SECOND DIVISION

TEODORO C. BORLONGAN, JR., G.R. No. 143591

CORAZON M. BEJASA, ARTURO E.
MANUEL, JR., ERIC L. LEE, P.
SIERVO H. DIZON, BENJAMIN DE Present:
LEON, DELFIN C. GONZALES, JR.,
and BEN YU LIM, JR.,
Petitioners, BRION, J.,
Acting Chairperson,
DEL CASTILLO,
VILLARAMA, JR.,*
PEREZ, and
- versus - MENDOZA, JJ.**

MAGDALENO M. PEÑA and HON.

MANUEL Q. LIMSIACO, JR., as Judge
Designate of the Municipal Trial Court in
Cities, Bago City, Promulgated:
Respondents.
May 5, 2010
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DECISION

PEREZ, J.:

The pivotal issue in this case is whether or not the Court of Appeals, in its Decision1[1]
dated 20 June 2000 in CA-G.R. SP No. 49666, is correct when it dismissed the petition for
certiorari filed by petitioners Teodoro C. Borlongan, Jr., Corazon M. Bejasa, Arturo E. Manuel,
Jr., Benjamin de Leon, P. Siervo H. Dizon, Delfin C. Gonzales, Jr., Eric L. Lee and Ben Yu Lim,
Jr., and ruled that the Municipal Trial Court in Cities (MTCC), Bago City, did not gravely abuse
its discretion in denying the motion for reinvestigation and recall of the warrants of arrest in
Criminal Case Nos. 6683, 6684, 6685, and 6686.

The factual antecedents of the case are as follows:

Respondent Atty. Magdaleno M. Peña (Atty. Peña) instituted a civil case for recovery of
agent’s compensation and expenses, damages, and attorney’s fees 2[2] against Urban Bank and
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herein petitioners, before the Regional Trial Court (RTC) of Negros Occidental, Bago City. The
case was raffled to Branch 62 and was docketed as Civil Case No. 754. Atty. Peña anchored his
claim for compensation on the Contract of Agency3[3] allegedly entered into with the petitioners,
wherein the former undertook to perform such acts necessary to prevent any intruder and squatter
from unlawfully occupying Urban Bank’s property located along Roxas Boulevard, Pasay City.
Petitioners filed a Motion to Dismiss4[4] arguing that they never appointed the respondent as
agent or counsel. Attached to the motion were the following documents: 1) a Letter 5[5] dated 19
December 1994 signed by Herman Ponce and Julie Abad on behalf of Isabela Sugar Company,
Inc. (ISCI), the original owner of the subject property; 2) an unsigned Letter 6[6] dated 7 December
1994 addressed to Corazon Bejasa from Marilyn G. Ong; 3) a Letter 7[7] dated 9 December 1994
addressed to Teodoro Borlongan, Jr. and signed by Marilyn G. Ong; and 4) a Memorandum 8[8]
dated 20 November 1994 from Enrique Montilla III. Said documents were presented in an
attempt to show that the respondent was appointed as agent by ISCI and not by Urban Bank or
by the petitioners.

In view of the introduction of the above-mentioned documents, Atty. Peña filed his
Complaint-Affidavit9[9] with the Office of the City Prosecutor, Bago City.10[10] He claimed that
said documents were falsified because the alleged signatories did not actually affix their
signatures, and the signatories were neither stockholders nor officers and employees of ISCI.11[11]
Worse, petitioners introduced said documents as evidence before the RTC knowing that they
were falsified.

In a Resolution12[12] dated 24 September 1998, the City Prosecutor found probable cause
for the indictment of petitioners for four (4) counts of the crime of Introducing Falsified
Documents, penalized by the second paragraph of Article 172 of the Revised Penal Code. The

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City Prosecutor concluded that the documents were falsified because the alleged signatories
untruthfully stated that ISCI was the principal of the respondent; that petitioners knew that the
documents were falsified considering that the signatories were mere dummies; and that the
documents formed part of the record of Civil Case No. 754 where they were used by petitioners
as evidence in support of their motion to dismiss, and then adopted in their answer and in their
Pre-Trial Brief.13[13] Subsequently, the corresponding Informations14[14] were filed with the
MTCC, Bago City. The cases were docketed as Criminal Case Nos. 6683, 6684, 6685, and
6686. Thereafter, Judge Primitivo Blanca issued the warrants15[15] for the arrest of the petitioners.

On 1 October 1998, petitioners filed an Omnibus Motion to Quash, Recall Warrants of

Arrest and/or For Reinvestigation.16[16] Petitioners insisted that they were denied due process
because of the non-observance of the proper procedure on preliminary investigation prescribed in
the Rules of Court. Specifically, they claimed that they were not afforded the right to submit
their counter-affidavit. Then they argued that since no such counter-affidavit and supporting
documents were submitted by the petitioners, the trial judge merely relied on the complaint-
affidavit and attachments of the respondent in issuing the warrants of arrest, also in
contravention with the Rules of Court. Petitioners further prayed that the information be
quashed for lack of probable cause. Moreover, one of the accused, i.e., Ben Lim, Jr., is not even
a director of Urban Bank, contrary to what complainant stated. Lastly, petitioners posited that
the criminal cases should have been suspended on the ground that the issue being threshed out in
the civil case is a prejudicial question.

In an Order17[17] dated 13 November 1998, the MTCC denied the omnibus motion
primarily on the ground that preliminary investigation was not available in the instant case –
which fell within the jurisdiction of the first-level court. The court, likewise, upheld the validity
of the warrant of arrest, saying that it was issued in accordance with the Rules of Court. Besides,
the court added, petitioners could no longer question the validity of the warrant since they
already posted bail. The court also believed that the issue involved in the civil case was not a
prejudicial question, and, thus, denied the prayer for suspension of the criminal proceedings.
Lastly, the court was convinced that the Informations contained all the facts necessary to
constitute an offense.

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 Petitioners immediately instituted a special civil action for Certiorari and Prohibition
with Prayer for Writ of Preliminary Injunction and Temporary Restraining Order (TRO) before
the Court of Appeals, ascribing grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of the MTCC in issuing and not recalling the warrants of arrest,
reiterating the arguments in their omnibus motion.18[18] They, likewise, questioned the court’s
conclusion that by posting bail, petitioners already waived their right to assail the validity of the
warrants of arrest.

On 20 June 2000, the Court of Appeals dismissed the petition. 19[19] Thus, petitioners filed
the instant petition for review on certiorari under Rule 45 of the Rules of Court, raising the
following issues:

A.
Where the offense charged in a criminal complaint is not cognizable by
the Regional Trial Court and not covered by the Rule on Summary Procedure, is
the finding of probable cause required for the filing of an Information in court?

If the allegations in the complaint-affidavit do not establish probable

cause, should not the investigating prosecutor dismiss the complaint, or at the
very least, require the respondent to submit his counter-affidavit?

B.
Can a complaint-affidavit containing matters which are not within the
personal knowledge of the complainant be sufficient basis for the finding of
probable cause?

C.
Where there is offense charged in a criminal complaint is not cognizable
by the Regional Trial Court and not covered by the Rule on Summary Procedure,
and the record of the preliminary investigation does not show the existence of
probable cause, should not the judge refuse to issue a warrant of arrest and
dismiss the criminal case, or at the very least, require the accused to submit his
counter-affidavit in order to aid the judge in determining the existence of probable
cause?

D.
Can a criminal prosecution be restrained?

E.
Can this Honorable Court itself determine the existence of probable
cause?20[20]

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 On the other hand, respondent contends that the issues raised by the petitioners had
already become moot and academic when the latter posted bail and were already arraigned.
On 2 August 2000, this Court issued a TRO21[21] enjoining the judge of the MTCC from
proceeding in any manner with Criminal Case Nos. 6683 to 6686, effective during the entire
period that the case is pending before, or until further orders of, this Court.

We will first discuss the issue of mootness.

The issues raised by the petitioners have not been mooted by the fact that they had posted
bail and were already arraigned.

It appears from the records that upon the issuance of the warrant of arrest, petitioners
immediately posted bail as they wanted to avoid embarrassment, being then the officers of Urban
Bank. On the scheduled date for the arraignment, despite the petitioners’ refusal to enter a plea,
the court a quo entered a plea of “Not Guilty” for them.

The erstwhile ruling of this Court was that posting of bail constitutes a waiver of any
irregularity in the issuance of a warrant of arrest, that has already been superseded by Section 26,
Rule 114 of the Revised Rule of Criminal Procedure. The principle that the accused is precluded
from questioning the legality of the arrest after arraignment is true only if he voluntarily enters
his plea and participates during trial, without previously invoking his objections thereto.22[22]

As held in Okabe v. Hon. Gutierrez:23[23]

It bears stressing that Section 26, Rule 114 of the Revised Rules on
Criminal Procedure is a new one, intended to modify previous rulings of this
Court that an application for bail or the admission to bail by the accused shall be
considered as a waiver of his right to assail the warrant issued for his arrest on the
legalities or irregularities thereon. The new rule has reverted to the ruling of this
Court in People v. Red. The new rule is curative in nature because precisely, it
was designed to supply defects and curb evils in procedural rules. Hence, the rules
governing curative statutes are applicable. Curative statutes are by their essence
retroactive in application. Besides, procedural rules as a general rule operate
retroactively, even without express provisions to that effect, to cases pending at
the time of their effectivity, in other words to actions yet undetermined at the time
of their effectivity. Before the appellate court rendered its decision on January 31,
2001, the Revised Rules on Criminal Procedure was already in effect. It behoved

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 the appellate court to have applied the same in resolving the petitioner’s petition
for certiorari and her motion for partial reconsideration.

Moreover, considering the conduct of the petitioner after posting her

personal bail bond, it cannot be argued that she waived her right to question the
finding of probable cause and to assail the warrant of arrest issued against her by
the respondent judge. There must be clear and convincing proof that the petitioner
had an actual intention to relinquish her 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. x x x.

Herein petitioners filed the Omnibus Motion to Quash, Recall Warrants of Arrest and/or
For Reinvestigation on the same day that they posted bail. Their bail bonds likewise expressly
contained a stipulation that they were not waiving their right to question the validity of their
arrest.24[24] On the date of their arraignment, petitioners refused to enter their plea due to the fact
that the issue on the legality of their arrest is still pending with the Court. Thus, when the court
a quo entered a plea of not guilty for them, there was no valid waiver of their right to preclude
them from raising the same with the Court of Appeals or this Court. The posting of bail bond
was a matter of imperative necessity to avert their incarceration; it should not be deemed as a
waiver of their right to assail their arrest. The ruling to which we have returned in People v.
Red25[25] stated:

x x x The present defendants were arrested towards the end of January, 1929, on the
Island and Province of Marinduque by order of the judge of the Court of First Instance of
Lucena, Tayabas, at a time when there were no court sessions being held in Marinduque.
In view of these circumstances and the number of the accused, it may properly be held
that the furnishing of the bond was prompted by the sheer necessity of not remaining in
detention, and in no way implied their waiver of any right, such as the summary
examination of the case before their detention. That they had no intention of waiving this
right is clear from their motion of January 23, 1929, the same day on which they
furnished a bond, and the fact that they renewed this petition on February 23, 1929,
praying for the stay of their arrest for lack of the summary examination; the first motion
being denied by the court on January 24, 1929 (G.R. No. 33708, page 8), and the second
remaining undecided, but with an order to have it presented in Boac, Marinduque.

Therefore, the defendants herein cannot be said to have waived the right granted
to them by section 13, General Order No. 58, as amended by Act No. 3042.

The rest of the issues raised by the petitioners may be grouped into two, which are: (1)
the procedural aspect, i.e., whether the prosecution and the court a quo properly observed the
required procedure in the instant case, and, (2) the substantive aspect, which is whether there was
probable cause to pursue the criminal cases to trial.

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THE PROCEDURAL ASPECT:

Petitioners contend that they were denied due process as they were unable to submit their
counter-affidavits and were not accorded the right to a preliminary investigation. Considering
that the complaint of Atty. Peña was filed in September 1998, the rule then applicable was the
1985 Rules of Criminal Procedure.

The provisions of the 1985 Rules of Criminal Procedure relevant to the issue are Sections
1, 3(a) and 9(a) of Rule 112, to wit:

Section 1. Definition. Preliminary investigation is an inquiry or

proceeding for the purpose of determining whether there is sufficient ground to
engender a well founded belief that a crime cognizable by the Regional Trial
Court has been committed and that the respondent is probably guilty thereof, and
should be held for trial.

Sec. 3. Procedure. Except as provided for in Section 7 hereof, no

complaint or information for an offense cognizable by the Regional Trial Court
shall be filed without a preliminary investigation having been first conducted in
the following manner:

(a) The complaint shall state the known address of the respondent and be
accompanied by affidavits of the complainant and his witnesses as well as other
supporting documents, in such number of copies as there are respondents, plus
two (2) copies for the official file. The said affidavits shall be sworn to before any
fiscal, state prosecutor or government official authorized to administer oath, or, in
their absence or unavailability, a notary public, who must certify that he
personally examined the affiants and that he is satisfied that they voluntarily
executed and understood their affidavits.

Sec. 9. Cases not falling under the original jurisdiction of the Regional
Trial Courts nor covered by the Rule on Summary Procedure.
 
(a) Where filed with the fiscal.— If the complaint is filed directly with the fiscal
or state prosecutor, the procedure outlined in Section 3(a) of this Rule shall be
observed. The fiscal shall take appropriate action based on the affidavits and other
supporting documents submitted by the complainant. (underscoring supplied)

The crime to which petitioners were charged was defined and penalized under second
paragraph of Article 172 in relation to Article 171 of the Revised Penal Code.

Art. 172. Falsification by private individual and use of falsified documents. —

The penalty of prision correccional in its medium and maximum periods and a
fine of not more than P5,000 pesos shall be imposed upon:
 1. Any private individual who shall commit any of the falsifications enumerated
in the next preceding article in any public or official document or letter of
exchange or any other kind of commercial document; and

2. Any person who, to the damage of a third party, or with the intent to cause such
damage, shall in any private document commit any of the acts of falsification
enumerated in the next preceding article.

Any person who shall knowingly introduce in evidence in any judicial proceeding
or to the damage of another or who, with the intent to cause such damage, shall
use any of the false documents embraced in the next preceding article or in any of
the foregoing subdivisions of this article, shall be punished by the penalty next
lower in degree.

Prision correccional in its medium and maximum periods translates to imprisonment of 2

years, 4 months and 1 day.26[26] The next lower in degree to prision correccional is arresto
mayor in its maximum period to prision correccional in its minimum period which translates to
4 months and 1 day to 2 years and 4 months 27[27] of imprisonment. Since the crime committed is
not covered by the Rules of Summary Procedure,28[28] the case falls within the exclusive
jurisdiction of the first level courts but applying the ordinary rules. In such instance, preliminary
investigation as defined in Section 1, Rule 112 of the 1985 Rules of Criminal Procedure is not
applicable since such section covers only crimes cognizable by the RTC. That which is stated in
Section 9(a) is the applicable rule.

Under this Rule, while probable cause should first be determined before an information
may be filed in court, the prosecutor is not mandated to require the respondent to submit his
counter-affidavits to oppose the complaint. In the determination of probable cause, the
prosecutor may solely rely on the complaint, affidavits and other supporting documents
submitted by the complainant. If he does not find probable cause, the prosecutor may dismiss
outright the complaint or if he finds probable cause or sufficient reason to proceed with the case,
he shall issue a resolution and file the corresponding information.

The complaint of respondent, verbatim, is as follows:

COMPLAINT – AFFIDAVIT

I, MAGDALENO M. PEÑA, Filipino, of legal age, with address at Brgy.

Ubay, Pulupandan, Negros Occidental, after having been sworn in accordance
with law hereby depose and state:

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 1. I am the Plaintiff in Civil Case No. 754 pending with the Regional
Trial Court of Bago City entitled “Atty. Magdaleno M. Peña v. Urban Bank, et al”
Impleaded therein as defendants of the board of the bank, namely, Teodoro
Borlongan, Delfin Gonzales, Jr., Benjamin De Leon, P. Siervo Dizon, Eric Lee,
Ben Lim Jr., Corazon Bejasa and Arturo Manuel.(underlining ours)

2. I filed the said case to collect my fees as agent of Urban Bank,

Inc.(hereinafter referred to as the “bank”) in ridding a certain parcel of land in
Pasay City of squatters and intruders. A certified true copy of the Complaint in
the said case is hereto attached as Annex “A”.

3. In the Motion to Dismiss dated 12 March 1996 (a certified true

copy of which is attached as Annex “B”), Answer dated 28 October 1996 (Annex
“C”), and Pre-Trial Brief dated 28 January 1997 (Annex “D”) filed by the bank
and the respondent members of the board, the said respondents used as evidence
the following documents:

a. Letter dated 19 December 1994 supposedly signed by a certain Herman

Ponce and Julie Abad for Isabela Sugar Company (ISC) (a copy of which is
attached as Annex “E”), which states:

December 19, 1994

Urban Bank
Urban Avenue, Makati
Metro Manila

Gentlemen:

This has reference to your property located among Roxas Boulevard, Pasay City
which you purchased from Isabela Sugar Company under a Deed of Absolute Sale
executed on December 1, 1994.

In line with our warranties as the Seller of the said property and our undertaking
to deliver to you the full and actual possession and control of said property, free
from tenants, occupants or squatters and from any obstruction or impediment to
the free use and occupancy of the property and to prevent the former tenants or
occupants from entering or returning to the premises. In view of the transfer of
ownership of the property to Urban Bank, it may be necessary for Urban Bank to
appoint Atty. Peña likewise as its authorized representative for purposes of
holding/maintaining continued possession of the said property and to represent
Urban Bank in any court action that may be instituted for the abovementioned
purposes.

It is understood that any attorney’s fees, cost of litigation and any other charges or
expenses that may be incurred relative to the exercise by Atty. Peña of his
abovementioned duties shall be for the account of Isabela Sugar Company and
any loss or damage that may be incurred to third parties shall be answerable by
Isabela Sugar Company.

Very truly yours,

Isabela Sugar Company

By:
HERMAN PONCE

JULIE ABAD

b. Memorandum dated 7 December 1994 supposedly executed by a certain

Marilyn Ong on behalf of ISC, a copy of which is hereto attached as annex “F”,
which states:

December 7, 1994

To: ATTY. CORA BEJASA

From: MARILYN G. ONG

RE: ISABELA SUGAR CO., INC.

Atty. Magdaleno M. Peña, who has been assigned by Isabela Sugar

Company inc. to take charge of inspecting the tenants would like to request an
authority similar to this from the Bank to new owners. Can you please issue
something like this today as he (unreadable) this.

b. Letter dated 9 December 1994 supposedly executed by the same

Marilyn Ong, a copy of which is hereto attached as Annex “G”, which states:

December 9, 1994

Atty. Ted Borlongan

URBAN BANK OF THE PHILIPPINES
MAKATI, METRO MANILA

Attention: Mr. Ted Borlongan

Dear Mr. Borlongan

I would like to request for an authority from Urban Bank per attached
immediately – as the tenants are questioning authority of the people who are
helping us to take possession of the property.

Marilyn Ong

c. Memorandum dated 20 November 1994, copy of which is attached as

annex “H”, which states:

MEMORANDUM
To: Atty. Magadaleno M. Peña
Director

From: Enrique C. Montilla III

President

Date: 20 November 1994

You are hereby directed to recover and take possession of the property of the
corporation situated at Roxas Boulevard covered by TCT No. 5382 of the
Registry of Deeds for Pasay City, immediately upon the expiration of the contract
of lease over the said property on 29 November 1994. For this purpose, you are
authorized to engage the services of security guards to protect the property against
intruders. You may also engage the services of a lawyer in case there is a need to
go to court to protect the said property of the corporation. In addition, you may
take whatever steps or measures are necessary to ensure our continued possession
of the property.

ENRIQUE C. MONTILLA III

President

4. The respondent member of the board of the bank used and introduced the
aforestated documents as evidence in the civil case knowing that the same are
falsified. They used thae said documents to justify their refusal to pay my
agent’s fees, to my damage and prejudice.

5. The 19 December 1994 letter (Annex ‘E”) is a falsified document, in that the
person who supposedly executed the letter on behalf of ISC, a certain Herman
Ponce and Julie Abad did not actually affix their signatures on the document.
The execution of the letter was merely simulated by making it appear that
Ponce and Abad executed the letter on behalf of ISC when they did not in fact
do so.

6. No persons by the name of Herman Ponce and Julie Abad were ever
stockholders, officers, employees or representatives of ISC. In the letter,
Herman Ponce was represented to be the President of ISC and Julie Abad, the
Corporate Secretary. However, as of 19 December 1994, the real President of
plaintiff was Enrique Montilla, III and Cristina Montilla was the Corporate
Secretary. A copy of the Minutes of the Regular Meeting of ISC for the year
1994, during which Montilla, et al. Were elected is hereto attached as Annex
“I”. On the otherhand, a list of the stockholders of ISC on or about the time of
the transaction is attached as Annex “J”.

7. The same holds true with respect to the Memorandum dated 7 December 1994
and athe letter dated 9 December 1994 allegedly written by a ceratin Marilyn
Ong. Nobody by the said name was ever a stockholder of ISC.

8. Lastly, with respect to the supposed Memorandum issued by Enrique

Montilla, III his signature thereon was merely forged by respondents. Enrique
Montilla III, did not affix his signature on any such document.

9. I am executing this affidavit for the purpose of charging Teodoro C.

Borlongan, Corazon M. Bejasa and Arturo E. Manuel, Delfin C. Gonzales Jr.,
Benjamin L. De Leon, P. Siervo H. Dizon and Eric Lee, with the crime of use
of falsified documents under Artilce 172, paragraph 2, of the Revised Penal
Code.(underlining ours)

10. I am likewise executing this affidavit for whatever legal purpose it may serve.

FURTHER AFFIANT SAYETH NAUGHT.

Sgd. MAGDALENO M. PEÑA

 It is evident that in the affidavit-complaint, specifically in paragraph 1, respondent merely
introduced and identified “the board of the bank, namely, Teodoro Borlongan, Jr., Delfin
Gonzales, Jr., Benjamin De Leon, P. Siervo Dizon, Eric Lee, Ben Lim, Jr., Corazon Bejasa and
Arturo Manuel, Sr.” However, in the accusatory portion of the complaint which is paragraph
number 9, Mr. Ben Lim, Jr. was not included among those charged with the crime of use of
falsified documents under Article 172, paragraph 2, of the Revised Penal Code. The omission
indicates that respondent did not intend to criminally implicate Mr. Ben Lim, Jr., even as he was
acknowledged to be a member of the board. And there was no explanation in the Resolution and
Information by the City Prosecutor why Mr. Ben Lim, Jr. was included. Moreover, as can be
gleaned from the body of the complaint and the specific averments therein, Mr. Ben Lim, Jr. was
never mentioned.

The City Prosecutor should have cautiously reviewed the complaint to determine whether
there were inconsistencies which ought to have been brought to the attention of the respondent
or, on his own, considered for due evaluation. It is a big mistake to bring a man to trial for a
crime he did not commit.

Prosecutors are endowed with ample powers in order that they may properly fulfill their
assigned role in the administration of justice. It should be realized, however, that when a man is
hailed to court on a criminal charge, it brings in its wake problems not only for the accused but
for his family as well. Therefore, it behooves a prosecutor to weigh the evidence carefully and
to deliberate thereon to determine the existence of a prima facie case before filing the
information in court. Anything less would be a dereliction of duty.29[29]

Atty. Peña, in his Second Manifestation30[30] dated 16 June 1999, averred that petitioners,
including Mr. Ben Lim, Jr., were already estopped from raising the fact that Mr. Ben Lim, Jr.
was not a member of the board of directors of Urban Bank, as the latter participated and
appeared through counsel in Civil Case No. 754 without raising any opposition. However, this
does not detract from the fact that the City Prosecutor, as previously discussed, did not carefully
scrutinize the complaint of Atty. Peña, which did not charge Mr. Ben Lim, Jr. of any crime.

What tainted the procedure further was that the Judge issued a warrant for the arrest of
the petitioners, including, Mr. Ben Lim, Jr. despite the filing of the Omnibus Motion to Quash,
Recall Warrants of Arrest and/or For Reinvestigation raising among others the issue that Mr. Ben
Lim, Jr., was not even a member of the board of directors. With the filing of the motion, the

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judge is put on alert that an innocent person may have been included in the complaint. In the
Order31[31] dated 13 November 1998, in denying the motion to quash, Judge Primitivo Blanca
ruled that:

Courts in resolving a motion to quash cannot consider facts contrary to

those alleged in the information or which do not appear on the face of the
information because said motion is hypothethical admission of the facts alleged in
the information x x x. (citations omitted.)

We cannot accept as mere oversight the mistake of respondent judge since it was at the
expense of liberty. This cannot be condoned.

In the issuance of a warrant of arrest, the mandate of the Constitution is for the judge to
personally determine the existence of probable cause:

Section 2, Article III of the Constitution provides:

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

Corollary thereto, Section 9(b) of the 1985 Rules of Criminal Procedure provides:

Sec. 9. Cases not falling under the original jurisdiction of the Regional Trial
Courts nor covered by the Rule on Summary Procedure.

(a) x x x.

(b) Where filed directly with the Municipal Trial Court. — If the complaint or
information is filed directly with the Municipal Trial Court, the procedure
provided for in Section 3(a) of this Rule shall likewise be observed. If the judge
finds no sufficient ground to hold the respondent for trial, he shall dismiss the
complaint or information. Otherwise, he shall issue a warrant of arrest after
personally examining in writing and under oath the complainant and his witnesses
in the form of searching questions and answers.

Enshrined in our Constitution is the rule that “[n]o x x x warrant of arrest shall issue
except upon probable cause to be determined personally by the judge after examination under
oath or affirmation of the complainant and the witnesses he may produce, and particularly
describing x x x the persons x x x to be seized.” 32[32] Interpreting the words “personal
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determination,” we said in Soliven v. Makasiar33[33] that it does not thereby mean that judges are
obliged to conduct the personal examination of the complainant and his witnesses themselves.
To require thus would be to unduly laden them with preliminary examinations and investigations
of criminal complaints instead of concentrating on hearing and deciding cases filed before them.
Rather, what is emphasized merely is the exclusive and personal responsibility of the issuing
judge to satisfy himself as to the existence of probable cause. To this end, he may: (a) personally
evaluate the report and the supporting documents submitted by the prosecutor regarding the
existence of probable cause and, on the basis thereof, issue a warrant of arrest; or (b) if on the
basis thereof he finds no probable cause, disregard the prosecutor's report and require the
submission of supporting affidavits of witnesses to aid him in determining its existence. What he
is never allowed to do is to follow blindly the prosecutor's bare certification as to the
existence of probable cause. Much more is required by the constitutional provision. Judges
have to go over the report, the affidavits, the transcript of stenographic notes if any, and
other documents supporting the prosecutor's certification. Although the extent of the judge's
personal examination depends on the circumstances of each case, to be sure, he cannot just rely
on the bare certification alone but must go beyond it. This is because the warrant of arrest
issues not on the strength of the certification standing alone but because of the records which
sustain it.34[34] He should even call for the complainant and the witnesses to answer the court's
probing questions when the circumstances warrant.35[35]

An arrest without a probable cause is an unreasonable seizure of a person, and violates

the privacy of persons which ought not to be intruded by the State.36[36]

Measured against the constitutional mandate and established rulings, there was here a
clear abdication of the judicial function and a clear indication that the judge blindly followed the
certification of a city prosecutor as to the existence of probable cause for the issuance of a
warrant of arrest with respect to all of the petitioners. The careless inclusion of Mr. Ben Lim, Jr.,
in the warrant of arrest gives flesh to the bone of contention of petitioners that the instant case is
a matter of persecution rather than prosecution.37[37] On this ground, this Court may enjoin the
criminal cases against petitioners. As a general rule, criminal prosecutions cannot be enjoined.
However, there are recognized exceptions which, as summarized in Brocka v. Enrile,38[38] are:

33

34

35

36

37
 a. To afford adequate protection to the constitutional rights of the accused;39[39]

b. When necessary for the orderly administration of justice or to avoid oppression

or multiplicity of actions;40[40]

c. When there is a prejudicial question which is sub judice;41[41]

d. When the acts of the officer are without or in excess of authority;42[42]

e. Where the prosecution is under an invalid law, ordinance or regulation;43[43]

f. When double jeopardy is clearly apparent;44[44]

g. Where the court had no jurisdiction over the offense;45[45]

h. Where it is a case of persecution rather than prosecution;46[46]

i. Where the charges are manifestly false and motivated by the lust for
vengeance;47[47] and

j. When there is clearly no prima facie case against the accused and a motion to
quash on that ground has been denied.48[48]

THE SUBSTANTIVE ASPECT:

Petitioners were charged with violation of par. 2, Article 172 of the Revised Penal Code
or Introduction of Falsified Document in a judicial proceeding. The elements of the offense are
as follows:
1. That the offender knew that a document was falsified by another person.
2. That the false document is embraced in Article 171 or in any subdivisions
Nos. 1 or 2 of Article 172.

38

39

40

41

42

43

44

45

46

47

48
 3. That he introduced said document in evidence in any judicial proceeding. 49
[49]

The falsity of the document and the defendants’ knowledge of its falsity are essential
elements of the offense. The Office of the City Prosecutor filed the Informations against the
petitioners on the basis of the Complaint-Affidavit of respondent Atty. Peña, attached to which
were the documents contained in the Motion to Dismiss filed by the petitioners in Civil Case No.
754. Also included as attachments to the complaint were the Answers, Pre-Trial Brief, the
alleged falsified documents, copy of the regular meetings of ISCI during the election of the
Board of Directors and the list of ISCI Stockholders.50[50] Based on these documents and the
complaint-affidavit of Atty. Peña, the City Prosecutor concluded that probable cause for the
prosecution of the charges existed. On the strength of the same documents, the trial court issued
the warrants of arrest.

This Court, however, cannot find these documents sufficient to support the existence of
probable cause.

Probable cause is such set of facts and circumstances as would lead a reasonably discreet
and prudent man to believe that the offense charged in the Information or any offense included
therein has been committed by the person sought to be arrested. In determining probable cause,
the average man weighs the facts and circumstances without restoring to the calibrations of the
rules of evidence of which he has no technical knowledge. He relies on common sense. A
finding of probable cause needs only to rest on evidence showing that, more likely than not, a
crime has been committed and that it was committed by the accused. Probable cause demands
more than suspicion; it requires less than evidence that would justify conviction.51[51]

As enunciated in Baltazar v. People,52[52] 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.

49

50

51

52
 The purpose of the mandate of the judge to first determine probable cause for the arrest of
the accused is to insulate from the very start those falsely charged with crimes from the
tribulations, expenses and anxiety of a public trial.53[53]

We do not see how it can be concluded that the documents mentioned by respondent in
his complaint-affidavit were falsified. In his complaint, Atty. Peña stated that Herman Ponce,
Julie Abad and Marilyn Ong, the alleged signatories of the questioned letters, did not actually
affix their signatures therein; and that they were not actually officers or stockholders of ISCI. 54[54]
He further claimed that Enrique Montilla’s signature appearing in another memorandum
addressed to respondent was forged.55[55] These averments are mere assertions which are
insufficient to warrant the filing of the complaint or worse the issuance of warrants of arrest.
These averments cannot be considered as proceeding from the personal knowledge of herein
respondent who failed to, basically, allege that he was present at the time of the execution of the
documents. Neither was there any mention in the complaint-affidavit that herein respondent was
familiar with the signatures of the mentioned signatories to be able to conclude that they were
forged. What Atty. Peña actually stated were but sweeping assertions that the signatories are
mere dummies of ISCI and that they are not in fact officers, stockholders or representatives of
the corporation. Again, there is no indication that the assertion was based on the personal
knowledge of the affiant.

The reason for the requirement that affidavits must be based on personal knowledge is to
guard against hearsay evidence. A witness, therefore, may not testify as what he merely learned
from others either because he was told or read or heard the same. Such testimony is considered
hearsay and may not be received as proof of the truth of what he has learned. 56[56] Hearsay is not
limited to oral testimony or statements; the general rule that excludes hearsay as evidence applies
to written, as well as oral statements.57[57]

The requirement of personal knowledge should have been strictly applied considering
that herein petitioners were not given the opportunity to rebut the complainant’s allegation
through counter-affidavits.

53

54

55

56

57
 Quite noticeable is the fact that in the letter dated 19 December 1994 of Herman Ponce
and Julie Abad, neither of the two made the representation that they were the president or
secretary of ISCI. It was only Atty. Peña who asserted that the two made such representation.
He alleged that Marilyn Ong was never a stockholder of ISCI but he did not present the stock
and transfer book of ISCI. And, there was neither allegation nor proof that Marilyn Ong was not
connected to ISCI in any other way. Moreover, even if Marilyn Ong was not a stockholder of
ISCI, such would not prove that the documents she signed were falsified.

The Court may not be compelled to pass upon the correctness of the exercise of the
public prosecutor’s function without any showing of grave abuse of discretion or manifest error
in his findings.58[58] Considering, however, that the prosecution and the court a quo committed
manifest errors in their findings of probable cause, this Court therefore annuls their findings.

Our pronouncement in Jimenez v. Jimenez59[59] as reiterated in Baltazar v. People is

apropos:

It is x x x imperative upon the fiscal or the judge as the case may be, to relieve the
accused from the pain of going through a trial once it is ascertained that the
evidence is insufficient to sustain a prima facie case or that no probable cause
exists to form a sufficient belief as to the guilt of the accused. Although there is
no general formula or fixed rule for the determination of probable cause since the
same must be decided in the light of the conditions obtaining in given situations
and its existence depends to a large degree upon the finding or opinion of the
judge conducting the examination, such a finding should not disregard the facts
before the judge nor run counter to the clear dictates of reasons. The judge or
fiscal, therefore, should not go on with the prosecution in the hope that some
credible evidence might later turn up during trial for this would be a flagrant
violation of a basic right which the courts are created to uphold. It bears repeating
that the judiciary lives up to its mission by visualizing and not denigrating
constitutional rights. So it has been before. It should continue to be so.

On the foregoing discussion, we find that the Court of Appeals erred in affirming the
findings of the prosecutor as well as the court a quo as to the existence of probable cause. The
criminal complaint against the petitioners should be dismissed.

WHEREFORE, the petition is hereby GRANTED. The Decision of the Court of

Appeals dated 20 June 2000, in CA-G.R. SP No. 49666, is REVERSED and SET ASIDE. The
Temporary Restraining Order dated 2 August 2000 is hereby made permanent. Accordingly, the
Municipal Trial Court in Cities, Negros Occidental, Bago City, is hereby DIRECTED to
DISMISS Criminal Case Nos. 6683, 6684, 6685 and 6686.

58

59
 SO ORDERED
THIRD DIVISION

[G.R. No. 175162, October 29, 2008]

ATTY. ERNESTO A. TABUJARA III AND CHRISTINE S. DAYRIT, PETITIONERS,

VS. PEOPLE OF THE PHILIPPINES AND DAISY AFABLE, RESPONDENTS.

DECISION

CHICO-NAZARIO, J.:

This petition assails the 24 February 2004 Decision of the Court of Appeals in CA-G.R. SP No.
63280 denying petitioners' petition for review and directing the Municipal Trial Court of
Meycauayan, Bulacan, Branch 11, to proceed with the trial of Criminal Cases Nos. 99-29037 and
99-29038, as well as the 23 October 2006 Resolution denying the motion for reconsideration.

The antecedent facts are as follows:

On 17 September 1999, respondent Daisy Dadivas-Afable simultaneously filed two criminal

complaints against petitioners for Grave Coercion and Trespass to Dwelling. The complaints
read, thus:
Art. 286 (Grave Coercion)

That on the 14th day of September 1999 at around 6:00 o'clock in the morning more or less, in
Brgy. Iba, Municipality of Meycauayan, Province of Bulacan, Republic of the Philippines and
within the jurisdiction of this Honorable Court, the above-named accused without authority of
law, by conspiring, confederating and mutually helping to (sic) one another, did then and there
willfully, unlawfully and feloniously forced to go with them one DAISY DADIVAS-AFABLE
and against the latter's will.

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

That on the 14th day of September 1999 at around 6:00 o'clock in the morning more or less, in
Brgy. Iba, Municipality of Meycauayan, Province of Bulacan, Republic of the Philippines and
within the jurisdiction of this Honorable Court, the above-named accused being then a (sic)
private persons, by conspiring, confederating and mutually helping to (sic) one another, did then
and there willfully, unlawfully and feloniously enter the house owned by one DAISY
DADIVAS-AFABLE by opened the gate and against the latter's will.[1]
On 18 October 1999, petitioners filed their Joint Counter-Affidavit. [2] Thereafter, or on 21
December 1999, petitioner Tabujara filed a Supplemental Counter-Affidavit.[3]

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

Judge Calixtro O. Adriatico of the Municipal Trial Court of Meycauayan, Bulacan, Branch II,
conducted the preliminary examination. On 7 January 2000, he issued an Order dismissing the
complaints for lack of probable cause, thus:
After a careful perusal of the allegation setforth in the complaint-affidavit, taking into
consideration the allegation likewise setforth in the counter-affidavit submitted by the
respondents and that of their witnesses, the Court finds no probable cause to proceed with trial
on the merits of the above-entitled cases.
The Court believes and so holds that the instant complaints are merely leverage to the estafa [4]
case already filed against private complainant herein Daisy Afable by the Miladay Jewels Inc.
wherein respondent Atty. Tabujara III is its legal counsel; while respondent Dayrit appears to be
one of the officers of the said company.

As could be gleaned from the record, private complainant herein Daisy Afable is being charged
with the aforestated estafa case for having allegedly embezzled several pieces of jewelry from
the Miladay Jewels Inc., worth P2,177,156.00.

WHEREFORE, let these cases be dismissed for lack of probable cause.[5]

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

In their Opposition to the Motion for Reconsideration, petitioners argued that even before
respondent filed the criminal complaints for grave coercion and trespass to dwelling, she was
already being administratively investigated for the missing jewelries; that she was ordered
preventively suspended pending said investigation; that the theft of the Miladay jewels was
reported to the Makati Police on 7 September 1999 with respondent Afable being named as the
primary suspect; that on 17 September 1999, which corresponded to the date of filing of the
criminal complaints against petitioners, the employment of respondent with Miladay, Jewels,
Inc. was terminated. Petitioners further alleged that respondent filed the criminal complaints for
grave coercion and trespass to dwelling as leverage to compel petitioners to withdraw the estafa
case.

On 2 May 2000, Judge Adriatico issued an Order reversing his earlier findings of lack of
probable cause. This time, he found probable cause to hold petitioners for trial and to issue
warrants of arrest, thus:
Acting on the "Motion for Reconsideration" filed by the private complainant herein on January
17, 2000, with "Opposition..." filed by the accused on January 27, 2000, taking into
consideration the "Manifestation/Brief Memorandum" filed by the said private complainant on
March 4, 2000, the Court found cogent reason to reconsider its order dated January 7, 2000.

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

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

WHEREFORE, in order to ferret out the truth/veracity of the complainant's allegation and in
order not to frustrate the ends of justice, let the above-entitled cases now be set for trial.

Let therefore warrant of arrest be issued against all the accused in Criminal Case No. 99-29038
(Grave Coercions), fixing their bail for their provisional liberty in the amount of P12,000.00 for
each of them.

As regard Criminal Case No. 99-29037 (Trespass to Dwelling) the same shall be governed by the
Rules on Summary Procedure.[6]
Petitioners filed a motion for reconsideration insisting that the alleged affidavit of Mauro V. de
Lara on which the court a quo based its findings of probable cause was hearsay because it was
not sworn before Judge Adriatico; that De Lara did not personally appear before the investigating
judge during preliminary investigation. However, petitioners' motion for reconsideration was
denied in the Order dated 14 July 2000, thus:
Acting on the "Motion for Reconsideration" filed by the accused, thru counsel. With comment
from the counsel of the private complainant, the Court resolves to deny the same there being no
cogent reason to reconsider the Court order dated May 2, 2000.

The Court has resolved to try the above-entitled cases on the merits so as to ferret out the truth of
the private complainant's allegations and there being probable cause to warrant criminal
prosecution of the same.

The accused's contention that the statement of witness Mauro de Lara is bereft of credibility and
that the complaints at bar were initiated merely for harassment purposes could be ventilated well
in a full blown trial.

WHEREFORE, in view of the foregoing reason, let the trial of these cases proceed as already
scheduled.[7]
Petitioners moved for clarificatory hearings which were conducted on 23 August 2000 and 31
August 2000. However, before the court a quo could render a resolution based on said
clarificatory hearings, petitioners filed on 15 September 2000 a petition for certiorari before the
Regional Trial Court with prayer for issuance of temporary restraining order and writ of
preliminary injunction.[8] Petitioners sought to annul the 2 May 2000 and 14 July 2000 Orders of
the court a quo for having been issued with grave abuse of discretion. Petitioners argued that the
court a quo gravely abused its discretion in issuing said Orders finding probable cause and
ordering the issuance of warrants of arrest based solely on the unsworn statement of Mauro V. de
Lara who never appeared during preliminary investigation and who was not personally examined
by the investigating judge.

On 18 September 2000, Executive Judge Danilo A. Manalastas of the Regional Trial Court of
Malolos, Bulacan, Branch 7, issued an Order[9] granting a 72-hour temporary restraining order
and enjoining the Municipal Trial Court from proceeding with the prosecution of petitioners in
Criminal Case Nos. 99-29037 and 99-29038.

The case was thereafter raffled to Branch 79 which rendered its Decision [10] denying the petition
for annulment of the 2 May 2000 and 14 July 2000 Orders of the Municipal Trial Court. The
Regional Trial Court found that after conducting clarificatory hearings, the court a quo issued an
Order on 18 September 2000, finding probable cause. The Regional Trial Court further ruled that
any defect in the issuance of the 2 May 2000 and 14 July 2000 Orders finding probable cause
based solely on the unsworn statement of Mauro V. de Lara who failed to appear during the
preliminary examination and who was not personally examined by the investigating judge, was
cured by the issuance of the 18 September 2000 Order. The Regional Trial Court reasoned, thus:
While it is true that respondent Judge Hon. Calixto O. Adriatico dismisses both criminal cases
last January 7, 2000 finding no probable cause and later on reverse himself by issuing the
question Order dated May 2, 2000 alleging among others that said Judge inadvertently
overlooked the statement of witness Mauro V. De Lara, the stubborn facts remain that whatever
defects, or shortcomings on the parts of the respondent Judge was cured when he conducted
clarificatory examination on the dates earlier mentioned in this Order.[11]
The dispositive portion of the Decision of the Regional Trial Court, reads:
RESPONSIVE OF ALL THE FOREGOING, the instant Petition for the Annulment of the
Orders of the respondent Judge dated May 2, 2000 and July 14, 2000 in criminal cases nos. 99-
29037 and 99-29038 (MTC-Meycauayan, Branch 2) should be as it is hereby denied for lack of
merit.

ACCORDINGLY, the Presiding Judge of branch II, the Hon. Calixto O. Adriatico may now
proceed to hear and decide crim. Cases nos. 99-29037 and 99-29038 pending before that Court.
[12]

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

However, the Court of Appeals denied the petition on the ground that petitioners resorted to the
wrong mode of appeal; i.e., instead of an ordinary appeal, petitioners filed a petition for review.
[13]
The dispositive portion of the Decision of the Court of Appeals, reads:
WHEREFORE, in view of the foregoing, the instant Petition for Review is hereby DENIED. The
Municipal Trial Court of Meycauayan, Bulacan, Branch II is directed to proceed with the trial of
Criminal Case Nos. 99-29037 and 99-29038 and to dispose of them with deliberate dispatch.[14]
Petitioners filed a motion for reconsideration but it was denied. [15] Hence, the instant petition
raising the following assignment of errors:
I.

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

A. THE CONSTITUTION GUARANTEES THAT NO WARRANT OF ARREST SHALL

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

II.

PETITIONERS ASSERT THEIR RIGHT GUARANTEED BY THE CONSTITUTION WHICH

TAKES PRECEDENCE OVER RULES OF PROCEDURE OR TECHNICALITIES.
A. IT IS WELL-SETTLED THAT THIS HONORABLE COURT IS BOUND BY THE
ALLEGATIONS IN THE PETITION AND NOT BY ITS CAPTION.[16]
Petitioners insist that the Orders of the court a quo dated 2 May 2000 and 14 July 2000 should be
annulled for having been issued with grave abuse of discretion because the finding of probable
cause was based solely on the unsworn statement of Mauro De Lara who never appeared during
the preliminary examination. Petitioners also allege that since De Lara never appeared before the
investigating judge, his statement was hearsay and cannot be used as basis for finding probable
cause for the issuance of warrant of arrest or to hold petitioners liable for trial. Granting that the
statement of De Lara was subscribed before "Judge Paguio," the same cannot be used as basis
because the law requires that the statement be sworn to before the investigating judge and no
other.

In its Comment, respondent People of the Philippines argue that the Court of Appeals correctly
dismissed petitioners' petition because they resorted to the wrong mode of appeal.

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

The petition is meritorious.

Before proceeding to the substantive issues, we first address the issue of whether or not the Court
of Appeals properly denied the petition for review filed by the petitioners under Rule 42 of the
Rules of Court.

In denying the petition for review under Section 1,[17] Rule 42 of the 1997 Rules of Court filed by
petitioners, the appellate court stressed that they availed of the wrong mode of review in bringing
the case to it since the petitioners filed an original action under Rule 65 of the Rules of Court to
the RTC, the remedy availed of should have been an appeal under Section 2(a) of Rule 41 of the
Rules of Court:
SEC. 2. Modes of appeal. -

(a) Ordinary appeal. - The appeal to the Court of Appeals in cases decided by the Regional Trial
Court in the exercise of its original jurisdiction shall be taken by filing a notice of appeal with
the court which rendered the judgment or final order appealed from and serving a copy thereof
upon the adverse party. No record on appeal shall be required except in special proceedings and
other cases of multiple or separate appeals where the law or these Rules so require. In such cases,
the record on appeal shall be filed and served in like manner. (Emphasis supplied.)
It is only when the decision of the RTC was rendered in the exercise of appellate jurisdiction
would a petition for review under Rule 42 be proper[18]

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

The present controversy involved petitioners' sacrosanct right to liberty, which is protected by
the Constitution. No person should be deprived of life, liberty, or property without due process of
law.[19]

While it is true that rules of procedure are intended to promote rather than frustrate the ends of
justice, and while the swift unclogging of the dockets of the courts is a laudable objective, it
nevertheless must not be met at the expense of substantial justice. [20]

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

In those rare cases to which we did not stringently apply the procedural rules, there always
existed a clear need to prevent the commission of a grave injustice. Our judicial system and the
courts have always tried to maintain a healthy balance between the strict enforcement of
procedural laws and the guarantee that every litigant is given the full opportunity for a just and
proper disposition of his cause.[22]

The emerging trend in the rulings of this Court is to afford every party litigant the amplest
opportunity for the proper and just determination of his cause, free from the constraints of
technicalities. Time and again, we have consistently held that rules must not be applied so rigidly
as to override substantial justice.[23]

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

We now proceed to the resolution of the substantive issues raised by the petitioners.
Section 2, Article III, of the 1987 Constitution, provides:
SEC. 2. The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable,
and no search warrant or warrant of arrest shall issue except upon probable cause to be
determined personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized.
It is constitutionally mandated that a warrant of arrest shall issue only upon finding of probable
cause personally determined by the judge after examination under oath or affirmation of the
complainant and the witnesses he/she may produce, and particularly describing the person to be
seized.

To determine the existence of probable cause, a preliminary investigation is conducted. A

preliminary investigation is an inquiry or proceeding to determine whether there is sufficient
ground to engender a well-founded belief that a crime has been committed and the respondent is
probably guilty thereof, and should be held for trial. [24]

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

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

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

x x x x

(b) If filed with the Municipal Trial Court. - If the complaint or information is filed with the
Municipal Trial Court or Municipal Circuit Trial Court for an offense covered by this section, the
procedure in section 3(a) of this Rule shall be observed. If within ten (10) days after the filing of
the complaint or information, the judge finds no probable cause after personally evaluating the
evidence, or after personally examining in writing and under oath the complainant and his
witnesses in the form of searching questions and answers, he shall dismiss the same. He may,
however, require the submission of additional evidence, within ten (10) days from notice, to
determine further the existence of probable cause. If the judge still finds no probable cause
despite the additional evidence, he shall, within ten (10) days from its submission or expiration
of said period, dismiss the case. When he finds probable cause, he shall issue a warrant of
arrest or a commitment order if the accused had already been arrested, and hold him for
trial. However, if the judge is satisfied that there is no necessity for placing the accused
under custody, he may issue summons instead of a warrant of arrest. (Emphasis supplied.)
Corollarily, Section 6 of the same Rule provides:
SEC. 6. When warrant of arrest may issue. - x x x

(b) By the Municipal Trial Court. - x x x [T]he judge may issue a warrant of arrest if he finds
after an examination in writing and under oath of the complainant and his witnesses in the form
of searching questions and answers, that a probable cause exists and that there is a necessity of
placing the respondent under immediate custody in order not to frustrate the ends of justice.
Clearly, Judge Adriatico gravely abused his discretion in issuing the assailed 2 May 2000 and 14
July 2000 Orders finding probable cause to hold petitioners liable for trial and to issue warrants
of arrest because it was based solely on the statement of witness Mauro De Lara whom Judge
Adriatico did not personally examine in writing and under oath; neither did he propound
searching questions. He merely stated in the assailed 2 May 2000 Order that he overlooked the
said statement of De Lara; nevertheless, without conducting a personal examination on said
witness or propounding searching questions, Judge Adriatico still found De Lara's allegations
sufficient to establish probable cause. Plainly, this falls short of the requirements imposed by no
less than the Constitution.

In Sangguniang Bayan of Batac v. Judge Albano,[26] the Court found respondent judge guilty of
ignorance of the law because he failed to comply with the procedure on the issuance of warrant
of arrest, thus:
Failure to comply with such procedure will make him administratively liable. In the case at bar,
respondent judge issued several warrants of arrest without examining the complainant and
his witnesses in writing and under oath, in violation of Section 6 of Rule 112 which provides:
Sec. 6. When warrant of arrest may issue. - x x x

(b) By the Municipal Trial Court. - If the municipal trial judge conducting the preliminary
investigation is satisfied after an examination in writing and under oath of the complainant and
his witnesses in the form of searching questions and answers, that a probable cause exists and
that there is a necessity of placing the respondent under immediate custody in order not to
frustrate the ends of justice, he shall issue a warrant of arrest.
The records show that respondent judge has violated the rules on preliminary investigation and
issuance of a warrant of arrest since the start of his term as municipal judge in Batac, Ilocos
Norte in September 1991. The gross ignorance of respondent judge has immensely prejudiced
the administration of justice. Parties adversely affected by his rulings dismissing their complaints
after preliminary investigation have been denied their statutory right of review that should have
been conducted by the provincial prosecutor. His practice of issuing warrants of arrest
without examining the complainants and their witnesses is improvident and could have
necessarily deprived the accused of their liberty however momentary it may be. Our
Constitution requires that all members of the judiciary must be of proven competence, integrity,
probity and independence. Respondent judge's stubborn adherence to improper procedures and
his constant violation of the constitutional provision requiring him to personally examine
the complainant and the witness in writing and under oath before issuing a warrant of
arrest makes him unfit to discharge the functions of a judge.
When the investigating judge relied solely on the affidavit of witness De Lara which was not
sworn to before him and whom he failed to examine in the form of searching questions and
answers, he deprived petitioners of the opportunity to test the veracity of the allegations
contained therein. Worse, petitioners' arguments that De Lara's affidavit was hearsay was
disregarded by the investigating judge despite the fact that the allegations therein were
completely rebutted by petitioners' and their witnesses' affidavits, all of whom appeared before
and were personally examined by the investigating judge. It was thus incorrect for the court a
quo to rule thus:
The accused's contention that the statement of witness Mauro de Lara is bereft of credibility and
that the complaints at bar were initiated merely for harassment purposes could be ventilated well
in a full blown trial.[27]
In sum, De Lara's affidavit cannot be relied upon by the court a quo for its finding of probable
cause.

In addition, this Court finds that the warrants of arrest were precipitously issued against
petitioners. Deprivation of a citizen's liberty through the coercive process of a warrant of arrest is
not a matter which courts should deal with casually. Any wanton disregard of the carefully-
wrought out processes established pursuant to the Constitution's provisions on search warrants
and warrants of arrest is a serious matter primarily because its effects on the individual wrongly-
detained are virtually irremediable.[28]

The procedure described in Section 6 of Rule 112 is mandatory because failure to follow the
same would amount to a denial of due process. With respect to the issuance by inferior courts of
warrants of arrest, it is necessary that the judge be satisfied that probable cause exists: 1) through
an examination under oath and in writing of the complainant and his witnesses; which
examination should be 2) in the form of searching questions and answers. This rule is not merely
a procedural but a substantive rule because it gives flesh to two of the most sacrosanct guarantees
found in the fundamental law: the guarantee against unreasonable searches and seizures and the
due process requirement.[29]

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

Respondent's contention that any defect in the 2 May 2000 and 14 July 2000 Orders of the court
a quo has been cured by its 18 September 2000 Order is flawed. It will be recalled that on 15
September 2000, petitioners filed a petition for certiorari before the Regional Trial Court of
Meycauayan, Bulacan. On 18 September 2000, Executive Judge Manalastas issued a temporary
restraining order enjoining the court a quo from conducting further proceedings in Criminal
Cases Nos. 99-29037 and 99-29038. However, in contravention of said restraining order, the
court a quo issued its Order on even date, i.e., 18 September 2000, finding probable cause
against petitioners holding them liable for trial and ordering the issuance of warrants of arrest.
Considering that the court a quo's 18 September 2000 Order was issued during the effectivity of
the temporary restraining order, the same is considered of no effect.

WHEREFORE, the petition is GRANTED. The assailed 24 February 2004 Decision of the
Court of Appeals in CA-G.R. SP No. 63280 denying petitioners' petition for review and directing
the Municipal Trial Court of Meycauayan, Bulacan, Branch 11, to proceed with the trial of
Criminal Cases Nos. 99-29037 and 99-29038, as well as the 23 October 2006 Resolution denying
the motion for reconsideration, are REVERSED and SET ASIDE. The Municipal Trial Court of
Meycauayan, Bulacan, Branch 11, is DIRECTED to dismiss Criminal Cases Nos. 99-29037 and
99-29038 for lack of probable cause and to quash the warrants of arrest against petitioners for
having been irregularly and precipitously issued.

SO ORDERED.

Ynares-Santiago, (Chairperson), Carpio,* Azcuna,** and Nachura, JJ., concur.

*
Per Special Order No. 531, dated 20 October 2008, signed by Acting Chief Justice Leonardo A.
Quisumbing, designating Associate Justice Antonio T. Carpio to replace Associate Justice Ma.
Alicia Austria-Martinez, who is on leave.
**
Per Special Order No. 521, dated 29 September 2008, signed by Chief Justice Reynato S.
Puno, designating Associate Justice Adolfo S. Azcuna to replace Associate Justice Ruben T.
Reyes, who is on official leave.
[1]
Rollo, pp. 30-31.
[2]
Id. at 35-39.
[3]
Id. at 64-66.
[4]
Entitled People of the Philippines v. Daisy Afable. Respondent was charged for Estafa. In an
Information dated 18 November1999 docketed as Criminal Case No. 00-078. (Rollo, p. 90.) A
warrant for the arrest of private respondent dated 24 January 2000 was issued by the RTC of
Makati. (Rollo, p. 92.) On 25 March 2003, the RTC Branch 142 Makati rendered a decision
finding respondent guilty beyond reasonable doubt of the crime of Estafa. (CA rollo, p. 237.)
This conviction was affirmed in the decision of the Court of Appeals dated 27 March 2007 in
CA-G.R. CR No. 27515. Respondent elevated the case to this Court (G.R. No. 181047) but her
petition was denied in this Court's resolution dated 24 March 2008.

Respondent also filed a Complaint for Illegal dismissal against Miladay Jewels Inc represented
by its president Michelle Dayrit Soliven docketed as NLRC NCR Case No. 30-12-00756-99
which the labor arbiter decided on 13 October 2000. (CA rollo p. 260.) The records are silent as
to the status of this case. Respondent filed two additional cases for Grave coercion and grave
threats against petitioner Tabujara and the other Dayrit sisters, Michelle and Yvonne before the
Makati City Prosecutors office which was dismissed by resolution of the Prosecutor's Office on
20 July 2000. (CA rollo, p. 244.)
[5]
Rollo, p. 77.
[6]
Id. at 94.
[7]
Id. at 107.
[8]
Id. at 108-120.
[9]
Id. at 121-122; penned by Judge Danilo A. Manalastas.
[10]
Id. at 127-145; penned by Judge Arturo G. Tayag.
[11]
Id. at 144.
[12]
Id. at 145.
[13]
Id. at 147-157. Penned by Associate Justice Jose C. Reyes, Jr. with Associate Justices Romeo
A. Brawner and Rebecca De Guia-Salvador, concurring.
[14]
Id. at 157.
[15]
Id. at 176-178. Penned by Associate Justice Regalado E. Maambong with Associate Justices
Marina L. Buzon and Japar B. Dimaampao, concurring.
[16]
Id. at 17-18.
[17]
SECTION 1. How appeal taken; time for filing. - A party desiring to appeal from a decision
of the Regional Trial Court rendered in the exercise of its appellate jurisdiction may file a
verified petition for review with the Court of Appeals, paying at the same time to the clerk of
said court the corresponding docket and other lawful fees, depositing the amount of P500.00 for
costs, and furnishing the Regional Trial Court and the adverse party with a copy of the petition.
The petition shall be filed and served within fifteen (15) days from notice of the decision sought
to be reviewed or of the denial of petitioner's motion for new trial or reconsideration filed in due
time after judgment. Upon proper motion and the payment of the full amount of the docket and
other lawful fees and the deposit for costs before the expiration of the reglementary period, the
Court of Appeals may grant an additional period of fifteen (15) days only within which to file the
petition for review. No further extension shall be granted except for the most compelling reason
and in no case to exceed fifteen (15) days.
[18]
De Liano v. Court of Appeals, 421 Phil. 1033, 1049-1050 (2001).
[19]
PHILIPPINE CONSTITUTION, Article III, Section 1; Macasasa v. Sicad, G.R. No. 146547,
20 June 2006, 491 SCRA 368, 383.
[20]
Wack Wack Golf and Country Club v. National Labor Relations Commission, G.R. 149793,
15 April 2005, 456 SCRA 280, 294.
[21]
Id.
[22]
Neypes v. Court of Appeals, G.R. No. 141524, 14 September 2005, 469 SCRA 633, 643.
[23]
Peñoso v. Dona, G.R. No. 154018, 3 April 2007, 520 SCRA 232, 240-241.
[24]
RULES OF COURT, Rule 112, Sec. 1.
[25]
Id.
[26]
329 Phil. 363, 374-375 (1996).
[27]
Rollo, p. 107.
[28]
Cabilao v. Judge Sardido, 316 Phil. 134, 141 (1995).
[29]
Id. at 142.
[30]
Bagunas v. Judge Fabillar, 352 Phil. 206, 221 (1998).

EN BANC

[G.R. No. 113930. March 5, 1996]

PAUL G. ROBERTS, JR., RODOLFO C. SALAZAR, LUIS LORENZO,

SR., LUIS LORENZO, JR., AMAURY R. GUTIERREZ, BAYANI N.
FABIC, JOSE YULO, JR., ESTEBAN B. PALANNUAYAN, and
WONG FONG FUI, petitioners, vs. THE COURT OF APPEALS,
THE HON. MAXIMIANO ASUNCION, in his capacity as the
Presiding Judge of the Regional Trial Court, Quezon City,
Branch 104, HON. APOLINARIO G. EXEVEA, HON. HENRICK F.
GINGOYON, and HON. PHILIP A. AGUINALDO, in their capacities
as Members of the Department of Judge “349” Committee, and
the CITY PROSECUTOR OF QUEZON CITY, respondents.
ROBERTO DELGADO, petitioner-intervenor.

DECISION
DAVIDE, JR., J.:

We are urged in this petition to set aside (a) the decision of the Court of Appeals of
28 September 1993 in CA-G.R. SP No. 31226, i which dismissed the petition therein on
[1]

the ground that it has been “mooted with the release by the Department of Justice of its
decision x x x dismissing petitioners’ petition for review”; (b) the resolution of the said
court of 9 February 1994 ii denying the petitioners’ motion to reconsider the decision; (c)
[2]

the order of 17 May 1993 iii of respondent Judge Maximiano C. Asuncion of Branch 104
[3]
of the Regional Trial Court (RTC) of Quezon City in Criminal Case No. Q-93-43198
denying petitioners’ motion to suspend proceedings and to hold in abeyance the
issuance of the warrants of arrest and the public prosecutor’s motion to defer
arraignment; and (d) the resolution of 23 July 1993 and 3 February 1994 iv of the [4]

Department of Justice, (DOJ) dismissing petitioners’ petition for the review of the Joint
Resolution of the Assistant City Prosecutor of Quezon City and denying the motion to
reconsider the dismissal, respectively.
The petitioners rely on the following grounds for the grant of the reliefs prayed for in
this petition:
I
Respondent Judge acted with grave abuse of discretion when he ordered the
arrest of the petitioners without examining the record of the preliminary investigation
and in determining for himself on the basis thereof the existence of probable cause.
II
The Department of Justice “349” Committee acted with grave abuse of discretion
when it refused to review the City Prosecutor’s Joint Resolution and dismissed
petitioner’s appeal therefrom.
III
The Court of Appeals acted with grave abuse of discretion when it upheld the
subject order directing the issuance of the warrants of arrest without assessing for itself
whether based on such records there is probable cause against petitioners.
IV
The facts on record do not establish prima facie probable cause and Criminal
Case No. Q-93-43198 should have been dismissed.v[5]
The antecedents of this petition are not disputed.
Several thousand holdersvi of “349” Pepsi crowns in connection with the Pepsi Cola
[6]

Products Phils., Inc.’s (PEPSI’s) Number Fever Promotion vii filed with the Office of the
[7]

City Prosecutor of Quezon City complaints against the petitioners in their respective
capacities as Presidents or Chief Executive Officers, Chairman of the Board, Vice-
Chairman of the Board, and Directors of PEPSI, and also against other officials of
PEPSI. The complaints respectively accuse the petitioners and the other PEPSI officials
of the following crimes: (a) estafa; (b) violation of R.A. No. 7394, otherwise known as
the Consumer Act of the Philippines; (c) violation of E.O. No. 913; viii and (d) violation of
[8]

Act No. 2333, entitled “An Act Relative to Untrue, Deceptive and Misleading
Advertisements,” as amended by Act No. 3740.ix [9]

After appropriate proceedings, the investigating prosecutor, Ramon M. Gerona,

released on 23 March 1993 a Joint Resolution x where he recommended the filing of an
[10]

information against the petitioners and others for the violation of Article 3 18 of the
Revised Penal Code and the dismissal of the complaints for the violation of Article 315,
2(d) of the Revised Penal Code; R.A. No. 7394; Act No. 2333, as amended by Act No.
3740; and E.O. No. 913. The dispositive portion thereof reads as follows:
In view of all the foregoing, it is recommended that:
1. The attached information be filed against respondents Paul G. Roberts, Jr., Rodolfo
C. Salazar, Rosemarie R. Vera, Luis F. Lorenzo, Sr., Luis P. Lorenzo, Jr., J.
Roberto Delgado, Amaury R. Gutierrez, Bayani N. Fabic, Jose Yulo, Jr., Esteban B.
Pacannuayan, Jr., Wong Fong Fui, Quintin J. Gomez, Jr. and Chito V. Gutierrez for
estafa under Article 318, Revised Penal Code, while the complaint for violation of
Article 315, 2(d), Revised Penal Code against same respondents Juanito R. Ignacio,
R. Sobong, R.O. Sinsuan, M.P. Zarsadias, L.G. Dabao, Jr., R.L. Domingo, N.N.
Bacsal, Jesus M. Manalastas, Janette P. Pio de Roda, Joaquin W. Sampaico,
Winefreda 0. Madarang, Jack Gravey, Les G. Ham, Corazon Pineda, Edward S.
Serapio, Alex 0. Caballes, Sandy Sytangco, Jorge W. Drysdale, Richard Blossom,
 Pablo de Borja, Edmundo L. Tan, Joseph T. Cohen, Delfin Dator, Zosimo B. San
Juan, Joaquin Franco, Primitivo S. Javier, Jr., Luisito Guevarra, Asif H. Adil,
Eugenio Muniosguren, James Ditkoff and Timothy Lane be dismissed;
2. The complaints against all respondents for violation of R.A. 7394 otherwise known
as the Consumer Act of the Philippines and violation of Act 2333 as amended by Act
3740 and E 0. 913 be also dismissed for insufficiency of evidence, and
3. I.S. Nos. 92-7833; 92-8710 and 92-P-1065 involving Crowns Nos. 173; 401; and
117, 425, 703 and 373, respectively, alleged to be likewise winning ones be further
investigated to afford respondents a chance to submit their counter-evidence.xi[11]
On 6 April 1993, City Prosecutor Candido V. Rivera approved the recommendation
with the modification that Rosemarie Vera, Quintin Gomez, Jr., and Chito Gonzales be
excluded from the charge on the ground of insufficiency of evidence. xii [12]

The information for estafa attached to the Joint Resolution was approved (on 7 April
1993) by Ismael P. Casabar, Chief of the Prosecution Division, upon authority of the
City Prosecutor of Quezon City, and was filed with the RTC of Quezon City on 12 April
1993. It was docketed as Criminal Case No. Q-93-43198. xiii The information reads as
[13]

follows:
The undersigned 1st Assistant City Prosecutor accuses PAUL G. ROBERTS, JR.
RODOLFO C. SALAZAR, LUIS F. LORENZO, SR., LUIS P. LORENZO, JR., J.
ROBERTO DELGADO, AMAURY R. GUTIERREZ, BAYANI N. FABIC, JOSE YULO,
JR., ESTEBAN B. PACANNUAYAN, JR. and WONG FONG FUI, of the crime of
ESTAFA, committed as follows:
That in the month of February, 1992, in Quezon City, Philippines and for sometime
prior and subsequent thereto, the above-named accused -
Paul G. Roberts, Jr. ) being then the Presidents
Rodolfo G. Salazar and Executive Officers
Luis F. Lorenzo, Sr. ) being then the Chairman of the Board
of Directors
Luis P. Lorenzo, Jr. ) being then the Vice Chairman of the
Board
J. Roberto Delgado ) being then Members of the Board
Amaury R. Gutierrez )
Bayani N. Fabic )
Jose Yulo, Jr. )
Esteban B. Pacannuayan, Jr. and
Wong Fong Fui )
OF THE PEPSI COLA PRODUCTS PHILIPPINES, INC., CONSPIRING with one
another, with intent of gain, by means of deceit, fraudulent acts or false pretenses,
executed prior to or simultaneously with the commission of the fraud, did then and
there willfully, unlawfully and feloniously defraud the private complainants whose
names with their prizes claimed appear in the attached lists marked as Annexes “A” to
“A-46”; “B” to “-33”; “C” to “C-281”; “D” to “D-238”; “E” to “E-3O” and “F” to “F-244” in
the following manner: on the date and in the place aforementioned, said accused
pursuant to their conspiracy, launched the Pepsi Cola Products Philippines, Inc.
“Number Fever Promotion” from February 17 to May 8, 1992 later extended to May 11-
June 12, 1992 and announced and advertised in the media that “all holders of crowns
and/or caps of Pepsi, Mirinda, Mountain Dew and Seven-Up bearing the winning 3-digit
number will win the full amount of the prize printed on the crowns/caps which are
marked with a seven-digit security code as a measure against tampering or faking of
crowns and each and every number has its own unique matching security code,”
enticing the public to buy Pepsi softdrinks with aforestated alluring and attractive
advertisements to become millionaires, and by virtue of such representations made by
the accused, the said complainants bought Pepsi softdrinks, but, the said accused after
their TV announcement on May 25, 1992 that the winning number for the next day was
“349,” in violation of their aforecited mechanics, refused as they still refuse to
 redeem/pay the said Pepsi crowns and/or caps presented to them by the complainants,
who, among others, were able to buy Pepsi softdrinks with crowns/caps bearing
number “349” with security codes L-2560-FQ and L-3560-FQ, despite repeated
demands made by the complainants, to their damage and prejudice to the extent of the
amount of the prizes respectively due them from their winning “349” crowns/caps,
together with such other amounts they spent ingoing to and from the Office of Pepsi to
claim their prizes and such other amounts used in buying Pepsi softdrinks which the
complainants normally would not have done were it not for the false, fraudulent and
deceitful posters of Pepsi Cola Products, Inc.
CONTRARY TO LAW.
On 14 April 1993, the petitioners filed with the Office of the City Prosecutor a motion
for the reconsideration of the Joint Resolution xiv alleging therein that (a) there was
[14]

neither fraud in the Number Fever Promotion nor deviation from or modification of the
promotional rules approved by the Department of Trade and industry (DTI), for from the
start of the promotion, it had always been clearly explained to the public that for one to
be entitled to the cash prize his crown must bear both the winning number and the
correct security code as they appear in the DTI list; (b) the complainants failed to allege,
much less prove with prima facie evidence, the specific overt criminal acts or
ommissions purportedly committed by each of the petitioners; (c) the compromise
agreement entered into by PEPSI is not an admission of guilt; and (d) the evidence
establishes that the promo was carried out with utmost good faith and without malicious
intent.
On 15 April 1993, the petitioners filed with the DOJ a Petition for Review xv wherein,
[15]

for the same grounds adduced in the aforementioned motion for reconsideration, they
prayed that the Joint Resolution be reversed and the complaints dismissed. They further
stated that the approval of the Joint Resolution by the City prosecutor was not the result
of a careful scrutiny and independent evaluation of the relevant facts and the applicable
law but of the grave threats, intimidation, and actual violence which the complainants
had inflicted on him and his assistant prosecutors.
On that same date, the petitioners filed in Criminal Case No. Q-93-43198 Motions to
Suspend Proceedings and to Hold in Abeyance Issuance of Warrants of Arrest on the
ground that they had filed the aforesaid Petition for Review. xvi[16]

On 21 April 1993, acting on the Petition for Review, Chief State Prosecutor Zenon
L. De Guia issued a 1st Indorsement, xvii directing the City Prosecutor of Quezon City to
[17]

inform the DOJ whether the petitioners have already been arraigned, and if not, to move
in court for the deferment of further proceedings in the case and to elevate to the DOJ
the entire records of the case, for the case is being treated as an exception pursuant to
Section 4 of Department Circular No. 7 dated 25 January 1990.
On 22 April 1993, Criminal Case no. Q-93-41398 was raffled to Branch 104 of the
RTC of Quezon City.xviii[18]

In the morning of 27 April 1993, private prosecutor Julio Contreras filed an Ex-Parte
Motion for Issuance of Warrants of Arrest.xix [19]

In the afternoon of that same day, petitioner Paul Roberts, Jr., filed a Supplemental
Urgent Motion to hold in Abeyance Issuance of Warrant of Arrest and to Suspend
Proceedings.xx He stressed that the DOJ had taken cognizance of the Petition for
[20]

Review by directing the City Prosecutor to elevate the records of I.S. No. P-4401 and its
related cases and asserted that the petition for review was an essential part of the
petitioners’ right to a preliminary investigation.
The next day, respondent Judge Asuncion, Presiding Judge of Branch 104 of the
RTC of Quezon City, issued an order advising the parties that his court would “be
guided by the doctrine laid down by the Supreme Court in the case of Crespo vs.
Mogul, 151 SCRA 462 and not by the resolution of the Department of Justice on the
petition for review undertaken by the accused.” xxi [21]
 On 30 April 1993, Assistant City Prosecutor Tirso M. Gavero filed with the trial court
a Motion to Defer Arraignment wherein he also prayed that “further proceedings be held
in abeyance pending final disposition by the Department of Justice.” xxii [22]

On 4 May 1993, Gavero filed an Amended Information, xxiii accompanied by a

[23]

corresponding motionxxiv to admit it. The amendments merely consist in the statement
[24]

that the complainants therein were only “among others” who were defrauded by the
accused and that the damage or prejudice caused amounted “to several billions of
pesos, representing the amounts due them from their winning ‘349’ crowns/caps.” The
trial court admitted the amended information on the same date. xxv [25]

Later, the attorneys for the different private complainants filed, respectively, an
Opposition to Motion to Defer Arraignment, xxvi and Objection and Opposition to Motion
[26]

to Suspend Proceedings and to Hold in Abeyance the Issuance of Warrants of Arrest. xxvii
[27]

On 14 May 1993, the petitioners filed a Memorandum in support of their Motion to

Suspend Proceedings and to Hold in Abeyance the Issuance of the Warrants of
Arrest.xxviii
[28]

On 17 May 1993, respondent Judge Asuncion issued the challenged order (1)
denying the petitioners’ Motion to Suspend Proceedings and to Hold In Abeyance
Issuance of Warrants of Arrest and the public prosecutor’s Motion to Defer Arraignment
and (2) directing the issuance of the warrants of arrest “after 21 June 1993” and setting
the arraignment on 28 June 1993.xxix Pertinent portions of the order read as follows:
[29]

In the Motion filed by the accused, it is alleged that on April 15, 1993, they filed a
petition for review seeking the reversal of the resolution of the City Prosecutor of
Quezon City approving the filing of the case against the accused, claiming that:
1. The resolution constituting [sic] force and duress;
2. There was no fraud or deceit therefore there can be no estafa;
3. No criminal overt acts by respondents were proved;
4. Pepsi nor the accused herein made no admission of guilt before the Department of
Trade and Industry;
5. The evidence presented clearly showed no malicious intent on the part of the
accused.
Trial Prosecutor Tirso M. Gavero in his Motion to Defer Arraignment averred that
there is a pending petition for review with the Department of Justice filed by the accused
and the Office of the City Prosecutor was directed, among other things, to cause for the
deferment of further proceedings pending final disposition of said petition by the
Department of Justice.
The motions filed by the accused and the Trial Prosecutor are hereby DENIED.
This case is already pending in this Court for trial. To follow whatever opinion the
Secretary of Justice may have on the matter would undermine the independence and
integrity of this Court. This Court is still capable of administering justice.
The Supreme Court in the case of Crespo vs. Mogul (SCRA 151, pp. 471-472)
stated as follows:
“In order therefor to avoid such a situation whereby the opinion of the Secretary of
Justice who reviewed the action of the fiscal may be disregarded by the trial court, the
Secretary of Justice should, as far as practicable, refrain from entertaining a petition for
review or appeal from the action of the fiscal, when the complaint or information has
already been filed in Court. The matter should be left entirely for the determination of
the Court.”
WHEREFORE, let warrant of arrest be issued after June 21, 1993, and
arraignment be set on June 28, 1993, at 9:30 in the morning.
 On 7 June 1993, the petitioners filed with the Court of Appeals a special civil action
for certiorari and prohibition with application for a temporary restraining order, xxx which
[30]

was docketed as CA-G.R. SP No. 31226. They contended therein that respondent
Judge Asuncion had acted without or in excess of jurisdiction or with grave abuse of
discretion in issuing the aforementioned order of 17 May 1993 because
I. RESPONDENT JUDGE FAILED TO EXAMINE THE RECORD OF PRELIMINARY
INVESTIGATION BEFORE ORDERING THE ARREST OF PETITIONERS.
II. THERE IS NO PROBABLE CAUSE TO HOLD PETITIONERS CRIMINALLY
LIABLE FOR ESTAFA, OTHER DECEITS, OR ANY OTHER OFFENSE.
III. THE PROCEEDINGS BELOW SHOULD HAVE BEEN SUSPENDED TO AWAIT
THE SECRETARY OF JUSTICE’S RESOLUTION OF PETITIONERS’ APPEAL,
AND
IV.THERE IS NO OTHER PLAIN, SPEEDY AND ADEQUATE REMEDY IN THE
ORDINARY COURSE OF LAW.
On 15 June 1993, the Court of Appeals issued a temporary restraining order to
maintain the status quo.xxxi In view thereof, respondent Judge Asuncion issued an
[31]

order on 28 June 1993xxxii postponing indefinitely the arraignment of the petitioners

[32]

which was earlier scheduled on that date.

On 28 June 1993, the Court of Appeals heard the petitioners’ application for a writ
of preliminary injunction, granted the motion for leave to intervene filed by J. Roberto
Delgado, and directed the Branch Clerk of Court of the RTC of Quezon City to elevate
the original records of Criminal Case No. Q-93-43198 xxxiii[33]

Upon receipt of the original records of the criminal case, the Court of Appeals found
that a copy of the Joint Resolution had in fact been forwarded to, and received by, the
trial court on 22 April 1993, which fact belied the petitioners’ claim that the respondent
Judge had not the slightest basis at all for determining probable cause when he ordered
the issuance of warrants of arrest. It ruled that the Joint Resolution “was sufficient in
itself to have been relied upon by respondent Judge in convincing himself that probable
cause indeed exists for the purpose of issuing the corresponding warrants of arrest”;
and that the “mere silence of the records or the absence of any express declaration” in
the questioned order as to the basis of such finding does not give rise to an adverse
inference, for the respondent Judge enjoys in his favor the presumption of regularity in
the performance of his official duty. The Court of Appeals then issued a resolution xxxiv [34]

denying the application for a writ of preliminary injunction.

On 8 June 1993, the petitioners filed a motion to reconsider xxxv the aforesaid
[35]

resolution. The Court of Appeals required the respondents therein to comment on the
said motion.xxxvi
[36]

On 3 August 1993, the counsel for the private complainants filed in CA-G.R. SP No.
31226 a Manifestationxxxvii informing the court that the petitioners’ petition for review
[37]

filed with the DOJ was dismissed in a resolution dated 23 July 1993. A copy xxxviii of the
[38]

resolution was attached to the Manifestation.

On 21 September 1993, the public respondents filed in CA-G.R. SP No. 31226 a
motion to dismiss the petitionxxxix on the ground that it has become moot and academic
[39]

in view of the dismissal by the DOJ of the petitioners’ petition to review the Joint
Resolution. The dismissal by the DOJ is founded on the following exposition:
You questioned the said order of the RTC before the Court of Appeals and prayed
for the issuance of a writ of preliminary injunction to restrain the Trial Judge from
issuing any warrant of arrest and from proceeding with the arraignment of the accused.
The appellate court in a resolution dated July 1, 1993, denied your petition.
In view of the said developments, it would be an exercise in futility to continue
reviewing the instant cases for any further action on the part of the Department would
depend on the sound discretion of the Trial Court. The denial by the said court of the
motion to defer arraignment filed at our instance was clearly an exercise of its
discretion. With the issuance of the order dated May 17, 1993, the Trial Court was in
effect sending a signal to this Department that “the determination of the case is within its
exclusive jurisdiction and competence.” The rule is that ‘x x x once a complaint or
information is filed in Court, any disposition of the case as to 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’ (Crespo vs. Mogul, 151
SCRA 462).xl [40]

On 28 September 1993, the Court of Appeals promulgated a decision xli dismissing

[41]

the petition because it had been “mooted with the release by the Department of Justice
of its decision x x x dismissing petitioners’ petition for review by inerrantly upholding the
criminal court’s exclusive and unsupplantable authority to control the entire course of
the case brought against petitioners, reiterating with approval the dictum laid down in
the ‘Crespo’ case.”
The petitioners filed a motion to reconsider the DOJ’s dismissal of the petition citing
therein its resolutions in other similar cases which were favorable to the petitioners and
adverse to other “349” Pepsi crowns holders.
In its resolution of 3 February 1994, the DOJ, through its “349” Committee, denied
the motion and stated: “The instant petition is different from the other petitions resolved
by this Department in similar cases from the provinces. In the latter petitions, the
complaints against herein respondents [sic]xlii were dismissed inasmuch as the
[42]

informations have not yet been filed or even if already filed in court, the proceedings
have been suspended by the courts to await the outcome of the appeal with this
Department.”xliii [43]

The petitioners likewise filed a motion to reconsider xliv the aforesaid Court of
[44]

Appeals’ decision, which the said court denied in its resolution xlv of 9 February 1994.
[45]

Hence, the instant petition.

The First Division of this Court denied due course to this petition in its resolution of
19 September 1994.xlvi [46]

On 7 October 1994, the petitioners filed a motion for the reconsideration xlvii of the[47]

aforesaid resolution. Acting thereon, the First Division required the respondents to
comment thereon.
Later, the petitioners filed a supplemental motion for reconsideration xlviii and a [48]

motion to refer this case to the Court en banc.xlix In its resolution of 14 November 1994,l
[49]

the First Division granted the latter motion and required the respondents to comment
[50]

on the supplemental motion for reconsideration

In the resolution of 24 November 1994, the Court en banc accepted the referral.
On 10 October 1995, after deliberating on the motion for reconsideration and the
subsequent pleadings in relation thereto, the Court en banc granted the motion for
reconsideration; reconsidered and set aside the resolution of 19 September 1994; and
reinstated the petition. It then considered the case submitted for decision, “since the
parties have exhaustively discussed the issues in their pleadings, the original records of
Criminal Case No. Q-93-43198 and of CA-G.R. SP No. 31226 had been elevated to this
Court, and both the petitioners and the Office of the Solicitor General pray, in effect, that
this Court resolve the issue of probable cause On the basis thereof.”
The pleadings of the parties suggest for this Court’s resolution the following key
issues:
1. Whether public respondent Judge Asuncion committed grave abuse of discretion in
denying, on the basis of Crespo vs. Mogul, the motions to suspend proceedings and
 hold in abeyance the issuance of warrants of arrest and to defer arraignment until
after the petition for review filed with the DOJ shall have been resolved.
2. Whether public respondent Judge Asuncion committed grave abuse of discretion in
ordering the issuance of warrants of arrest without examining the records of the
preliminary investigation.
3. Whether the DOJ, through its “349” Committee, gravely abused its discretion in
dismissing the petition for review on the following bases: (a) the resolution of public
respondent Court of Appeals denying the application for a writ of preliminary
injunction and (b) of public respondent Asuncion’s denial of the abovementioned
motions.
4. Whether public respondent Court of Appeals committed grave abuse of discretion
(a) in denying the motion for a writ of preliminary injunction solely on the ground that
public respondent Asuncion had already before him the Joint Resolution of the
investigating prosecutor when he ordered the issuance of the warrants of arrest, and
(b) in ultimately dismissing the petition on the ground of mootness since the DOJ
has dismissed the petition for review.
5. Whether this Court may determine in this proceedings the existence of probable
cause either for the issuance of warrants of arrest against the petitioners or for their
prosecution for the crime of estafa.
We resolve the first four issues in the affirmative and the fifth, in the negative.

I.

There is nothing in Crespo vs. Mogulli which bars the DOJ from taking cognizance
[51]

of an appeal, by way of a petition for review, by an accused in a criminal case from an

unfavorable ruling of the investigating prosecutor. It merely advised the DOJ to, “as far
as practicable, refrain from entertaining a petition for review or appeal from the action of
the fiscal, when the complaint or information has already been filed in Court.” More
specifically, it stated:
In order therefore to avoid such a situation whereby the opinion of the Secretary of
Justice who reviewed the action of the fiscal may be disregarded by the trial court, the
Secretary of Justice should, as far as practicable, refrain from entertaining a petition for
review or appeal from the action of the fiscal, when the complaint or information has
already been filed in Court. The matter should be left entirely for the determination of
the Court.lii[52]
In Marcelo vs. Court of Appeals,liii this Court explicitly declared:
[53]

Nothing in the said ruling forecloses the power or authority of the Secretary of
Justice to review resolutions of his subordinates in criminal cases. The Secretary of
Justice is only enjoined to refrain as far as practicable from entertaining a petition for
review or appeal from the action of the prosecutor once a complaint or information is
filed in court. In any case, the grant of a motion to dismiss, which the prosecution may
file after the Secretary of Justice reverses an appealed resolution, is subject to the
discretion of the court.
Crespo could not have intended otherwise without doing violence to, or repealing,
the last paragraph of Section 4, Rule 112 of the Rules of Court liv which recognizes the
[54]

authority of the Secretary of Justice to reverse the resolution of the provincial or city
prosecutor or chief state prosecutor upon petition by a proper party.
Pursuant to the said provision, the Secretary of Justice had promulgated the rules
on appeals from resolutions in preliminary investigation. At the time the petitioners filed
their petition for the review of the Joint Resolution of the investigating prosecutor, the
governing rule was Circular No. 7, dated 25 January 1990. Section 2 thereof provided
that only resolutions dismissing a criminal complaint may be appealed to the Secretary
of Justice. Its Section 4,lv however, provided an exception, thus allowing, upon a
[55]

showing of manifest error or grave abuse of discretion, appeals from resolutions finding
probable cause, provided that the accused has not been arraigned.
The DOJ gave due course to the petitioners’ petition for review as an exception
pursuant to Section 4 of Circular No. 7.
Meanwhile, the DOJ promulgated on 30 June 1993 Department Order No. 223 lvi [56]

which superseded Circular No. 7. This Order, however, retained the provisions of
Section 1 of the Circular on appealable cases and Section 4 on the non-appealable
cases and the exceptions thereto.
There is nothing in Department Order No. 223 which would warrant a recall of the
previous action of the DOJ giving due course to the petitioners’ petition for review. But
whether the DOJ would affirm or reverse the challenged Joint Resolution is still a matter
of guesswork. Accordingly, it was premature for respondent Judge Asuncion to deny the
motions to suspend proceedings and to defer arraignment on the following grounds:
This case is already pending in this Court for trial. To follow whatever opinion the
Secretary of Justice may have on the matter would undermine the independence and
integrity of this Court. This Court is still capable of administering justice.
The real and ultimate test of the independence and integrity of this court is not the
filing of the aforementioned motions at that stage of the proceedings but the filing of a
motion to dismiss or to withdraw the information on the basis of a resolution of the
petition for review reversing the Joint Resolution of the investigating prosecutor. Before
that time, the following pronouncement in Crespo did not yet truly become relevant or
applicable:
The rule therefore in this jurisdiction is that once a complaint or information is filed
in Court any disposition of the case as its dismissal or the conviction or acquittal of the
accused rests in the sound discretion of the court. Although the fiscal retains the
direction and control of the prosecution of criminal cases even while the case is already
in court he cannot impose his opinion on the trial court. The court is the best and sole
judge on what to do with the case before it. The determination of the case is within its
exclusive jurisdiction and competence. A motion to dismiss the case filed by the fiscal
should be addressed to the Court who has the option to grant or deny the same. It
does not matter if this is done before or after the arraignment of the accused or that the
motion was filed after a reinvestigation or upon instructions of the Secretary of Justice
who reviewed the records of the investigation.lvii[57]
However, once a motion to dismiss or withdraw the information is filed the trial judge
may grant or deny it, not out of subservience to the Secretary of Justice, but in faithful
exercise of judicial prerogative. This Court pertinently stated so in Martinez vs. Court of
Appeals:lviii
[58]

Whether to approve or disapprove the stand taken by the prosecution is not the
exercise of discretion required in cases like this. The trial judge must himself be
convinced that there was indeed no sufficient evidence against the accused, and this
conclusion can be arrived at only after an assessment of the evidence in the
possession of the prosecution. What was imperatively required was the trial judge’s
own assessment of such evidence, it not being sufficient for the valid and proper
exercise of judicial discretion merely to accept the prosecution’s word for its supposed
insufficiency.
As aptly observed the Office of the Solicitor General, in failing to make an
independent finding of the merits of the case and merely anchoring the dismissal on the
revised position of the prosecution, the trial judge relinquished the discretion he was
duty bound to exercise. In effect, it was the prosecution, through the Department of
Justice which decided what to do and not the court which was reduced to a mere rubber
stamp in violation of the ruling in Crespo vs. Mogul.
 II.

Section 2, Article III of the present Constitution provides that no search warrant or
warrant of arrest shall issue except upon probable cause to be determined personally
by the judge after examination under oath or affirmation of the complainant and the
witnesses he may produce.
Under existing laws, warrants of arrest may be issued (1) by the Metropolitan Trial
Courts (MeTCs) except those in the National Capital Region, Municipal Trial Courts
(MTCs), and Municipal Circuit Trial Courts (MCTCs) in cases falling within their
exclusive original jurisdiction;lix in cases covered by the rule on summary procedure
[59]

where the accused fails to appear when required; lx and in cases filed with them which
[60]

are cognizable by the Regional Trial Courts (RTCs); lxi and (2) by the Metropolitan Trial
[61]

Courts in the National Capital Region (MeTCs-NCR) and the RTCs in cases filed with
them after appropriate preliminary investigations conducted by officers authorized to do
so other than judges of MeTCs, MTCs and MCTCs.lxii [62]

As to the first, a warrant can issue only if the judge is satisfied after an examination
in writing and under oath of the complainant and the witnesses, in the form of searching
questions and answers, that a probable cause exists and that there is a necessity of
placing the respondent under immediate custody in order not to frustrate the ends of
justice.
As to the second, this Court held in Soliven vs. Makasiarlxiii that the judge is not
[63]

required to personally examine the complainant and the witnesses, but

[f]ollowing established doctrine and procedure, he shall: (1) personally evaluate the
report and supporting documents submitted by the fiscal regarding the existence of
probable cause and, on the basis thereof, issue a warrant of arrest; or (2) if on the
basis thereof he finds no probable cause, he may disregard the fiscal’s report and
require the submission of supporting affidavits of witnesses to aid him in arriving at a
conclusion as to the existence of probable cause.lxiv[64]
Sound policy supports this procedure, “otherwise judges would be unduly laden with the
preliminary examination and investigation of criminal complaints instead of
concentrating on hearing and deciding cases filed before their courts.” It must be
emphasized that judges must not rely solely on the report or resolution of the fiscal (now
prosecutor); they must evaluate the report and the supporting documents. In this sense,
the aforementioned requirement has modified paragraph 4(a) of Circular No. 12 issued
by this Court on 30 June 1987 prescribing the Guidelines on Issuance of Warrants of
Arrest under Section 2, Article III of the 1987 Constitution, which provided in part as
follows:
4. In satisfying himself of the existence of a probable cause for the issuance of a
warrant of arrest, the judge, following established doctrine and procedure, may
either:
(a) Rely upon the fiscal’s certification of the existence of probable cause whether or
not the case is cognizable only by the Regional Trial Court and on the basis
thereof, issue a warrant of arrest. x x x
This requirement of evaluation not only of the report or certification of the fiscal but
also of the supporting documents was further explained in People vs. Inting,lxv where [65]

this Court specified what the documents may consist of, viz., “the affidavits, the
transcripts of stenographic notes (if any), and all other supporting documents behind the
Prosecutor’s certification which are material in assisting the Judge to make his
determination of probable cause. Thus:
We emphasize the important features of the constitutional mandate that “x x x no
search warrant or warrant of arrest shall issue except upon probable cause to be
determined personally by the judge x x x” (Article III, Section 2, Constitution).
 First, the determination of probable cause is a function of the Judge. It is not for the
Provincial Fiscal or Prosecutor nor the Election Supervisor to ascertain. Only the Judge
and the Judge alone makes this determination.
Second, the preliminary inquiry made by a Prosecutor does not bind the Judge. It
merely assists him to make the determination of probable cause. The Judge does not
have to follow what the Prosecutor presents to him. By itself, the Prosecutor’s
certification of probable cause is ineffectual. It is the report, the affidavits, the transcripts
of stenographic notes (if any), and all other supporting documents behind the
Prosecutor’s certification which are material in assisting the Judge to make his
determination.
In adverting to a statement in People vs. Delgadolxvi that the judge may rely on the
[66]

resolution of the Commission on Elections (COMELEC) to file the information by the

same token that it may rely on the certification made by the prosecutor who conducted
the preliminary investigation in the issuance of the warrant of arrest, this Court stressed
in Lim vs. Felixlxvii that
[67]

Reliance on the COMELEC resolution or the Prosecutor’s certification

presupposes that the records of either the COMELEC or the Prosecutor have been
submitted to the Judge and he relies on the certification or resolution because the
records of the investigation sustain the recommendation. The warrant issues not on the
strength of the certification standing alone but because of the records which sustain it.
And noting that judges still suffer from the inertia of decisions and practice under the
1935 and 1973 Constitutions, this Court found it necessary to restate the rule “in greater
detail and hopefully clearer terms.” It then proceeded to do so, thus:
We reiterate the ruling in Soliven vs. Makasiar that the Judge does not have to
personally examine the complainant and his witnesses. The Prosecutor can perform the
same functions as a commissioner for the taking of the evidence. However, there
should be a report and necessary documents supporting the Fiscal’s bare certification.
All of these should be before the Judge.
The extent of the Judge’s personal examination of the report and its annexes
depends on the circumstances of each case. We cannot determine beforehand how
cursory or exhaustive the Judge’s examination should be. The Judge has to exercise
sound discretion for, after all, the personal determination is vested in the Judge by the
Constitution. It can be as brief as or detailed as the circumstances of each case require.
To be sure, the Judge must go beyond the Prosecutor’s certification and investigation
report whenever, necessary. He should call for the complainant and witnesses
themselves to answer the court’s probing questions when the circumstances of the case
so require.
This Court then set aside for being null and void the challenged order of respondent
Judge Felix directing the issuance of the warrants of arrest against petitioners Lim, et
al., solely on the basis of the prosecutor’s certification in the informations that there
existed probable cause “without having before him any other basis for his personal
determination of the existence of a probable cause.”
In Allado vs. Diokno,lxviii this Court also ruled that “before issuing a warrant of
[68]

arrest, the judge must satisfy himself that based on the evidence submitted there is
sufficient proof that a crime has been committed and that the person to be arrested is
probably guilty thereof.”
In the recent case of Webb vs. De Leon,lxix this Court rejected the thesis of the
[69]

petitioners of absence probable cause and sustained the investigating panel’s and the
respondent Judge’s findings of probable cause. After quoting extensively from Soliven
vs. Makasiar,lxx this Court explicitly pointed out:
[70]

Clearly then, the Constitution, the Rules of Court, and our case law repudiate the
submission of petitioners that respondent judges should have conducted “searching
 examination of witnesses” before issuing warrants of arrest against them. They also
reject petitioners’ contention that a judge must first issue an order of arrest before
issuing a warrant of arrest. There is no law or rule requiring the issuance of an Order of
Arrest prior to a warrant of arrest.
In the case at bar, the DOJ Panel submitted to the trial court its 26-page report, the
two (2) sworn statements of Alfaro and the sworn statements of Carlos Cristobal and
Lolita Birrer as well as the counter- affidavits of the petitioners. Apparently, the
painstaking recital and analysis of the parties’ evidence made in the DOJ Panel Report
satisfied both judges that there is probable cause to issue warrants of arrest against
petitioners. Again, we stress that before issuing warrants of arrest, judges merely
determine personally the probability, not the certainty of the guilt of an accused. In doing
so, judges do not conduct a de novo hearing to determine the existence of probable
cause. They just personally review the initial determination of the prosecutor finding a
probable cause to see if it is supported by substantial evidence. The sufficiency of the
review process cannot be measured by merely counting minutes and hours. The fact
that it took the respondent judges a few hours to review and affirm the Probable cause
determination of the DOJ Panel does not mean they made no personal evaluation of the
evidence attached to the records of the case. (italics supplied)
The teachings then of Soliven, Inting, Lim, Allado, and Webb reject the proposition
that the investigating prosecutor’s certification in an information or his resolution which
is made the basis for the filing of the information, or both, would suffice in the judicial
determination of probable cause for the issuance of a warrant of arrest. In Webb, this
Court assumed that since the respondent Judges had before them not only the 26-page
resolution of the investigating panel but also the affidavits of the prosecution witnesses
and even the counter-affidavits of the respondents, they (judges) made personal
evaluation of the evidence attached to the records of the case.
Unfortunately, in Criminal Case No. Q-93-43198, nothing accompanied the
information upon its filing on 12 April 1993 with the trial court. As found by the Court of
Appeals in its resolution of 1 July 1993, a copy of the Joint Resolution was forwarded to,
and received by, the trial court only on 22 April 1993. And as revealed by the
certificationlxxi of Branch Clerk of Court Gibson Araula, Jr., no affidavits of the
[71]

witnesses, transcripts of stenographic notes of the proceedings during the preliminary

investigation, or other documents submitted in the course thereof were found in the
records of Criminal Case No. Q-93-43198 as of 19 May 1993. Clearly, when respondent
Judge Asuncion issued the assailed order of 17 May 1993 directing, among other
things, the issuance of warrants of arrest, he had only the information, amended
information, and Joint Resolution as bases thereof. He did not have the records or
evidence supporting the prosecutor’s finding of probable cause. And strangely enough,
he made no specific finding of probable cause; he merely directed the issuance of
warrants of arrest “after June 21, 1993.” It may, however, be argued that the directive
presupposes a finding of probable cause. But then compliance with a constitutional
requirement for the protection of individual liberty cannot be left to presupposition,
conjecture, or even convincing logic.

III.

As earlier stated, per its 1st Indorsement of 21 April 1993, the DOJ gave due course
to the petitioners’ petition for review pursuant to the exception provided for in Section 4
of Circular No. 7, and directed the Office of the City Prosecutor of Quezon City to
forward to the Department the records of the cases and to file in court a motion for the
deferment of the proceedings. At the time it issued the indorsement, the DOJ already
knew that the information had been filed in court, for which reason it directed the City
Prosecutor to inform the Department whether the accused have already been arraigned
and if not yet arraigned, to move to defer further proceedings. It must have been fully
aware that, pursuant to Crespo vs. Mogul, a motion to dismiss a case filed by the
prosecution either as a consequence of a reinvestigation or upon instructions of the
Secretary of Justice after a review of the records of the investigation is addressed to the
trial court, which has the option to grant or to deny it. Also, it must have been still fresh
in its mind that a few months back it had dismissed for lack of probable cause other
similar complaints of holders of “349” Pepsi crowns. lxxii Thus, its decision to give due
[72]

course to the petition must have been prompted by nothing less than an honest
conviction that a review of the Joint Resolution was necessary in the highest interest of
justice in the light of the special circumstances of the case. That decision was
permissible within the “as far as practicable” criterion in Crespo.
Hence, the DOJ committed grave abuse of discretion when it executed on 23 July
1993 a unilateral volte-face, which was even unprovoked by a formal pleading to
accomplish the same end, by dismissing the petition for review. It dismissed the petition
simply because it thought that a review of the Joint Resolution would be an exercise in
futility in that any further action on the part of the Department would depend on the
sound discretion of the trial court, and that the latter’s denial of the motion to defer
arraignment filed at the instance of the DOJ was clearly an exercise of that discretion or
was, in effect, a signal to the Department that the determination of the case is within the
court’s exclusive jurisdiction and competence. This infirmity becomes more pronounced
because the reason adduced by the respondent Judge for his denial of the motions to
suspend proceedings and hold in abeyance issuance of warrants of arrest and to defer
arraignment finds, as yet, no support in Crespo.

IV.

If the only issue before the Court of Appeals were the denial of the petitioners’
Motion to Suspend Proceedings and to Hold in Abeyance Issuance of Warrants of
Arrest and the public prosecutor’s Motion to Defer Arraignment, which were both based
on the pendency before the DOJ of the petition for the review of the Joint Resolution,
the dismissal of CA-G.R. SP No. 31226 on the basis of the dismissal by the DOJ of the
petition for review might have been correct. However, the petition likewise involved the
issue of whether respondent Judge Asuncion gravely abused his discretion in ordering
the issuance of warrants of arrest despite want of basis. The DOJ’s dismissal of the
petition for review did not render moot and academic the latter issue.
In denying in its resolution of 1 July 1993 the petitioners’ application for a writ of
preliminary injunction to restrain respondent Judge Asuncion from issuing warrants of
arrest, the Court of Appeals ,justified its action in this wise:
The Joint Resolution was sufficient in itself to have been relied upon by respondent
Judge in convincing himself that probable cause indeed exists for the purpose of
issuing the corresponding warrants of arrest. The mere silence of the records or the
absence of any express declaration in the questioned Order of May 17, 1993 as to
where the respondent Judge based his finding of probable cause does not give rise to
any adverse inference on his part. The fact remains that the Joint Resolution was at
respondent Judge’s disposal at the time he issued the Order for the issuance of the
warrants of arrest. After all, respondent Judge enjoys in his favor the presumption of
regularity in the performance of official actuations. And this presumption prevails until it
is overcome by clear and convincing evidence to the contrary. Every reasonable
intendment will be made in support of the presumption, and in case of doubt as to an
officer’s act being lawful or unlawful it should be construed to be lawful. (31 C.J.S.,
808-810. See also Mahilum, et al. vs. Court of Appeals, 17 SCRA 482; People vs.
Cortez, 21 SCRA 1228; Government of the P.I. vs. Galarosa, 36 Phil. 338).
We are unable to agree with this disquisition, for it merely assumes at least two
things: (1) that respondent Judge Asuncion had read and relied on the Joint Resolution
and (2) he was convinced that probable cause exists for the issuance of the warrants of
arrest against the petitioners. Nothing in the records provides reasonable basis for
these assumptions. In his assailed order, the respondent Judge made no mention of the
Joint Resolution, which was attached to the records of Criminal Case No. Q-93-43198
on 22 April 1993. Neither did he state that he found probable cause for the issuance of
warrants of arrest. And, for an undivinable reason, he directed the issuance of warrants
of arrest only “after June 21, 1993.” If he did read the Joint Resolution and, in so
reading, found probable cause, there was absolutely no reason at all to delay for more
than one month the issuance of warrants of arrest. The most probable explanation for
such delay could be that the respondent Judge had actually wanted to wait for a little
while for the DOJ to resolve the petition for review.
It is, nevertheless, contended in the dissenting opinion of Mr. Justice Reynato S.
Puno that whatever doubts may have lingered on the issue of probable cause was
dissolved when no less than the Court of Appeals sustained the finding of probable
cause made by the respondent Judge after an evaluation of the Joint Resolution. We
are not persuaded with that opinion. It is anchored on erroneous premises. In its 1 July
1993 resolution, the Court of Appeals does not at all state that it either sustained
respondent Judge Asuncion’s finding of probable cause, or found by itself probable
cause. As discussed above, it merely presumed that Judge Asuncion might have read
the Joint Resolution and found probable cause from a reading thereof. Then too, that
statement in the dissenting opinion erroneously assumes that the Joint Resolution can
validly serve as sufficient basis for determining probable cause. As stated above, it is
not.

V.

In criminal prosecutions, the determination of probable cause may either be an

executive or a judicial prerogative. In People vs. Inting,lxxiii this Court aptly stated:
[73]

And third, Judges and Prosecutors alike should distinguish the preliminary inquiry
which determines probable cause for the issuance of a warrant of arrest from a
preliminary investigation proper which ascertains whether the offender should be held
for trial or released. Even if the two inquiries are conducted in the course of one and
the same proceeding, there should be no confusion about the objectives. The
determination of probable cause for the warrant of arrest is made by the Judge. The
preliminary investigation proper - whether or not there is reasonable ground to believe
that the accused is guilty of the offense charged and, therefore, whether or not he
should be subjected to the expense, rigors and embarrassment of trial- is the function
of the Prosecutor.
xxx xxx xxx
We reiterate that preliminary investigation should be distinguished as to whether it
is an investigation for the determination of a sufficient ground for the filing of the
information or it is an investigation for the determination of a probable cause for the
issuance of a warrant of arrest. The first kind of preliminary investigation is executive in
nature. It is part of the prosecution’s job. The second kind of preliminary investigation
which is more properly called preliminary examination is judicial in nature and is lodged
with the judge x x x.
Ordinarily, the determination of probable cause is not lodged with this Court. Its duty
in an appropriate case is confined to the issue of whether the executive or judicial
determination, as the case may be, of probable cause was done without or in excess of
jurisdiction or with grave abuse of discretion amounting to want of jurisdiction. This is
consistent with the general rule that criminal prosecutions may not be restrained or
stayed by injunction, preliminary or final. There are, however, exceptions to this rule.
Among the exceptions are enumerated in Brocka vs. Enrilelxxiv as follows:
[74]

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 these exceptional cases, this Court may ultimately resolve the existence or non-
existence of probable cause by examining the records of the preliminary investigation,
as it did in Salonga vs. Paño,lxxv Allado, and Webb.
[75]

There can be no doubt that, in light of the several thousand private complainants in
Criminal Case No. Q-93-43198 and several thousands more in different parts of the
country who are similarly situated as the former for being holders of “349” Pepsi crowns,
any affirmative holding of probable cause in the said case may cause or provoke, as
justly feared by the petitioners, the filing of several thousand cases in various courts
throughout the country. Inevitably, the petitioners would be exposed to the harassments
of warrants of arrest issued by such courts and to huge expenditures for premiums on
bailbonds and for travels from one court to another throughout the length and breadth of
the archipelago for their arraignments and trials in such cases. Worse, the filing of these
staggering number of cases would necessarily affect the trial calendar of our
overburdened judges and take much of their attention, time, and energy, which they
could devote to other equally, if not more, important cases. Such a frightful scenario
would seriously affect the orderly administration of justice, or cause oppression or
multiplicity of actions - a situation already long conceded by this Court to be an
exception to the general rule that criminal prosecutions may not be restrained or stayed
by injunction.lxxvi
[76]

We shall not, however, reevaluate the evidence to determine if indeed there is

probable cause for the issuance of warrants of arrest in Criminal Case No. Q-93-43298.
For, as earlier stated, the respondent Judge did not, in fact, find that probable cause
exists, and if he did he did not have the basis therefor as mandated by Soliven, Inting,
Lim, Allado, and even Webb. Moreover, the records of the preliminary investigation in
Criminal Case No. Q-93-43198 are not with this Court. They were forwarded by the
Office of the City Prosecutor of Quezon City to the DOJ in compliance with the latter’s
1st Indorsement of 21 April 1993. The trial court and the DOJ must be required to
perform their duty.
 WHEREFORE, the instant petition is granted and the following are hereby SET
ASIDE:
(a)Decision of 28 September 1993 and Resolution of 9 February 1994 of respondent
Court of Appeals in CA-G.R. SP No. 31226;
(b)The Resolution of the “349” Committee of the Department of Justice of 23 July 1993
dismissing the petitioners’ petition for review and of 3 February 1994 denying the
motion to reconsider the dismissal; and
(c) The Order of respondent Judge Maximiano C. Asuncion of 17 May 1993 in Criminal
Case No. Q-93-43198.
The Department of Justice is DIRECTED to resolve on the merits, within sixty (60)
days from notice of this decision, the petitioners’ petition for the review of the Joint
Resolution of Investigating Prosecutor Ramon Gerona and thereafter to file the
appropriate motion or pleading in Criminal Case No. Q-93-43198, which respondent
Judge Asuncion shall then resolve in light of Crespo vs. Mogul, Soliven vs. Makasiar,
People vs. Inting, Lim vs. Felix, Allado vs. Diokno, and Webb vs. De Leon.
In the meantime, respondent Judge Asuncion is DIRECTED to cease and desist
from further proceeding with Criminal Case No. Q-93-43198 and to defer the issuance
of warrants of arrest against the petitioners.
No pronouncement as to costs.
SO ORDERED.
Padilla, Bellosillo, and Hermosisima, Jr., JJ., concur.
Narvasa, C.J. (Chairman), see separate concurring opinion.
Regalado, J., joins the dissent of J. Puno, pro hac vice.
Romero, Melo and Mendoza, JJ., join in the dissent of Justice Puno.
Puno, J., dissents.
Vitug, J., concurs in the opinions of the ponente and the Chief Justice.
Kapunan, J., in the result.
Francisco, J., No part. Ponente of the assailed decision.
Panganiban, J, No Part. Daughter is a management officer of Pepsi Cola, Head
Office, NY, USA.
i[1]
Annex “A” of Petition; Rollo, 64-68. Per Justice, now Associate Justice of this Court, Francisco, R., with Tayao-
Jaguros, L. and Verzola, E., JJ., concurring.

ii[2]
Annex “B” of Petition; Rollo, 69-72.

iii[3]
Annex “C”, Id.; Id., 3-74.

iv[4]
Annexes “D” and “E”, Id.; Id., 75-78.

v[5]
Rollo, 19.

vi[6]
Those represented alone by Atty. Bonifacio Manansala are enumerated, single space, in 91 pages of legal
size bond paper, with an average of 55 names, more or less, per page (Id., Vol.2, 913-1003) and in his
Memorandum-Explanation dated 16 February 1995, he discloses that he is “presently representing more than
7,000 claimants” (Id., Vol. 1, 648). Atty. Jose Espinas revealed in his Comment that he represents “700
INDIVIDUAL COMPLAINANTS, MORE OR LESS” (Id., Vol. 1,567). Atty. Julio Contreras claims in his
Compliance of 10 September 1995 to represent “4,406” (Id., Vol.2, unpaginated).

vii[7]
Originally held from 17 February to 8 May 1992, but later extended from 11 May to 12 June 1992.

viii[8]
Entitled, “Strengthening the Rule-Making and Adjudicatory Powers of the Minister of Trade and Industry in
order to further Protect Consumers.”

ix[9]
Entitled, “An Act to Penalize Fraudulent Advertising, Mislabeling or Misbranding of Any Product, Stocks,
Bonds, Etc..”

x[10]
Rollo, Vol. 1, 152-168; 191-212.

xi[11]
id., 209-210.

xii[12]
Rollo, Vol. 1, 210.

xiii[13]
Records (OR), Criminal Case No. Q-93-43198, Vol. 1 (hereinafter referred to as OR-RTC, Vol. 1), 1-3.

xiv[14]
OR-RTC, Vol. 1, 4-24.
xv[15]
OR-RTC, Vol. 1, 28-49.

xvi[16]
Id. 25-27, 67-68.

xvii[17]
OR-RTC, Vol. 1, 291.

xviii[18]
See stamped entry on top of page 1 of the Information; Id., 1.

xix[19]
Id., 299.

xx[20]
Id., 232-240.

xxi[21]
OR-RTC Vol. 1, 288.

xxii[22]
Id., 289-290.

xxiii[23]
Id., Vol. 2, 1-3.

xxiv[24]
Id., 4.

xxv[25]
Id., 5.

xxvi[26]
Id., 6-11.

xxvii[27]
Id., 12-17, 48-54.

xxviii[28]
OR-RTC, Vol. 1, 55-64.

xxix[29]
Id., Vol. 2, 65-66.
xxx[30]
Rollo, CA-G.R. SP No. 31226 (hereinafter referred to as Rollo-CA), 1-39; see also OR-RTC, Vol. 2, 79-116.

xxxi[31]
Id., 157; Id., 229.

xxxii[32]
OR-RTC, Vol. 2, 233.

xxxiii[33]
Rollo-CA, 193-194.

xxxiv[34]
Id., 196-201.

xxxv[35]
Rollo-CA, 288.

xxxvi[36]
Id., 296.

xxxvii[37]
Id., 334-335.

xxxviii[38]
Id., 336-337.

xxxix[39]
Id., 488-493.

xl[40]
Rollo-CA, 336-337; 490-491.

xli[41]
Per Justice, now Associate Justice of this Court, Francisco, R., with Tayao-Jaguros, L. and Verzola, E., JJ.,
concurring.

xlii[42]
Should be “petitioners.”

xliii[43]
Rollo, Vol. 1, 77-78.
xliv[44]
Rollo-CA, 500-507.

xlv[45]
Id., 575-577.

xlvi[46]
Rollo, Vol. 1, 425-431.

xlvii[47]
Id., 456-484.

xlviii[48]
Id., 533-539.

xlix[49]
Id., 526-530.

l[50]
Id., 555.

li[51]
151 SCRA 462 [1987].

lii[52]
Supra note 51, at 471-472.

liii[53]
235 SCRA 39 [1994].

liv[54]
The said paragraph reads as follows:
If upon petition by a proper party, the Minister of Justice reverses the resolution of the provincial or city fiscal or
chief state prosecutor, he shall direct the fiscal concerned to file the corresponding information without
conducting another preliminary investigation or to dismiss or move for the dismissal of the complaint or
information. (italics supplied)

lv[55]
The said section reads:
SEC. 4. Non-appealable cases; Exceptions. -No appeal may be taken from a resolution of the Chief State
Prosecutor/Regional State Prosecutor/Provincial or City Prosecutor finding probable cause except upon showing
of manifest error or grave abuse of discretion. Notwithstanding the showing of manifest error or grave abuse of
discretion, no appeal shall be entertained where the appellant had already been arraigned. If the appellant is
arraigned during the pendency of the appeal, said appeal shall be dismissed motu proprio by the Secretary of
Justice.
An appeal/motion for reinvestigation from a resolution finding probable cause, however, shall not hold the filing
of the information in court.
lvi[56]
Revised Rules on Appeals from Resolutions in Preliminary Investigations/Reinvestigations.

lvii[57]
Supra note 51, at 471

lviii[58]
237 SCRA 575, 585-586 [1994]. See also Dee vs. Court of Appeals, 238 SCRA 254 [1994].

lix[59]
Third paragraph, Section 87, The Judiciary Act of 1948 (R.A. No. 269), as amended by R.A. Nos. 2613 and
3828, which provides:
No warrant of arrest shall be issued by any municipal judge in any criminal case filed with him unless he first
examines the witness or witnesses personally, and the examination shall be under oath and reduced to writing in
the form of searching questions and answers.

lx[60]
Second paragraph, Section 10, 1983 Rule on Summary Procedure, which provides:
Failure on the part of the defendant to appear wherever required shall cause the issuance of a warrant
for his arrest if the court shall find that a probable cause exists after an examination in writing and under oath or
affirmation of the complainant and his witnesses.
Section 16, 1991 Revised Rule on Summary Procedure, which provides:
The court shall not order the arrest of the accused except for failure to appear whenever required.
Release of the person arrested shall either be on bail or on recognizance by a responsible citizen acceptable to
the court.

lxi[61]
Section 6(b), Rule 112, Rules of Court, which reads:
If the municipal trial judge conducting the preliminary investigation is satisfied after an examination in writing and
under oath of the complainant and his witnesses, in the form of searching questions and answers, that a
probable cause exists and that there is a necessity of placing the respondent under immediate custody in order
not to frustrate the ends of justice.
Section 37, The Judiciary Reorganization Act of 1980 (B.P. Blg. 129), which reads in part as follows:
No warrant of arrest shall be issued by the Judge in connection with any criminal complaint filed with him for
preliminary investigation, unless after an examination in writing and under oath or affirmation of the complainant
and his witnesses he finds that probable cause exists.

lxii[62]
62 Section 6(a), Rule 112, Rules of Court, which reads:
Section 6. When warrant of arrest may issue. –
(a) By the Regional Trial Court. - Upon the filing of an information, the Regional Trial Court may
issue a warrant for the arrest of the accused.

lxiii[63]
167 SCRA 393 [1988].

lxiv[64]
Id., 398.
lxv[65]
187 SCRA 788, 792 [1990].

lxvi[66]
189 SCRA 715 [1990].

lxvii[67]
194 SCRA 292, 305 [1991].

lxviii[68]
232 SCRA 192,201 [1994].

lxix[69]
G.R. No. 121234 and companion cases, 23 August 1995.

lxx[70]
Supra, note 63.

lxxi[71]
OR-RTC, Vol. 2, 68

lxxii[72]
See for instance the resolutions of 12 January 1993 in the case filed by Merelita Napuran in the Office of the
Provincial Prosecutor of Palo, Leyte (Rollo, Vol. 1, 223); and 14 January 1993 in cases filed with the office of the
City Prosecutor of Lucena City (Id., 227). It did likewise on 8 November 1993 in cases filed before the Provincial
Prosecutor of Pangasinan (Id., 236); and 10 November 1993 in cases filed with the City Prosecutor of Ozamiz
City (Id., 245).

lxxiii[73]
Supra note 65.

lxxiv[74]
192 SCRA 183, 188-189 [1990].

lxxv[75]
134 SCRA 438 [1985].

lxxvi[76]
Dimayuga vs. Fernandez, 43 Phil. 304 [1922], and Fortun vs. Labang, 104 SCRA 607 [1981], cited in
Brocka vs. Enrile, supra note 75

FIRST DIVISION

HEIRS OF FEDERICO C. G.R. No. 184337

DELGADO and ANNALISA

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

DECISION

CARPIO, J.:

The Case

Before the Court is a petition for review on certiorari [1] assailing the Amended
Decision[2] dated 29 August 2008 of the Court of Appeals’ Former Special Seventh
Division, which reversed the Original Decision [3] dated 18 March 2008 of the Court of
Appeals’ Seventh Division, in CA-G.R. SP No. 101196.

The Antecedent Facts

O11 March 2007, the police found the dead body of Federico C. Delgado
(Delgado) at his residence in Mayflower Building, 2515 Leon Guinto corner Estrada
Streets, Malate, Manila. The police was alerted by Annalisa D. Pesico (Pesico), who
allegedly was present at the time of the commission of the crime and was likewise
injured in the incident.[4]

On 1 June 2007, on behalf of Pesico and the heirs of Delgado (petitioners), [5] the
Manila Police District (MPD), represented by Alejandro B. Yanquiling Jr., Chief of the
Homicide Section, filed a complaint-affidavit[6] with the Office of the City Prosecutor of
Manila. The MPD charged respondents Luisito Q. Gonzalez (Gonzalez) and Antonio T.
Buenaflor (Buenaflor) with the murder of Delgado and frustrated murder of Pesico.
Gonzalez is the stepbrother of the deceased and Buenaflor was a former driver for 15
years of Citadel Corporation, owned by the Delgado family.
 Together with the complaint-affidavit, the police presented the following

documents:

1. Sworn Statement (“Sinumpaang Salaysay”) of Pesico dated 11 March

2007;[7]
2. Supplemental Sworn Statement (“Karagdagang Sinumpaang Salaysay”) of
Pesico dated 15 March 2007;[8] and
3. Crime and Progress Reports of Senior Police Officer 2 (SPO2) Virgo Ban
Villareal dated 23 March 2007.[9]

At petitioners’ request, the case was transferred to the Department of Justice

(DOJ) for preliminary investigation.[10] On 20 June 2007, the MPD filed a Supplemental
Complaint-Affidavit[11] and attached the following additional documents:

1. Scene of the Crime Operation (SOCO) Report dated 11 March 2007;[12]

2. Medical Certificate of Pesico from the Ospital ng Maynila dated 7 June 2007;[13]
3. Cartographic Sketch of one of the suspects dated 13 March 2007, drawn by an artist

sketcher of the MPD, as described by Pesico;[14]

4. Photographs of criminals and Delgado’s family members, relatives, friends and

employees, shown to Pesico, where she recognized Gonzalez and Buenaflor as the ones

who mauled her and murdered Delgado;[15]

5. Affidavit of SPO2 Virgo Ban Villareal dated 15 June 2007 attesting to the

identification made by Pesico after viewing said photographs;[16]

6. Affidavit of Retired Police Superintendent Leonito Manipol Cantollas, the forensic

document examiner who analyzed the questioned handwritten word “FRANCO,” the

inscription on a wall found at the crime scene;[17]

7. Questioned Document Examination Report No. 004-07 of Leonito Manipol Cantollas;

[18]

8. Curriculum Vitae of Leonito Manipol Cantollas;[19]

9. Complaint-Affidavit for Robbery filed by Jose Mari C. Delgado, stepbrother of

Gonzalez, against Ruby Q. Gonzalez-Meyer, sister of Gonzalez;[20]

10. Letter via electronic mail dated 4 July 2003 written by Ruby Q.
Gonzalez-Meyer to her and Gonzalez’s mother, Vicky Quirino Gonzalez-
Delgado;[21]
11. Newspaper clipping taken from the Philippine Daily Inquirer dated 26 March
2007, where Gonzalez’s wife, Kuh Ledesma, talked about him, their
relationship and the accusations that her husband was facing;[22]
12. Newspaper clipping taken from the Philippine Daily Inquirer dated 22 March
2007, referring to the family feud between the Delgado and Gonzalez siblings;
[23]
and
13. Police Blotter dated 16 March 2007 reported by Atty. Augusto M. Perez, Jr.,
lawyer of Francisco “Franco” Delgado III, regarding a threatening phone call
by an unknown caller made on 15 March 2007 at the latter’s residence.[24]

Gonzalez and Buenaflor filed their Counter-Affidavits, respectively. [25] Together

with his counter-affidavit, Gonzalez attached relevant documents[26] establishing his
confinement at the Neuro-Psychiatric Unit of the Makati Medical Center from 7 March
2007 until 18 March 2007 and the corroborative affidavits of 29 impartial and
independent witnesses composed of physicians, nurses and personnel of said hospital. [27]
On the other hand, Buenaflor presented the affidavit of his employer, who attested that
Buenaflor was on duty and driving for him at the time of Delgado’s death.[28]

Acting City Prosecutor of Manila Cielitolindo A. Luyun (Investigating

Prosecutor) conducted the preliminary investigation and evaluated the evidence

submitted by the MPD, as well as respondents’ Counter-Affidavits, corroborating

affidavits of 29 witnesses, and supporting documentary evidence. In a Resolution dated

10 September 2007, the Investigating Prosecutor dismissed the complaint for lack of

probable cause that respondents committed the crimes of murder and frustrated murder.
[29]
 On 18 September 2007, petitioners filed a Petition for Review with the Secretary

of Justice. On 15 October 2007, then Acting Secretary of Justice Agnes VST

Devanadera (Acting Secretary Devanadera) reversed the finding of the Investigating

Prosecutor and directed the filing of separate informations for murder and less serious

physical injuries against respondents.[30]

On 18 October 2007, respondents filed a Motion for Reconsideration which was

denied by Acting Secretary Devanadera in a Resolution dated 26 October 2007.[31]

On 30 October 2007, the corresponding Informations were filed. The charge for

the crime of murder was filed before the Regional Trial Court (RTC) of Manila, Branch

32, docketed as Criminal Case No. 07-257487. The charge of less serious physical

injuries was filed before the Metropolitan Trial Court of Manila, Branch 9, docketed as

Criminal Case No. 441878.[32]

Thereafter, respondents filed with the Court of Appeals a petition for certiorari

and prohibition under Rule 65, docketed as CA-G.R. SP No. 101196, assailing the

Resolutions of Acting Secretary Devanadera dated 15 October 2007 and 26 October

2007.[33]

The Ruling of the Court of Appeals

On 18 March 2008, the Court of Appeals, in its Original Decision, dismissed the
petition and denied respondents’ application for preliminary and/or permanent injunctive
writ. The appellate court found no grave abuse of discretion on the part of Acting
Secretary Devanadera in issuing the Resolutions dated 15 October 2007 and 26 October
2007. It affirmed the existence of probable cause when Pesico, the lone eyewitness of
the commission of the crime, positively identified respondents as the perpetrators. The
relevant portion of the Original Decision states:

As held by public respondent, probable cause was met, and rightly so, when Pesico, the

lone eyewitness of the commission of the crime positively identified petitioners as the

authors of the bestial act. To cast doubt on Pesico’s positive identification of petitioners,

the latter pointed to the alleged inconsistencies in the two affidavits that the former has

executed and such other circumstances surrounding the commission of the crime

showing the improbability of identification. But as correctly ruled by public respondent,

these are minor inconsistencies and matters which are not enough, at that stage in time,

to overthrow the possibility and credibility of identification.

On the one hand are the following facts, established by the complaints: (1) That Pesico, who

was likewise injured, witnessed the commission of the crime; (2) Her condition, despite the injury

caused by the blunt object that was used to maul her, with swollen eyes, tied in the arms and legs, does

not totally forestall the possibility that she could have seen and identified the assailants; (3) Pesico

identified petitioners as the authors of the complained acts; and (4) No evidence to show that Pesico

and petitioners know each other as to entertain any possibility that her identification may have been

prompted by ill-motive. On the other, are petitioners’ defense of alibi and denial which they assert

were not considered by public respondent.

In order to overthrow the jurisprudential injunction of giving superior regard to positive

identification over the defenses of alibi and denial, these defenses should be clearly established and

must not leave any room for doubt as to its plausibility and verity. It (alibi) cannot prevail over the

positive testimonies of the prosecution witnesses who have no motive to testify falsely against the

accused.

The burden of evidence, thus, shifts on the respondents to show that their defenses of alibi and

denial are strong enough to defeat probable cause, which was engendered by the prosecution’s alleged

eyewitness’ positive identification of them as the assailants to the crime under investigation.

Moreover, for alibi to prosper, there must be proof that it was physically impossible for the accused to
be at the scene of the crime at the time it was committed. At this juncture, We note the undisputed fact,

concerning the accessibility of the distance between the crime scene and the hospital where petitioner

Gonzale[z] alleged to have been detailed/admitted. The same is true with petitioner Buenaflor who was

only in the vicinity of Roxas Boulevard. Considering the distance of the locus criminis and the places

petitioners alleged they were at the time of the commission of the crime, neither their arguments nor the

affidavits of their witnesses draw out the possibility, nay create physical impossibility, that they may

have been at the scene of the crime when it was committed.

xxx

IN VIEW OF THE FOREGOING, We find no grave abuse of discretion on the part of the

Acting Secretary of Justice in issuing the Resolutions dated 15 October 2007 and 26 October 2007.

ACCORDINGLY, the present Petition is hereby DISMISSED and petitioners’ application for

preliminary (and/or permanent) injunctive writ is necessarily denied.

SO ORDERED.[34]

Respondents then filed a Motion for Reconsideration with the Court of Appeals
on 27 March 2008.[35]

Meanwhile, on 3 July 2008, the RTC ordered that warrants of arrest be issued

against respondents.[36] On 16 and 21 July 2008, Gonzalez and Buenaflor, respectively,

surrendered voluntarily to the police. [37] On 28 July 2008, respondents filed with the

RTC a Motion for Reconsideration (of the Order dated 3 July 2008).

To address the motion for reconsideration filed by respondents, the Court of

Appeals held oral arguments on 17 July 2008. After said hearing, the appellate court
issued an Amended Decision dated 29 August 2008. In the Amended Decision, the

Court of Appeals granted the motion for reconsideration and ordered that the

Informations charging petitioners with murder and less serious physical injuries be

quashed and dismissed. The relevant portion of the Amended Decision states:

This Court has carefully evaluated the evidence of the parties once more, and its

reassessment of the evidence compels it to reconsider its previous affirmation of public

respondent Acting Secretary of Justice’s finding of probably cause. The Court’s incisive

scrutiny of the evidence led it to the conclusion that there was really insufficient

evidence to support public respondent Acting Secretary of Justice’s finding of probable

cause. It is significant to stress at this point that while “probable guilt” and “evidence

less than sufficient for conviction” is the threshold in probable cause determinations, it is

also important nay indispensable that there be sufficient and credible evidence to

demonstrate the existence of probable cause.

xxx

Public respondent Acting Secretary of Justice’s finding of probable cause against the

petitioners is based solely on the account of the prosecution’s lone eyewitness, private

respondent Annalisa Pesico. x x x

It is once apparent that public respondent Acting Secretary of Justice did not really dwell on the

essential facts of the case, much less dig through the crucial details of private respondent Pesico’s

account. Curiously, a close reading of public respondent Acting Secretary of Justice’s assailed

resolution reveals that except for the rather sweeping finding that private respondent Pesico “positively

identified” the petitioners, most of it were re-statements, without more, of broad principles and

presumptions in criminal law, such as the doctrines on alibi, denial, and positive identification. Such

disposition utterly falls short of the admonitions enunciated in Salonga and reiterated in Allado.

Indeed, while probable cause should be determined in a summary manner, there is a need to examine

the evidence with care to prevent material damage to a potential accused’s constitutional right to liberty
and the guarantees of freedom and fair play, and to protect the State from the burden of unnecessary

expenses in prosecuting alleged offenses and holding trials arising from false, fraudulent or groundless

charges. x x x

The pivotal question then is, was there really positive identification of the petitioners?

In People vs. Teehankee, Jr., the Supreme Court explained the procedure for out-of-court

identification and the test to determine the admissibility of such identification, thus:

“x x x Out-of-court identification is conducted by the police in various

ways. It is done thru show-ups where the suspect alone is brought face to

face with the witness for identification. It is done thru mug shots where

photographs are shown to the witness to identify the suspect. It is also

done thru line-ups where a witness identifies the suspect from a group of

persons lined up for the purpose. Since corruption of out-of-court

identification contaminates the integrity of in-court identification during

the trial of the case, courts have fashioned out rules to assure its fairness

and its compliance with the requirements of constitutional due process.

In resolving the admissibility of and relying on out-of-court identification

of suspects, courts have adopted the totality of circumstances test where

they consider the following factors, viz: (1) the witness’ opportunity to

view the criminal at the time of the crime; (2) the witness’ degree of

attention at that time; (3) the accuracy of any prior description given by

the witness; (4) the level of certainty demonstrated by the witness at the

identification; (5) the length of time between the crime and the

identification; and (6) the suggestiveness of the identification procedure.”

Taking into consideration the foregoing test, this Court finds sufficient reasons to seriously

doubt the identification made by private respondent Pesico pointing to the petitioners as the culprits.
 First, a careful analysis of private respondent Pesico’s account would reveal that she did not

really have sufficient opportunity to view the assailants at the time of the commission of the crime. By

her own account, private respondent Pesico narrated that as they were about to enter Federico’s room,

two (2) men suddenly came out from the room and immediately stabbed Federico, while she was also

hit with a hard object on her head and body. Considering the suddenness of the attack plus the fact that

the assailants had “covers” or masks on their faces, it was certainly not possible, at that instance, that

she could have seen their faces. In a later statement which she executed four (4) days after, she

nonetheless repaired her account by explaining that while petitioners had “covers” on their faces and

while her own face was covered with towel and some pieces of clothing, she nevertheless, can still see

through them, as in fact, she saw the face of petitioner Luisito Gonzale[z] when the latter allegedly

removed the cover in his face because of the humidity inside the room. At this point, private

respondent Pesico was obviously referring at that particular instance when she was lying down on the

floor inside the dressing room. This Court entertains nagging doubts in this respect. x x x

Second, private respondent Pesico utterly missed out important details in her first narration of

the events that transpired during the commission of the crime. Significant details such as the “covers”

or masks on the faces of the assailants, the strong Visayan accent of one of the assailant, that the

television was turned “on”, that the assailants removed their masks because of the heat in the room, that

her face was covered with towel and some pieces of clothing, etc., were entirely lacking in her first

sworn statement, and were only supplied later in her second sworn statement. While her first sworn

statement undoubtedly counts as a “fresh account” of the incident, there are valid reasons to suspect

that the second sworn statement could have been tainted, if not supplied or suggested, considering the

intervening time between the execution of the first and second statements.

Third, there was little certainty in private respondent Pesico’s identification. There was no

mention at all of any distinguishing characteristics like the height, weight, built, complexion, hair,

moles, mustache, etc. of the assailants, not to mention the attire or the color of their clothing, individual

mannerisms or gestures, accessories, if any, that could perhaps specifically identify the petitioners as

the assailants. There was of course private respondent Pesico’s account that one of the assailants had a

strong Visayan accent, fierce eyes and pointed face but such was rather too general a description to
discriminate petitioners against a thousand and one suspects who would similarly possess such

description. Furthermore, while private respondent Pesico claimed to have seen the faces of both the

assailant, there was only one cartographic sketch of one suspect. Oddly enough, the cartographic

sketch does not even strike any close resemblance to the facial features of anyone of the petitioners.

Fourth, there was sufficient lapse of time between the time of the commission of the crimes

when private respondent Pesico allegedly saw the assailants and the time she made her identification.

The intervening period, i.e., four (4) days to be exact, was more than sufficient to have exposed what

was otherwise accurate and honest perception of the assailants to “extraneous influences”, which more

or less leads this Court to conclude that private respondent Pesico’s identification of the petitioners

could not have been uncontaminated. This, in light of the fact that prior to the identification, private

respondent Pesico was part of the joint inspection of the crime scene conducted by the police

investigators with the members of the Delgado family, who, at that time floated the “family feud”

theory of the case.

Fifth, this Court finds the “photo line-up” identification conducted by the police investigators to

be totally unreliable and particularly dangerous, the same being impermissibly suggestive. The

pictures shown to private respondent Pesico consisted mainly of the members of the Delgado family,

employees and close associates, let alone the fact that in the particular picture from which petitioner

Luisito Gonzale[z] was identified by private respondent Pesico as one of the assailants, he was the

only male individual. Juxtaposed with the “family feud” angle of the case, there is compelling reason

to believe that petitioner Luisito Gonzale[z] was isolated and suggested, wittingly or unwittingly, by

the police investigators as a prime suspect in the case.

In sum, this Court is of the view that petitioner Luisito Gonzale[z]’s identification was less

than trustworthy and could not have been positive but merely derivative.

xxx
 In light of the significant improbabilities, uncertainties and inconsistencies in private respondent

Pesico’s account, as well as the total unreliability of the identification she made, the petitioners’ alibi

and denial thus assume commensurate strength. Their alibi and denial assume particular importance in

this case as the same are corroborated by no less than twenty-nine (29) impartial and disinterested

witnesses. x x x Thus taking into account these 29 sworn statements, it was certainly impossible for the

petitioners to have been at the locus criminis. x x x Alibi is not always undeserving of credit, for there

are times when the accused has no other possible defense for what could really be the truth as to his

whereabouts at the crucial time, and such defense may in fact tilt the scales of justice in his favor.[38]

The Solicitor General, who is now Agnes VST Devanadera, did not appeal the

appellate court’s Amended Decision which reversed her Resolutions of 15 October 2007

and 26 October 2007 when she was Acting Secretary of Justice. In G.R. No. 184507,

the Solicitor General filed a Motion for Extension of Time to file a Petition for Review

under Rule 45 before this Court. However, the 30 day extension given had lapsed

without the filing of said petition. Thus, the Court, in a Resolution dated 8 December

2008, declared G.R. No. 184507 closed and terminated.

On 10 September 2008, respondents filed with the Court of Appeals an Urgent

Motion to Order the Amended Decision dated 29 August 2008 as Immediately

Executory.[39]

On 18 September 2008, petitioners filed a Petition for Review under Rule 45

before this Court.[40] Respondents, in connection with the Petition for Review, filed a

“Motion for the Release (On Bond, If Required).”

On 2 October 2008, the Court of Appeals issued a Resolution denying the motion

filed on 10 September 2008.[41] Thereafter, respondents filed a Motion for

Reconsideration.

Meanwhile, on 7 October 2008, the RTC issued an Order suspending the

proceedings in Criminal Case No. 07-257487 and effectively deferred the resolution of

respondents’ Motion for Reconsideration (of the Order dated 3 July 2008) pending a

decision by this Court on the Petition for Review filed by petitioners. The RTC also

ordered that both respondents remain in custody.[42]

On 5 November 2008, the Court of Appeals issued another Resolution denying

the motion for reconsideration of its 2 October 2008 Resolution, stating that with due

deference to the Supreme Court as the final arbiter of all controversies, the Court of

Appeals forbids itself from declaring the 29 August 2008 Amended Decision as

immediately executory. It held further that since an appeal by certiorari to the Supreme

Court had already been filed by petitioners, any motion for execution pending appeal

should now be filed with the Supreme Court.[43]

Hence, this petition.

On 10 December 2008, this Court conducted oral arguments to hear the respective

parties’ sides. In a Resolution dated 17 December 2008, this Court, acting upon the

“Motion for the Release (On Bond, If Required)” filed by respondents, ordered the RTC

of Manila, Branch 32, to hear respondents’ application for bail with deliberate dispatch,

since this Court is not in a position to grant bail to respondents as such grant requires

evidentiary hearing that should be conducted by the trial court where the murder case is

pending.
 On 5 January 2009, respondents filed a Motion for Reconsideration of this Court’s

Resolution dated 17 December 2008. On 16 March 2009, this Court denied the motion

for reconsideration and directed the RTC of Manila, Branch 32, to conduct a summary

hearing on bail and to resolve the same within thirty (30) days from receipt of the

resolution.

The RTC of Manila, Branch 32, issued an Order dated 27 March 2009 setting a

hearing on bail on 2 April 2009. On 7 April 2009, respondents filed with this Court a

Manifestation Waiving the “Motion for the Release (On Bond, If Required)” dated 17

November 2008. Respondents manifested that they waive and abandon their motion for

bail.

The Issues

Petitioners submit the following issues for our consideration:

1. Whether petitioners possess the legal standing to sue and whether

petitioners can be considered as the real parties in interest; that the DOJ
Secretary as represented by the Solicitor General is a mere nominal party; that
the “People” as represented by the City Prosecutor of Manila was not an
impleaded party before the Court of Appeals; that, unnotified of, and
unserved with the amended decision of the Court of Appeals, the “People” is
not bound thereby; and that, therefore, neither the Secretary of Justice nor the
“People” were called upon to appeal to the Supreme Court.[44]

2. Whether the amended decision of the Court of Appeals is final and can be
the subject of execution pending appeal.[45]

3. Whether the Court of Appeals committed reversible and whimsical errors

of law in the amended decision warranting reversal of the same [46] in view of
the following reasons:
 a. There were plain, speedy and adequate remedies available to respondents

prior to their filing of certiorari before the Court of Appeals.[47]

b. The Secretary of Justice did not commit grave abuse of discretion in her

determination of probable cause.[48]

c. The Court of Appeals strayed from the determination of grave abuse of

discretion and instead evaluated the evidence de novo, and erroneously

increased the quantum of evidence required for determining probable cause.[49]

d. The Court of Appeals erroneously substituted its judgment for the Secretary of

Justice.[50]

e. The Court of Appeals undermined the jurisdiction of the RTC over the criminal

proceedings by virtue of the filing of the Information therein.[51]

The Court’s Ruling

On petitioners’ standing to file the petition and

the finality of the Amended Decision

Petitioners contend that the parties impleaded in the Petition for Certiorari filed by
respondents before the Court of Appeals in CA-G.R. SP No. 101196 were Acting
Secretary Devanadera, Heirs of Federico C. Delgado and Annalisa D. Pesico. The
“People of the Philippines” was never made as one of the parties and neither was it
notified through the City Prosecutor of Manila.[52] Petitioners claim that in criminal
proceedings where the only issue is probable cause or grave abuse of discretion in
relation thereto, the private complainant and the private respondent are the parties. In
such proceedings, the “People of the Philippines” is not yet involved as it becomes a
party to the main criminal proceedings only when the Information is filed with the trial
court.[53]

Petitioners allege that although Informations were filed before the lower courts

after respondents filed a Petition for Review with the Court of Appeals, it does not

change the reality that all the proceedings before the DOJ, Court of Appeals and this

Court involve only the issues on (1) probable cause, (2) the alleged grave abuse of

discretion by the Acting Secretary of Justice, and (3) the reversible errors of law and

grave abuse of discretion on the part of the Court of Appeals in promulgating the

assailed Amended Decision.

It is petitioners’ contention that while the Acting Secretary of Justice is a public

respondent, she is at best a nominal or pro forma party. Hence, the Solicitor General

had no obligation to appeal the case to this Court to represent the Secretary of Justice as

a nominal party.[54] Further, the Solicitor General’s non-participation in this case is not a

fatal defect that jeopardizes petitioners’ legal standing as complainants in the

preliminary investigation proceedings, appellants before the Secretary of Justice,

respondents in the Court of Appeals and petitioners before this Court.[55]

Petitioners state that they are the real parties in interest who can naturally be

expected to file a case for the death of their brother. Citing Narciso v. Sta. Romana-

Cruz,[56] petitioners claim that a sister of the deceased is a proper party-litigant who is

akin to the offended party.

Respondents argue that petitioners cannot claim that the instant proceeding is not

part of the criminal case proper because the preliminary investigation has already been
concluded.[57] Quoting Section 9 of the 2000 National Prosecution Service Rule on

Appeal,[58] respondents claim that an information may be filed even if the review of the

resolution by the Secretary of Justice is still available. The preliminary investigation,

having been concluded, the private offended parties no longer have the personality to

participate by themselves in the succeeding proceedings. Respondents insist that when

petitioners asserted their right to prosecute a person for a crime, through the filing of an

information, the State, through its prosecutorial arm, is from that point on, the only real

party in interest.[59]

Respondents maintain that only the Solicitor General may represent the State in

appellate proceedings of a criminal case. [60] The Acting Secretary of Justice cannot be

properly characterized as a nominal party because it is the real party in interest, whose

right to prosecute offenses is at stake. The Acting Secretary of Justice, in issuing a

resolution that there is probable cause to charge a person with an offense, asserts the

right of the State to prosecute a person for the commission of a crime.[61] Thus, the

participation of the private offended parties before the Court of Appeals is not necessary

for complete relief to be had, and it is certainly not indispensable for a final

determination of the case.[62]

Section 35, Chapter 12, Title III, Book IV of the Administrative Code of 1987

states that the Office of the Solicitor General shall represent the Government of the

Philippines, its agencies and instrumentalities and its officials and agents in any

litigation, proceeding, investigation or matter requiring the services of lawyers.

Likewise, the Solicitor General shall represent the Government in the Supreme Court

and the Court of Appeals in all criminal proceedings, thus:

 Section 35. Powers and Functions. — The Office of the Solicitor

General shall represent the Government of the Philippines, its agencies and

instrumentalities and its officials and agents in any litigation, proceeding,

investigation or matter requiring the services of lawyers. When authorized

by the President or head of the office concerned, it shall also represent

government owned or controlled corporations. The Office of the Solicitor

General shall constitute the law office of the Government and, as such,

shall discharge duties requiring the services of lawyers. It shall have the

following specific powers and functions:

(1) Represent the Government in the Supreme Court and the Court of

Appeals in all criminal proceedings ; represent the Government and its officers in the

Supreme Court, the Court of Appeals, and all other courts or tribunals in all civil actions

and special proceedings in which the Government or any officer thereof in his official

capacity is a party. (Emphasis supplied)

The law clearly requires the Office of the Solicitor General to represent the
Government in the Supreme Court in all criminal proceedings before this Court. As in
every case of statutory construction, we begin our analysis by looking at the plain and
literal language of the term “criminal proceeding.” Criminal proceeding is defined as “a
proceeding instituted to determine a person’s guilt or innocence or to set a convicted
person’s punishment.”[63] Proceeding is defined as “any procedural means for seeking
redress from a tribunal or agency. It is the business conducted by a court or other official
body.”[64]

Section 1(a) of Rule 110 of the Rules of Court provides:

 Section 1. Institution of criminal actions. — Criminal actions shall be

instituted as follows:

(a) For offenses where a preliminary investigation is required pursuant to section 1 of Rule 112,

by filing the complaint with the proper officer for the purpose of conducting the requisite preliminary

investigation.

It should be observed that a criminal action shall be instituted by filing the

complaint with the proper officer for the purpose of conducting the preliminary
investigation. In this case, the criminal action was instituted when Alejandro Yanquiling,
Jr., Chief of the Homicide Section of the MPD filed the Complaint-Affidavit with the
Office of the City Prosecutor of Manila.[65] The Complaint-Affidavit was supported by
Pesico’s sworn statement, affidavit of consent from the heirs of Delgado, crime report,
progress report, SOCO report, and cartographic sketch.[66]

Preliminary investigation, although an executive function, is part of a criminal

proceeding. In fact, no criminal proceeding under the jurisdiction of the Regional Trial

Court is brought to trial unless a preliminary investigation is conducted. We explained,

thus:

‘ [T]he right to have a preliminary investigation conducted before being

bound over for 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.’ A preliminary investigation should therefore be

scrupulously conducted so that the constitutional right to liberty of a

potential accused can be protected from any material damage.[67]

 In Ricafort v. Fernan,[68] this Court had the occasion to rule:

As stated by counsel for the respondents, the petition herein is an offshoot, an

incident of said criminal case for qualified theft. For all purposes, therefore, it is a

continuation of that case and partakes of the nature of a criminal proceeding. This being

so, the party defeated by the order of the respondent Judge dismissing the information in

Criminal Case No. 2819 of the court of First Instance of Davao must be the People of

the Philippines and not the petitioner, the complaining witness. Consequently, the proper

party to bring this petition is the State and the proper legal representation should be the

Solicitor General and not the attorney for the complaining witness who was the private

prosecutor in said Criminal Case No. 2819. It is true that under the Rules of Court the

offended party may take part in the prosecution of criminal cases and even appeal in

certain instances from the order or judgment of the courts, but this is only so in cases

where the party injured has to protect his pecuniary interest in connection with the civil

liability of the accused. Petitioner did not institute the case at bar for the purpose of

protecting his pecuniary interest as supposed offended party of the crime charged in the

information that was dismissed, but to cause the restoration of the case and to have it

tried as if nothing had happened. This, certainly, falls within the province of the

representative of the People who in this case has not appealed nor joined the private

prosecutor in bringing this case before Us.

Based on the above discussion, the term criminal proceeding includes preliminary
investigation. In any event, this issue is academic because on 30 October 2007, the
Informations against respondents were filed with the trial court. Petitioners admit that
the “People of the Philippines” becomes a party in interest in a criminal proceeding
when an information is filed with the trial court.

We have ruled in a number of cases[69] that only the Solicitor General may bring or

defend actions in behalf of the Republic of the Philippines, or represent the People or

State in criminal proceedings before the Supreme Court and the Court of Appeals.
However, jurisprudence lays down two exceptions where a private complainant or

offended party in a criminal case may file a petition directly with this Court. The two

exceptions are: (1) when there is denial of due process of law to the prosecution and the

State or its agents refuse to act on the case to the prejudice of the State and the private

offended party,[70] and (2) when the private offended party questions the civil aspect of a

decision of a lower court.[71]

The first exception contemplates a situation where the State and the offended

party are deprived of due process because the prosecution is remiss in its duty to protect

the interest of the State and the offended party. This Court recognizes the right of the

offended party to appeal an order of the trial court which denied him and the State of

due process of law.

In Merciales v. Court of Appeals,[72] this Court granted the petition of the offended

party and ruled as invalid the dismissal of the case in the trial court for lack of a

fundamental prerequisite, that is, due process. The public prosecutor who handled the

case deliberately failed to present an available witness which led the trial court to

declare that the prosecution had rested its case. In this sense, the public prosecutor was

remiss in his duty to protect the interest of the offended party. As a result, the public

prosecutor was found guilty of blatant error and abuse of discretion, causing prejudice to

the offended party. The trial court was likewise found guilty for serious nonfeasance for

passively watching the public prosecutor bungle the case notwithstanding its knowledge

that the evidence for the prosecution was insufficient to convict and it could have, motu

proprio, called for additional witnesses. Thus, petitioner, who was the mother of the

private offended party in the criminal cases for rape with homicide, had been deprived

of her day in court. She could do nothing during the proceedings, having entrusted the
conduct of the case in the hands of the public prosecutor. All she could do was

helplessly watch as the public prosecutor, who was under legal obligation to pursue the

action on the family’s behalf, renege on that obligation and refuse to perform his sworn

duty. This Court explained that it is not only the State, but also the offended party, that

is entitled to due process in criminal cases. The issue on whether private complainant

can bring an action was, however, rendered moot when the Solicitor General, in

representation of the People, changed his position and joined the cause of petitioner,

thus fulfilling the requirement that all criminal actions shall be prosecuted under the

direction and control of the public prosecutor.

Likewise, in People v. Nano,[73] this Court took cognizance of the offended party’s

petition because of the gravity of the error committed by the judge against the

prosecution resulting in denial of due process. Aside from the denial of due process,

the Solicitor General also manifested to adopt the petition as if filed by his office. Thus,

we ruled in Nano:

The petition being defective in form, the Court could have summarily dismissed

the case for having been filed merely by private counsel for the offended parties, though

with the conformity of the provincial prosecutor, and not by the Solicitor General.

While it is the public prosecutor who represents the People in criminal cases before the

trial courts, it is only the Solicitor General that is authorized to bring or defend actions

in behalf of the People or Republic of the Philippines once the case is brought up before

this Court or the Court of Appeals (People v. Calo, 186 SCRA 620 [1990]; citing

Republic v. Partisala, 118 SCRA 320 [1982]; City Fiscal of Tacloban v. Espina, 166

SCRA 614 [1988]). Defective as it is, the Court, nevertheless, took cognizance of

the petition in view of the gravity of the error allegedly committed by the

respondent judge against the prosecution – denial of due process – as well as the

manifestation and motion filed by the Office of the Solicitor General praying that
 the instant petition be treated as if filed by the said office. In view thereof, We now

consider the People as the sole petitioner in the case duly represented by the Solicitor

General. Payment of legal fees is therefore no longer necessary in accordance with Sec.

16, Rule 141 of the Rules of Court. (Emphasis supplied)

In the second exception, it is assumed that a decision on the merits had already

been rendered by the lower court and it is the civil aspect of the case which the offended

party is appealing. The offended party, who is not satisfied with the outcome of the

case, may question the amount of the grant or denial of damages made by the court

below even without the participation of the Solicitor General.

In Mobilia Products, Inc. v. Umezawa,[74] we ruled that in criminal cases, the State

is the offended party. Private complainant’s interest is limited to the civil liability arising

therefrom. We explained:

Hence, if a criminal case is dismissed by the trial court or if there is

an acquittal, a reconsideration of the order of dismissal or acquittal may be

undertaken, whenever legally feasible, insofar as the criminal aspect thereof

is concerned and may be made only by the public prosecutor; or in the case

of an appeal, by the State only, through the OSG. The private complainant

or offended party may not undertake such motion for reconsideration or

appeal on the criminal aspect of the case. However, the offended party or

private complainant may file a motion for reconsideration of such dismissal

or acquittal or appeal therefrom but only insofar as the civil aspect thereof

is concerned.

In De la Rosa v. Court of Appeals,[75] citing People v. Santiago,[76] we held:

 In a special civil action for certiorari filed under Section 1, Rule 65

of the Rules of Court wherein it is alleged that the trial court committed a

grave abuse of discretion amounting to lack of jurisdiction or on other

jurisdictional grounds, the rules state that the petition may be filed by the

person aggrieved. In such case, the aggrieved parties are the State and the

private offended party or complainant. The complainant has an interest in

the civil aspect of the case so he may file such special civil action

questioning the decision or action of the respondent court on jurisdictional

grounds. In so doing, complainant should not bring the action in the name

of the People of the Philippines. The action may be prosecuted in (the)

name of said complainant.

These two exceptions do not apply in this case.

In the Memorandum, petitioners allege that the Court of Appeals committed

reversible and whimsical errors of law in the Amended Decision. Petitioners raised the

following errors:

a. There were plain, speedy and adequate remedies available to

respondents prior to their filing of certiorari before the Court of Appeals.[77]
b. The Secretary of Justice did not commit grave abuse of discretion in her

determination of probable cause.[78]

c. The Court of Appeals strayed from the determination of grave abuse of

discretion and instead evaluated the evidence de novo, and erroneously increased the

quantum of evidence required for determining probable cause.[79]

d. The Court of Appeals erroneously substituted its judgment for the Secretary of

Justice.[80]
 e. The Court of Appeals undermined the jurisdiction of the RTC over
the criminal proceedings by virtue of the filing of the Information therein.[81]

Petitioners do not claim that the failure of the Solicitor General to appeal the
Court of Appeals’ decision before this Court resulted in the denial of due process to the
State and the petitioners. Petitioners do not assert that the prosecution and the Solicitor
General were remiss in their duty to protect the interest of the State and the offended
party. Neither do petitioners claim that the Solicitor General is guilty of blatant error or
abuse of discretion in not appealing the Court of Appeals’ decision.

The Solicitor General did not manifest to adopt petitioners’ appeal before this

Court. On the contrary, the Solicitor General manifested on 3 December 2008 its

refusal to participate in the oral arguments of this case held on 10 December 2008. This

Court cannot take cognizance of the petition because there is clearly no denial of due

process to the State and the petitioners. In short, the first exception does not apply

because petitioners do not claim, and neither is there any showing in the records, that the

State and the petitioners have been denied due process in the prosecution of the criminal

cases.

The Solicitor General, on 19 September 2008, had filed before this Court a

Motion for Extension of Time to file a Petition for Review under Rule 45, docketed as

G.R. No. 184507. However, the 30-day extension given had lapsed without the filing of

the petition.[82] Consequently, this Court, in a Resolution dated 8 December 2008,

declared G.R. No. 184507 closed and terminated.

Petitioners are also not appealing the civil aspect of the criminal case since the
lower courts had not yet decided the merits of the case. In People v. Santiago,[83] this
Court explained that in criminal cases where the offended party is the State, the interest
of the private offended party is limited to the civil liability. If a criminal case is
dismissed by the trial court or if there is an acquittal, an appeal from the criminal aspect
may be undertaken only by the State through the Solicitor General. Only the Solicitor
General may represent the People of the Philippines on appeal. The private complainant
or offended party may not appeal the criminal, but only the civil, aspect of the case.

Here, since there was no decision promulgated on the merits by the lower court

and the Informations had been quashed, petitioners have nothing to appeal on the civil

aspect that is deemed impliedly instituted with the criminal cases. There is no longer

any criminal case on which a civil case can be impliedly instituted. Petitioners’ recourse

is to file an independent civil action on their own.

On 31 March 2009, the Solicitor General filed a Motion for Leave to Admit

Attached Comment in G.R. No. 184337.[84] The Solicitor General reasoned that she opted

not to file a petition for review in G.R. No. 184507 because she learned that a similar

petition was filed before she could prepare the intended petition for review. In her

comment, the Solicitor General stated that she is not a direct party to the case. However,

the Solicitor General alleged that she would file a comment as it is undeniable that she

issued the Resolutions of the Department of Justice at the time she held the position of

Acting Secretary of Justice concurrent with her being the Solicitor General. The

Solicitor General submitted that her position on the issue of probable cause should be

heard.

On 17 April 2009, respondents filed an Opposition and Motion to Strike “Motion

for Leave to Admit Attached Comment” and “Comment.” Respondents contended that

the Solicitor General is not a party to the case and has no personality to participate in

any manner. Respondents claimed that the Solicitor General failed to file a Petition for

Review on Certiorari within the prescribed period and she cannot now use a “Comment”
as a substitute for a lapsed appeal.

In a Resolution dated 1 June 2009, this Court expunged from the records the

motion for leave to admit attached comment and the aforesaid comment filed by the

Solicitor General. The Court ruled that the Solicitor General is not a party in G.R. No.

184337.

We reiterate that it is only the Solicitor General who may bring or defend actions

on behalf of the State in all criminal proceedings before the appellate courts. Hence, the

Solicitor General’s non-filing of a petition within the reglementary period before this

Court rendered the assailed decision of the Court of Appeals final and executory with

respect to the criminal aspect of the case. The Solicitor General cannot trifle with court

proceedings by refusing to file a petition for review only to subsequently, after the lapse

of the reglementary period and finality of the Amended Decision, file a comment.

In view of our holding that petitioners have no standing to file the present petition,

we shall no longer discuss the other issues raised in this petition.

WHEREFORE, we DENY the petition. We AFFIRM the 29 August 2008

Amended Decision of the Court of Appeals in CA-G.R. SP No. 101196. No

pronouncement as to costs.

SO ORDERED.

ANTONIO T. CARPIO
 Associate Justice

WE CONCUR:

CONCHITA CARPIO MORALES

Associate Justice

PRESBITERO J. VELASCO, JR. TERESITA J. LEONARDO-

 Associate Justice DE CASTRO

Associate Justice

LUCAS P. BERSAMIN

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in

consultation before the case was assigned to the writer of the opinion of the Court’s

Division.

ANTONIO T. CARPIO

Associate Justice
 Chairperson, First Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division

Chairperson’s Attestation, I certify that the conclusions in the above Decision had been

reached in consultation before the case was assigned to the writer of the opinion of the

Court’s Division.

REYNATO S. PUNO

Chief Justice