motion for immediate release and
preliminary investigation. The Solicitor General contends that that omnibus motion
should have been filed with the trial court and not with the Prosecutor, and that
petitioner should accordingly be held to have waived his right to preliminary
investigation. We do not believe that waiver of petitioner’s statutory right to
preliminary investigation may be predicated on such a slim basis. The preliminary
investigation was to be conducted by the Prosecutor, not by the Regional Trial Court.
It is true that at the time of filing of petitioner’s omnibus motion, the information for
murder had already been filed with the Regional Trial Court: it is not clear from the
record whether petitioner was aware of this fact at the time his omnibus motion was
actually filed with the Prosecutor. In Crespo v. Mogul, this Court held:
“The preliminary investigation conducted by the fiscal for the purpose of
determining whether a prima facie case exists warranting the prosecution of the
accused is terminated upon the filing of the information in the proper court. In turn,
as above stated, the filing of said information sets in motion the criminal action
against the accused in Court. Should the fiscal find it proper to conduct a
reinvestigation of the case, at such stage, the permission of the Court must be
secured. After such reinvestigation the finding and recommendations of the fiscal
should be submitted to the Court for appropriate action. While it is true that the
fiscal has the quasi judicial discretion to determine whether or not a criminal case
should be filed in court or not, once the case had already been brought to Court
whatever disposition the fiscal may feel should be proper in the case thereafter
should be addressed for the consideration of the Court. The only qualification is
that the action of the Court must not impair the substantial rights of the accused,
or the right of the People to due process of law.
xxx xxx xxx
The rule therefore in this jurisdiction is that once a complaint or information is
filed in Court any disposition of the case [such] as its dismissal or the conviction or
acquittal of the accused rests in the sound discretion of the Court. Although the
fiscal retains the direction and control of the prosecution of criminal cases even
while the case is already in Court he cannot impose his opinion on the trial court.
The Court is the best and sole judge on what to do with the case before it. x x x”
(Citations omitted; italics supplied)
Nonetheless, since petitioner in his omnibus motion was asking for preliminary
investigation and not for a re-investigation (Crespo v. Mogul involved a re-
investigation), and since the Prosecutor himself did file with the trial court, on the 5th
day after filing the information for murder, a motion for leave to conduct preliminary
investigation (attaching to his motion a copy of petitioner’s omnibus motion), we
conclude that petitioner’s omnibus motion was in effect filed with the trial court. What
was crystal clear was that petitioner did ask for a preliminary investigation on the very
day that the information was filed without such preliminary investigation, and that the
trial court was five (5) days later apprised of the desire of the petitioner for such
preliminary investigation. Finally, the trial court did in fact grant the Prosecutor’s
prayer for leave to conduct preliminary investigation. Thus, even on the (mistaken)
supposition apparently made by the Prosecutor that Section 7 of Rule 112 of the
Revised Rules of Court was applicable, the 5-day reglementary period on Section 7,
Rule 112 must be held to have been substantially complied with.
We believe and so hold that petitioner did not waive his right to a preliminary
investigation. While that right is statutory rather than constitutional in its fundament,
since it has in fact been established by statute, it is a component part of due process
in criminal justice. The right to have a preliminary investigation conducted before
being bound over to trial for a criminal offense and hence formally at risk of
incarceration or some other penalty, is not a mere formal or technical right; it is
a substantive right. The accused in a criminal trial is inevitably exposed to prolonged
anxiety, aggravation, humiliation, not to speak of expense; the right to an opportunity
to avoid a process painful to any one save, perhaps, to hardened criminals, is a
valuable right. To deny petitioner’s claim to a preliminary investigation would be to
deprive him of the full measure of his right to due process.
The question may be raised whether petitioner still retains his right to a
preliminary investigation in the instant case considering that he was already arraigned
on 23 August 1991. The rule is that the right to preliminary investigation is waived
when the accused fails to invoke it before or at the time of entering a plea at
arraignment. In the instant case, petitioner Go had vigorously insisted on his right to
preliminary investigation before his arraignment. At the time of his arraignment,
petitioner was already before the Court of Appeals on certiorari, prohibition and
mandamus precisely asking for a preliminary investigation before being forced to
stand trial.
Again, in the circumstances of this case, we do not believe that by posting bail,
petitioner had waived his right to preliminary investigation. In People v. Selfaison, we
did hold that appellants there had waived their right to preliminary investigation
because immediately after their arrest, they filed bail and proceeded to trial “without
previously claiming that they did not have the benefit of a preliminary investigation.” In
the instant case, petitioner Go asked for release on recognizance or on bail and for
preliminary investigation in one omnibus motion. He had thus claimed his right to
preliminary investigation before respondent Judge approved the cash bond posted by
petitioner and ordered his release on 12 July 1991. Accordingly, we cannot
reasonably imply waiver of preliminary investigation on the part of petitioner. In fact,
when the Prosecutor filed a motion in court asking for leave to conduct preliminary
investigation, he clearly if impliedly recognized that petitioner’s claim to preliminary
investigation was a legitimate one.
We would clarify, however, that contrary to petitioner’s contention the failure to
accord preliminary investigation, while constituting a denial of the appropriate and full
measure of the statutory process of criminal justice, did not impair the validity of the
information for murder nor affect the jurisdiction of the trial court.
It must also be recalled that the Prosecutor had actually agreed that petitioner
was entitled to bail. This was equivalent to an acknowledgment on the part of the
Prosecutor that the evidence of guilt then in his hands was not strong. Accordingly,
we consider that the 17 July 1991 order of respondent Judge recalling his own order
granting bail and requiring petitioner to surrender himself within forty-eight (48) hours
from notice, was plainly arbitrary considering that no evidence at all—and certainly
no new or additional evidence—had been submitted to respondent Judge that could
have justified the recall of his order issued just five (5) days before. It follows that
petitioner was entitled to be released on bail as a matter of right.
The final question which the Court must face is this: how does the fact that, in the
instant case, trial on the merits has already commenced, the Prosecutor having
already presented four (4) witnesses, impact upon, firstly, petitioner’s right to a
preliminary investigation and secondly, petitioner’s right to be released on bail? Does
he continue to be entitled to have a preliminary investigation conducted in respect of
the charge against him? Does petitioner remain entitled to be released on bail?
Turning first to the matter of preliminary investigation, we consider that petitioner
remains entitled to a preliminary investigation although trial on the merits has already
began. Trial on the merits should be suspended or held in abeyance and a
preliminary investigation forthwith accorded to petitioner. It is true that the Prosecutor
might, in view of the evidence that he may at this time have on hand, conclude that
probable cause exists; upon the other hand, the Prosecutor conceivably could reach
the conclusion that the evidence on hand does not warrant a finding of probable
cause. In any event, the constitutional point is that petitioner was not accorded what
he was entitled to by way of procedural due process. Petitioner was forced to undergo
arraignment and literally pushed to trial without preliminary investigation, with
extraordinary haste, to the applause from the audience that filled the courtroom. If he
submitted to arraignment and trial, petitioner did so “kicking and screaming,” in a
manner of speaking. During the proceedings held before the trial court on 23 August
1991, the date set for arraignment of petitioner, and just before arraignment, counsel
made very clear petitioner’s vigorous protest and objection to the arraignment
precisely because of the denial of preliminary investigation. So energetic and
determined were petitioner’s counsel’s protest and objection that an obviously
angered court and prosecutor dared him to withdraw or walkout, promising to replace
him with counsel de oficio. During the trial, just before the prosecution called its first
witness, petitioner through counsel once again reiterated his objection to going to trial
without preliminary investigation: petitioner’s counsel made of record his “continuing
objection.” Petitioner had promptly gone to the appellate court on certiorari and
prohibition to challenge the lawfulness of the procedure he was being forced to
undergo and the lawfulness of his detention. If he did not walkout on the trial, and if he
cross-examined the prosecution’s witnesses, it was because he was extremely loath
to be represented by counsel de oficio selected by the trial judge, and to run the risk
of being held to have waived also his right to use what is frequently the only test of
truth in the judicial process.
In respect of the matter of bail, we similarly believe and so hold that petitioner
remains entitled to be released on bail as a matter of right. Should the evidence
already of record concerning petitioner’s guilt be, in the reasonable belief of the
Prosecutor, strong, the Prosecutor may move in the trial court for cancellation of
petitioner’s bail. It would then be up to the trial court, after a careful and objective
assessment of the evidence on record, to grant or deny the motion for cancellation of
bail.
To reach any other conclusion here, that is, to hold that petitioner’s rights to a
preliminary investigation and to bail were effectively obliterated by evidence
subsequently admitted into the record would be to legitimize the deprivation of due
process and to permit the Government to benefit from its own wrong or culpable
omission and effectively to dilute important rights of accused persons well-nigh to the
vanishing point. It may be that to require the State to accord petitioner his rights to a
preliminary investigation and to bail at this point, could turn out ultimately to be largely
a ceremonial exercise. But the Court is not compelled to speculate. And, in any case,
it would not be idle ceremony; rather it would be a celebration by the State of the
rights and liberties of its own people and a reaffirmation of its obligation and
determination to respect those rights and liberties.
ACCORDINGLY, the Court Resolved to GRANT the Petition for Review on
Certiorari. The Order of the trial court dated 17 July 1991 is hereby SET ASIDE and
NULLIFIED, and the Decision of the Court of Appeals dated 23 September 1991
hereby REVERSED.
The Office of the Provincial Prosecutor is hereby ORDERED to conduct forthwith
a preliminary investigation of the charge of murder against petitioner Go, and to
complete such preliminary investigation within a period of fifteen (15) days from
commencement thereof. The trial on the merits of the criminal case in the Regional
Trial Court shall be SUSPENDED to await the conclusion of the preliminary
investigation.
Meantime, petitioner is hereby ORDERED released forthwith upon posting of a
cash bail bond of One Hundred Thousand Pesos (P100,000.00). This release shall be
without prejudice to any lawful order that the trial court may issue, should the Office of
the Provincial Prosecutor move for cancellation of bail at the conclusion of the
preliminary investigation.
No pronouncement as to costs. This Decision is immediately executory.
SO ORDERED.
——o0o——
 G.R. Nos. 69863-65. December 10, 1990
LINO BROCKA, BENJAMIN CERVANTES, COSME GARCIA, RODOLFO
SANTOS, VALENTINO SALIPSIP, RICARDO VEGA, ERIC MARIANO, JOSE
EMMANUEL OYALES, RONNIE MATTA, ALFREDO VIAJE, RUBEN EUGENIO,
REYNALDO ORTIZ, ORLANDO ORTIZ, NOEL REYES, EDUARDO IMPERIAL,
NESTOR SARMIENTO, FRANCO PALISOC, VIRGILIO DE GUZMAN, ALBERTO
REYES, JESSIE PINILI, ROMULO AUGUIS, DOMINADOR RESURRECION III,
RONNIE LAYGO, ROSAURO ROQUE, CLARENCE SORIANO, OCTAVO
DEPAWA, CARLITO LA TORRE, SEVERNO ILANO, JR., DOMINGO CAJIPE,
ALAN ALEGRE, RAMON MARTINEZ, MA. GILDA HERNANDEZ, EDNA P.
VILLANUEVA, DOLLY S. CANU, MELQUIADES C. ATIENZA, ELIGIO P. VERA
CRUZ, ROGER C. BAGAN, ABUNDIO M. CALISTE, petitioners, vs. JUAN PONCE
ENRILE, MAJ. GENERAL FIDEL V. RAMOS, BRIG. GENERAL PEDRO
BALBANERO, COL. ABAD, COL. DAWIS, SERGIO APOSTOL, P/LT. RODOLFO
M. GARCIA and JUDGE RICARDO TENSUAN, respondents.
Criminal Procedure; Injunction; Instances when criminal prosecution may be stopped by
the courts.—Indeed, the general rule is that criminal prosecution may not be restrained or stayed
by injunction, preliminary or final. There are however exceptions, among which are: "a. To afford
adequate protection to the constitutional rights of the accused (Hernandez vs. Albano, et al., L-
19272, January 25, 1967, 19 SCRA 95); "b. When necessary for the orderly administration of
justice or to avoid oppression or multiplicity of actions (Dimayuga, et al. vs. Fernandez, 43 Phil.
304; Hernandez vs. Albano, supra; Fortun vs. Labang, et al., L-38383, May 27, 1981, 104 SCRA
607); "c. When there is a pre-judicial question which is sub judice (De Leon vs. Mabanag, 70
Phil. 202); "d. When the acts of the officer are without or in excess of authority (Planas vs. Gil,
67 Phil. 62); "e. Where the prosecution is under an invalid law, ordinance or regulation (Young
vs. Rafferty, 33 Phil. 556; Yu Cong Eng vs. Trinidad, 47 Phil. 385, 389); "f. When double
jeopardy is clearly apparent (Sangalang vs. People and Avendia, 109 Phil. 1140); "g. Where the
court has no jurisdiction over the offense (Lopez vs. City Judge, L-25795, October 29, 1966, 18
SCRA 616); "h. Where it is a case of persecution rather than prosecution (Rustia vs. Ocampo,
CA-G.R. No. 4760, March 25, 1960); "i. Where the charges are manifestly false and motivated
by the lust for vengeance (Recto vs. Castelo, 18 L.J. [1953], cited in Rañoa vs. Alvendia, CA-
G.R. No. 30720-R, October 8,1962; Cf. Guingona, et al. vs. City Fiscal, L60033, April
4,1984,128 SCRA 577); and "j. When there is clearly no prima facie case against the accused
and a motion to quash on that ground has been denied (Salonga vs. Paño, et al., L-59524,
February 18, 1985, 134 SCRA 438). "7. Preliminary injunction has been issued by the Supreme
Court to prevent the threatened unlawful arrest of petitioners (Rodriguez vs. Castelo, L-6374,
August 1, 1953)."
Same; Same; Criminal prosecution may be stopped if preliminary investigation conducted
hastily.—We, therefore, rule that where there is manifest bad faith that accompanies the filing of
criminal charges, as in the instant case where Brocka, et al. were barred from enjoying
provisional release until such time that charges were filed, and where a sham preliminary
investigation was hastily conducted, charges that are filed as a result should lawfully be
enjoined.
MEDIALDEA, J.:
This petition was originally filed on February 13, 1985 to secure the release of
petitioners on habeas corpus and to permanently enjoin the City Fiscal of Quezon
City from investigating charges of "Inciting to Sedition" against petitioners Lino
Brocka, Benjamin Cervantes, Cosme Garcia and Rodolfo Santos, (hereafter Brocka,
et al.). On learning that the corresponding informations for this offense has been filed
by the City Fiscal against them on February 11, 1985, a supplemental petition was
filed on February 19, 1985 (p. 51, Rollo) to implead the Presiding Judge, and to enjoin
the prosecution of Criminal Cases Nos. Q38023, Q-38024 and Q-38025 (p. 349,
Rollo) and the issuance of warrants for their arrests, including their arraignment.
Since then President Ferdinand E. Marcos had ordered the provisional release of
Brocka, et al., the issue on habeas corpus has become moot and academic (p. 396,
Rollo). We shall thus focus on the question of whether or not the prosecution of the
criminal cases for Inciting to Sedition may lawfully be enjoined.
Petitioners were arrested on January 28, 1985 by elements of the Northern Police
District following the forcible and violent dispersal of a demonstration held in
sympathy with the jeepney strike called by the Alliance of Concerned Transport
Organization (ACTO). Thereafter, they were charged with Illegal Assembly in Criminal
Cases Nos. 37783, 37787 and 37788 with Branch 108, Regional Trial Court, NCJR,
Quezon City.
Except for Brocka, et al. who were charged as leaders of the offense of Illegal
Assembly and for whom no bail was recommended, the other petitioners were
released on bail of P3,000.00 each. Brocka, et al.'s provisional release was ordered
only upon an urgent petition for bail for which daily hearings from February 1-7, 1985
were held.
However, despite service of the order of release on February 9, 1985, Brocka, et
al. remained in detention, respondents having invoked a Preventive Detention Action
(PDA) allegedly issued against them on January 28, 1985 (p. 6, Rollo). Neither the
original, duplicate original nor certified true copy of the PDA was ever shown to them
(p. 367, Rollo).
Brocka, et al. were subsequently charged on February 11, 1985 with Inciting to
Sedition, docketed as Criminal Cases Nos. Q-38023, Q-38024 and Q-38025 (p. 349,
Rollo), without prior notice to their counsel (p. 7, Rollo). The original informations filed
recommended no bail (p. 349, Rollo). The circumstances surrounding the hasty filing
of this second offense are cited by Brocka, et al. (quoting from a separate petition
filed on their behalf in G.R. Nos. 69848-50 entitled "Sedfrey A. Ordoñez vs. Col.
Julian Arzaga, et al."), as follows:
"x x x.
"6. The 'sham' character of the inquest examination concocted by all
respondents is starkly bizarre when we consider that as early as 10:30 A.M. today,
 February 11, 1985, Benjamin Cervantes was able to contact undersigned
petitioner by phone informing counsel that said Benjamin Cervantes and the 4
other persons who are the subjects of this petition will be brought before the
Quezon City Fiscal at 2:30 for undisclosed reasons: subsequently, another phone
call was received by petitioning counsel informing him that the appearance of
Benjamin Cervantes et al. was to be at 2:00 P.M. When petitioning counsel arrived
in the office of Assistant City Fiscal Arturo Tugonon, the complainants' affidavits
had not yet been received by any of the panel of three assistant city fiscals,
although the five persons under detention were already in the office of said
assistant fiscal as early as 2:00 P.M. It was only at 3:00 when a representative of
the military arrived bringing with him alleged statements of complainants against
Lino Broka (sic) et al. for alleged inciting to sedition, whereupon undersigned
counsel asked respondent Colonel Agapito Abad 'who ordered the detained
persons to be brought to the office of Assistant Fiscal Arturo Tugonon since there
were no charges on file;' and said Colonel Agapito Abad said aloud: 'I only received
a telephone call from Colonel Arzaga about 11:00 A.M. to bring the detained
persons today—I am only the custodian.' At 3:15, petitioning counsel inquired from
the Records Custodian when the charges against Lino Broka (sic) had been
officially received and he was informed that the said charges were never coursed
through the Records Office.
"7. Under the facts narrated above, respondents have conspired to use the
strong arm of the law and hatched the nefarious scheme to deprive Lino Broka
(sic) et al. the right to bail because the utterances allegedly constituting inciting to
sedition under Article 142 of the Revised Penal Code are, except for varying
nuances, almost verbatim the same utterances which are the subject of Criminal
Cases No. 37783, 37787 and 37788 and for which said detained persons are
entitled to be released on bail as a matter of constitutional right. Among the
utterances allegedly made by the accused and which the respondents claimed to
be violative of Article 142 of the Revised Penal Code are: 'Makiisa sa mga drivers,'
'Makiisa sa aming layunin,' 'Digmaang bayan ang sagot sa kahirapan,' Itigil ang
pakikialam ng imperyalismo sa Pilipinas,' 'Rollback ng presyo ng langis sa 95
Centavos.' (See Annex B)
"8. That when petitioning counsel and other members of the defense panel
requested that they be given 7 days within which said counsel may confer with
their clients—the detained persons named above, the panel of assistant fiscals
demanded that said detained persons should sign a 'waiver' of their rights under
Article 125 of the Revised Penal Code as a condition for the grant of said request,
which is a harrassing requirement considering that Lino Broka (sic) et al. were
already under the detention, albeit illegally, and they could not have waived the
right under Rule 125 which they did not enjoy at the time the ruling was made by
the panel of assistant city fiscals." (pp. 46, Rollo in G.R. 69848-50).
They were released provisionally on February 14, 1985, on orders of then President
F. E. Marcos. The circumstances of their release are narrated in Our resolution dated
January 26, 1985, as quoted in the Solicitor General's Manifestation as follows:
"G.R. Nos. 69848-50 (Sedfrey A. Ordoñez, Petitioner, vs. Col. Julian Arzaga, et
al., Respondents).—Petitioner Sedfrey A. Ordoñez filed this petition for habeas
corpus in behalf of Lino Brocka, Benjamin Cervantes, Cosme Garcia, Alexander
Luzano, and Rodolfo Santos, who were all detained under a Preventive Detention
Action (PDA) issued by then President Ferdinand E. Marcos on January 28, 1985.
They were charged in three separate informations of the crime of illegal assembly
under Art. 146, paragraph 3 of the Revised Penal Code, as amended by PD 1834.
On February 7, 1985, the Honorable Miriam Defensor Santiago, Regional Trial
Judge of Quezon City, issued a resolution in the above criminal cases, directing
the release of the five accused on bail of P6,000.00 for each of them, and from
which resolution the respondent fiscals took no appeal. Immediately thereafter, the
accused filed their respective bail bonds. This notwithstanding, they continued to
be held in detention by order of the respondent colonels; and on February 11,
1985, these same accused were 'reinvestigated,' this time on charges of 'inciting
to sedition' under Art. 142 of the Revised Penal Code, following which
corresponding cases were filed. The respondents complied with Our resolution
requiring them, inter alia, to make a RETURN of the writ of habeas corpus. In their
RETURN, it appeared that all the accused had already been released, four of them
on February 15, 1985 and one February 8, 1985. The petitioner, nevertheless,
argued that the petition has not become moot and academic because the accused
continue to be in the custody of the law under an invalid charge of inciting to
sedition." (p. 395, Rollo)
Hence, this petition.
Brocka, et al. contend that respondents' manifest bad faith and/or harassment are
sufficient bases for enjoining their criminal prosecution, aside from the fact that the
second offense of inciting to sedition is illegal, since it is premised on one and the
same act of attending and participating in the ACTO jeepney strike. They maintain
that while there may be a complex crime from a single act (Art. 48, RTC), the law
does not allow the splitting of a single act into two offenses and filing two informations
therefor, further, that they will be placed in double jeopardy.
The primary issue here is the legality of enjoining the criminal prosecution of a
case, since the two other issues raised by Brocka, et al. are matters of defense
against the sedition charge.
We rule in favor of Brocka, et al. and enjoin their criminal prosecution for the
second offense of inciting to sedition.
Indeed, the general rule is that criminal prosecution may not be restrained or
stayed by injunction, preliminary or final. There are however exceptions, among which
are:
"a.To afford adequate protection to the constitutional rights of the accused
(Hernandez vs. Albano, et al., L-19272, January 25, 1967, 19 SCRA 95);
"b.When necessary for the orderly administration of justice or to avoid oppression
or multiplicity of actions (Dimayuga, et al. vs. Fernandez, 43 Phil. 304; Hernandez
vs. Albano, supra; Fortun vs. Labang, et al., L-38383, May 27, 1981, 104 SCRA
607);
"c.When there is a pre-judicial question which is sub judice (De Leon vs.
Mabanag, 70 Phil. 202);
"d.When the acts of the officer are without or in excess of authority (Planas vs.
Gil, 67 Phil. 62);
 "e.Where the prosecution is under an invalid law, ordinance or regulation (Young
vs. Rafferty, 33 Phil. 556; Yu Cong Eng vs. Trinidad, 47 Phil. 385, 389);
"f.When double jeopardy is clearly apparent (Sangalang vs. People and
Avendia, 109 Phil. 1140);
"g.Where the court has no jurisdiction over the offense (Lopez vs. City Judge, L-
25795, October 29,1966,18 SCRA 616);
"h.Where it is a case of persecution rather than prosecution (Rustia vs.
Ocampo, CA-G.R. No. 4760, March 25, 1960);
"i.Where the charges are manifestly false and motivated by the lust for vengeance
(Recto vs. Castelo, 18 L.J. [1953], cited in Rañoa vs. Alvendia, CA-G.R. No.
30720-R, October 8,1962; Cf. Guingona, et al. vs. City Fiscal, L-60033, April
4,1984,128 SCRA 577); and
"j.When there is clearly no prima facie case against the accused and a motion to
quash on that ground has been denied (Salonga vs. Paño, et al., L-59524,
February 18, 1985, 134 SCRA 438).
"7.Preliminary injunction has been issued by the Supreme Court to prevent the
threatened unlawful arrest of petitioners (Rodriguez vs. Castelo, L-6374, August
1, 1953)." (cited in Regalado, Remedial Law Compendium, p. 188,1988 Ed.)
In the petition before Us, Brocka, et al. have cited the circumstances to show that the
criminal proceedings had become a case of persecution, having been undertaken by
state officials in bad faith.
Respondents, on the other hand, had invoked a PDA in refusing Brocka, et al.'s
release from detention (before their release on orders of then Pres. Marcos). This
PDA was, however, issued on January 28, 1985, but was invoked only on February 9,
1985 (upon receipt of the trial court's order of release). Under the guidelines issued,
PDAs shall be invoked within 24 hours (in Metro Manila) or 48 hours (outside Metro
Manila). (Ilagan v. Enrile, G.R. No. 70748, October 28, 1985, 139 SCRA 349).
Noteworthy also is Brocka, et al.'s claim that, despite subpoenas for its production,
the prosecution merely presented a purported xerox copy of the invoked PDA (par. 4,
CounterRejoinder, p. 367, Rollo).
The foregoing circumstances were not disputed by the Solicitor General's office.
In fact they found petitioner's plight "deplorable" (par. 51, Manifestation, p. 396,
Rollo).
The hasty filing of the second offense, premised on a spurious and inoperational
PDA, certainly betrays respondent's bad faith and malicious intent to pursue criminal
charges against Brocka, et al.
We have expressed Our view in the Ilagan case that "individuals against whom
PDAs have been issued should be furnished with the original, and the duplicate
original, and a certified true copy issued by the official having official custody of the
PDA, at the time of the apprehension" (supra, p. 369).
We do not begrudge the zeal that may characterize a public official's prosecution
of criminal offenders. We, however, believe that this should not be a license to run
roughshod over a citizen's basic constitutional rights, such as due process, or
manipulate the law to suit dictatorial tendencies.
We are impelled to point out a citizen's helplessness against the awesome powers of
a dictatorship. Thus, while We agree with the Solicitor Greneral's observation and/or
manifestation that Brocka, et al. should have filed a motion to quash the information,
We, however, believe that such a course of action would have been a futile move,
considering the circumstances then prevailing. Thus, the tenacious invocation of a
spurious and inoperational PDA and the sham and hasty preliminary investigation
were clear signals that the prosecutors intended to keep Brocka, et al. in detention
until the second offense of "Inciting to Sedition" could be facilitated and justified
without need of issuing a warrant of arrest anew. As a matter of fact the
corresponding informations for this second offense were hastily filed on February 11,
1985, or two days after Brocka, et al.'s release from detention was ordered by the trial
judge on February 9, 1985.
Constitutional rights must be upheld at all costs, for this gesture is the true sign of
democracy. These may not be set aside to satisfy perceived illusory visions of
national grandeur.
In the case of J. Salonga v. Cruz Paño, We point out:
"Infinitely more important than conventional adherence to general rules of criminal
procedure is respect for the citizen's right to be free not only from arbitrary arrest
and punishment but also from unwarranted and vexatious prosecution. x x x." (G.R.
No. L-59524, February 18, 1985, 134 SCRA 438-at p. 448)
We, therefore, rule that where there is manifest bad faith that accompanies the filing
of criminal charges, as in the instant case where Brocka, et al. were barred from
enjoying provisional release until such time that charges were filed, and where a
sham preliminary investigation was hastily conducted, charges that are filed as a
result should lawfully be enjoined.
ACCORDINGLY, the petition is hereby GRANTED. The trial court is
PERMANENTLY ENJOINED from proceeding in any manner with the cases subject
of the petition. No costs.
SO ORDERED.
Notes.—While the Fiscal has the discretion to decide whether or not a case should be
filed, once an information is filed any disposition of the case rests on the court's sound
discretion. (Dungog vs. Court of Appeals, 159 SCRA 145.)
Omission of the signature of the accused and counsel renders the stipulation of facts
inadmissible in evidence. (Fule vs. Court of Appeals, 162 SCRA 467.)
——o0o——