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Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-53373 June 30, 1987 MARIO FL.

CRESPO, petitioner, vs. HON. LEODEGARIO L. MOGUL, Presiding Judge, CIRCUIT CRIMINAL COURT OF LUCENA CITY, 9th Judicial Dist., THE PEOPLE OF THE PHILIPPINES, represented by the SOLICITOR GENERAL, RICARDO BAUTISTA, ET AL., respondents.

GANCAYCO, J.: The issue raised in this ease is whether the trial court acting on a motion to dismiss a criminal case filed by the Provincial Fiscal upon instructions of the Secretary of Justice to whom the case was elevated for review, may refuse to grant the motion and insist on the arraignment and trial o n the merits. On April 18, 1977 Assistant Fiscal Proceso K. de Gala with the approval of the Provincial Fiscal filed an information for estafa against Mario Fl. Crespo in the Circuit Criminal Court of Lucena City which was docketed as Criminal Case No. CCCIX-52 (Quezon) '77.1 When the case was set for arraigment the accused filed a motion to defer arraignment on the ground that there was a pending petition for review filed with the Secretary of Justice of the resolution of the Office of the Provincial Fiscal for the filing of the information. In an order of August 1, 1977, the presiding judge, His Honor, Leodegario L. Mogul, denied the motion. 2 A motion for reconsideration of the order was denied in the order of August 5, 1977 but the arraignment was deferred to August 18, 1977 to afford nine for petitioner to elevate the matter to the appellate court. 3 A petition for certiorari and prohibition with prayer for a preliminary writ of injunction was filed by the accused in the Court of Appeals that was docketed as CAG.R. SP No. 06978. 4 In an order of August 17, 1977 the Court of Appeals restrained Judge Mogul from proceeding with the arraignment of the accused until further orders of the Court. 5 In a comment that was filed by the Solicitor General he recommended that the petition be given due course. 6 On May 15, 1978 a decision was rendered by the Court of Appeals granting the writ and perpetually restraining the judge from enforcing his threat to compel the arraignment of the accused in the case until the Department of Justice shall have finally resolved the petition for review. 7 On March 22, 1978 then Undersecretary of Justice, Hon.CatalinoMacaraig, Jr., resolving the petition for review reversed the resolution of the Office of the Provincial Fiscal and directed the fiscal to move for immediate dismissal of the information filed against the accused. 8 A motion to dismiss for insufficiency of evidence was filed by the Provincial Fiscal dated April 10, 1978 with the trial court, 9 attaching thereto a copy of the letter of Undersecretary Macaraig, Jr. In an order of August 2, 1978 the private prosecutor was given time to file an opposition thereto. 10 On November 24, 1978 the Judge denied the motion and set the arraigniment stating: ORDER For resolution is a motion to dismiss this rase filed by the procuting fiscal premised on insufficiency of evidence, as suggested by the Undersecretary of Justice, evident from Annex "A" of the motion wherein, among other things, the Fiscal is urged to move for dismissal for the reason that the check involved having been issued for the payment of a pre-existing obligation the Hability of the drawer can only be civil and not criminal. The motion's thrust being to induce this Court to resolve the innocence of the accused on evidence not before it but on that adduced before the Undersecretary of Justice, a matter that not only disregards the requirements of due process but also erodes the Court's independence and integrity, the motion is considered as without merit and therefore hereby DENIED. WHEREFORE, let the arraignment be, as it is hereby set for December 18, 1978 at 9:00 o'clock in the moming. SO ORDERED. 11 The accused then filed a petition for certiorari, prohibition and mandamus with petition for the issuance of preliminary writ of prohibition and/or temporary restraining order in the Court of Appeals that was docketed as CA-G.R. No. SP-08777. 12 On January 23, 1979 a restraining order was issued by the Court of Appeals against the threatened act of arraignment of the accused until further orders from the Court. 13 In a decision of October 25, 1979 the Court of Appeals dismissed the petition and lifted the restraining order of January 23, 1979. 14 A motion for reconsideration of said decision filed by the accused was denied in a resolution of February 19, 1980.15 Hence this petition for review of said decision was filed by accused whereby petitioner prays that said decision be reversed and set aside, respondent judge be perpetually enjoined from enforcing his threat to proceed with the arraignment and trial of petitioner in said criminal case, declaring the information filed not valid and of no legal force and effect, ordering respondent Judge to dismiss the said case, and declaring the obligation of petitioner as purely civil. 16 In a resolution of May 19, 1980, the Second Division of this Court without giving due course to the petition required the respondents to comment to the petition, not to file a motiod to dismiss, within ten (10) days from notice. In the comment filed by the Solicitor General he recommends that the petition be given due course, it being meritorious. Private respondent through counsel filed his reply to the comment and a separate conunent to the petition asking that the petition be dismissed. In the resolution of February 5, 1981, the Second Division of this Court resolved to transfer this case to the Court En Banc. In the resolution of February 26, 1981, the Court En Banc resolved to give due course to the petition.

Petitioner and private respondent filed their respective briefs while the Solicitor General filed a Manifestation in lieu of brief reiterating that the decision of the respondent Court of Appeals be reversed and that respondent Judge be ordered to dismiss the information. It is a cardinal principle that an criminal actions either commenced by complaint or by information shall be prosecuted under the direction and control of the fiscal. 17 The institution of a criminal action depends upon the sound discretion of the fiscal. He may or may not file the complaint or information, follow or not fonow that presented by the offended party, according to whether the evidence in his opinion, is sufficient or not to establish the guilt of the accused beyond reasonable doubt. 18 The reason for placing the criminal prosecution under the direction and control of the fiscal is to prevent malicious or unfounded prosecution by private persons. 19 It cannot be controlled by the complainant. 20 Prosecuting officers under the power vested in them by law, not only have the authority but also the duty of prosecuting persons who, according to the evidence received from the complainant, are shown to be guilty of a crime committed within the jurisdiction of their office. 21 They have equally the legal duty not to prosecute when after an investigation they become convinced that the evidence adduced is not sufficient to establish a prima facie case. 22 It is through the conduct of a preliminary investigation 23 that the fiscal determines the existence of a puma facie case that would warrant the prosecution of a case. The Courts cannot interfere with the fiscal's discretion and control of the criminal prosecution. It is not prudent or even permissible for a Court to compel the fiscal to prosecute a proceeding originally initiated by him on an information, if he finds that the evidence relied upon by him is insufficient for conviction. 24 Neither has the Court any power to order the fiscal to prosecute or file an information within a certain period of time, since this would interfere with the fiscal's discretion and control of criminal prosecutions. 25 Thus, a fiscal who asks for the dismissal of the case for insufficiency of evidence has authority to do so, and Courts that grant the same commit no error. 26 The fiscal may re-investigate a case and subsequently move for the dismissal should the re-investigation show either that the defendant is innocent or that his guilt may not be established beyond reasonable doubt. 27 In a clash of views between the judge who did not investigate and the fiscal who did, or between the fiscal and the offended party or the defendant, those of the Fiscal's should normally prevail. 28 On the other hand, neither an injunction, preliminary or final nor a writ of prohibition may be issued by the courts to restrain a criminal prosecution 29 except in the extreme case where it is necessary for the Courts to do so for the orderly administration of justice or to prevent the use of the strong arm of the law in an op pressive and vindictive manner. 30 However, the action of the fiscal or prosecutor is not without any limitation or control. The same is subject to the approval of the provincial or city fiscal or the chief state prosecutor as the case maybe and it maybe elevated for review to the Secretary of Justice who has the power to affirm, modify or reverse the action or opinion of the fiscal. Consequently the Secretary of Justice may direct that a motion to dismiss the rase be filed in Court or otherwise, that an information be filed in Court. 31 The filing of a complaint or information in Court initiates a criminal action. The Court thereby acquires jurisdiction over the case, which is the authority to hear and determine the case. 32 When after the filing of the complaint or information a warrant for the arrest of the accused is issued by the trial court and the accused either voluntarily submited himself to the Court or was duly arrested, the Court thereby acquired jurisdiction over the person of the accused. 33 The preliminary investigation conducted by the fiscal for the purpose of determining whether a prima facie case exists warranting the prosecution of the accused is terminated upon the filing of the information in the proper court. In turn, as above stated, the filing of said informatio n sets in motion the criminal action against the accused in Court. Should the fiscal find it proper to conduct a reinvestigation of the case, at such stage, the permission of the Court must be secured. After such reinvestigation the finding and recommendations of the fiscal should be submitted to the Court for appropriate action. 34 While it is true that the fiscal has the quasi judicial discretion to determine whether or not a criminal case should be filed in court or not, once the case had already been brought to Court whatever disposition the fiscal may feel should be proper in the rase thereafter should be addressed for the consideration of the Court, 35 The only qualification is that the action of the Court must not impair the substantial rights of the accused. 36 or the right of the People to due process of law. 36a Whether the accused had been arraigned or not and whether it was due to a reinvestigation by the fiscal or a review by the Secretary of Justice whereby a motion to dismiss was submitted to the Court, the Court in the exercise of its discretion may grant the motion or deny it and require that the trial on the merits proceed for the proper determination of the case. However, one may ask, if the trial court refuses to grant the motion to dismiss filed by the fiscal upon the directive of the Secretary of Justice will there not be a vacuum in the prosecution? A state prosecutor to handle the case cannot possibly be designated by the Secretary of Justice who does not believe that there is a basis for prosecution nor can the fiscal be expected to handle the prosecution of the case thereby defying the superior order of the Secretary of Justice. The answer is simple. The role of the fiscal or prosecutor as We all know is to see that justice is done and not necessarily to secure the conviction of the person accused before the Courts. Thus, in spite of his opinion to the contrary, it is the duty of the fiscal to proceed with the presentation of evidence of the prosecution to the Court to enable the Court to arrive at its own independent judgment as to whether the accused should be convicted or acquitted. The fiscal should not shirk from the responsibility of appearing for the People of the Philippines even under such circumstances much less should he abandon the prosecution of the case leaving it to the hands of a private prosecutor for then the entire proceedings will be null and void. 37 The least that the fiscal should do is to continue to appear for the prosecution although he may turn over the presentation of the evidence to the private prosecutor but still under his direction and control. 38 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 w hat 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. 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, the petition is DISMISSED for lack of merit without pronouncement as to costs. SO ORDERED.

Yap, Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Padilla, Bidin, Sarmiento and Cortes, JJ., concur.Teehankee, C.J., took no part.

SECOND DIVISION

[G.R. No. 158211. August 31, 2004]

ERNESTO J. SAN AGUSTIN, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent. DECISION CALLEJO, SR., J.: This is a petition for review on certiorari filed by Ernesto J. San Agustin of the Decision[1] of the Court of Appeals in CA-G.R. SP No. 71925 dismissing his petition for certiorari.

The Antecedents

Luz Tan executed a notarized criminal complaint and filed the same with the National Bureau of Investigation (NBI) charging the petitioner, the Barangay Chairman of Barangay La Huerta, Paraaque City, with serious illegal detention alleging that the petitioner detained her husband Vicente Tan, on June 19, 2002, without lawful ground therefor.[2] On June 25, 2002, the petitioner received a subpoena from Ferdinand M. Lavin, the Chief of the Anti-Organized Crime Division of the NBI, requiring him to appear before said office the next day, on June 26, 2002, in order to give his evidence in connection with said complaint and to bring with him the barangay logbook for June 19, 2002. The petitioner complied with the subpoena and presented himself at the NBI with the barangay logbook. However, the petitioner was placed under arrest and prevented from going back home. On June 27, 2002, the NBI Director transmitted to the Department of Justice the findings of the NBI on its investigation of the case: On June 19, 2002 at around 9:00 oclock in the morning while Victim RICARDO TAN and Witness ANTONIO GERONIMO were selling the ir wares of kitchen utensils along the highway of La Huerta, Paraaque City, Victim TAN was mistaken as a snatcher by two tricycle drivers, namely, ROME O C. ALCANTARA and JOSEFINO FERRER, JR. Victim was turned-over to Subject SAN AGUSTIN and other Subjects at the Barangay Hall of La Huerta, Paraaque City; witness GERONIMO followed them. GERONIMO witnessed that Victim was beaten by Subjects and locked-up at the Barangay jail so he decided to inform the wife of the Victim (Complainant) who was residing in San Pedro, Laguna. When Complainant went to the Barangay Hall on the same day and inquired on the whereabouts of his husband, two female clerks thereat denied having seen the Victim. Complainant was able to talk to Subject SAN AGUSTIN the following day but he also denied having seen Victim, worst Subject SAN AGUSTIN was furious and even shouted at them and brought out his knife. Up to date, Victim, never resurfaced nor his whereabouts located. Record at the NBI central file of Subject SAN AGUSTIN revealed that he has several cases of homicide, murder and multiple murder.[3] The NBI Director stated that the basis for the arrest of the petitioner was: BASIS OF ARREST: Subject SAN AGUSTIN was subpoenaed to appear before the NBI-AOCD to controvert allegations filed against him for kidnapping by Ms. Luz Tan. He was enjoined to come with his Counsel and bring the logbook of the Barangay. When Subject appeared at the NBI, he presented at once the logbook of the Barangay. It was noted at the said logbook that there was no entry on June 19, 2002 that Victim RICARDO TAN was arrested or transmitted to any law enforcement agency or proper authority.[4] State Prosecutor Elizabeth L. Berdal conducted an inquest investigation on June 27, 2002 and came out with a Resolution, on the same day, affirmed by the Assistant Chief State Prosecutor, finding probable cause against the petitioner for serious illegal detention under Article 267 of the Revised Penal Code. [5] On June 28, 2002, an Information was filed before the Regional Trial Court of Paraaque City, charging the petitioner with kidnapping/serious illegal detention with no bail recommended. The case was raffled to Branch 258 of the court and docketed as Criminal Case No. 02 -0759. On July 1, 2002, the petitioner filed a Motion to Quash the Information on the ground that he was illegally arrested and subjected to an inquest investigation; hence, he was deprived of his right to a preliminary investigation. He also prayed that he be released from detention and that, in the meantime, the NBI be ordered to refile the complaint against him with

the Office of the Paraaque City Prosecutor and for the latter to conduct a preliminary investigation. On July 4, 2002, the petitioner filed a Motion to Quash the Information, this time, on the ground that the facts alleged therein do not constitute the felony of kidnapping/serious illegal detention. He claimed that he was a barangay chairman when the private complainant was allegedly detained; hence, he should be charged only with arbitrary detention, the most severe penalty for which isreclusion temporal . The prosecution opposed the petitioners motion to quash the Information on the ground that when he detained the private comp lainant, he acted in his private capacity and not as a barangay chairman.[6] On July 24, 2002, the RTC issued an Order directing the City Prosecutor to conduct a reinvestigation within a non-extendible period of forty-five (45) days.[7] Assistant City Prosecutor Antonietta Pablo Medina was assigned to conduct the reinvestigation. The petitioner opposed the reinvestigation contending that the prosecutor should conduct a regular preliminary investigation since the inquest investigation was void. He refused to submit a counter-affidavit. On July 31, 2002, the petitioner filed a petition for certiorari with the Court of Appeals assailing the July 24, 2002 Order of the RTC. He raised in his petition the following issues: 1. Whether or not respondent Judge De Leon acted arbitrarily and in grave abuse of discretion in not granting petitioners U rgent Motion to Quash Information dated 01 July 2002. 2. Whether or not respondent Judge De Leon acted arbitrarily and in grave abuse of discretion in not granting petitioners U rgent Motion to Quash On The Ground That The Facts Charged Do Not Constitute An Offense dated 04 July 2002. 3. Whether or not respondent Judge De Leon acted arbitrarily and in grave abuse of discretion in not granting bail as a matter of right in favor of the petitioner. 4. Whether or not respondent Judge Jose S. Jacinto, Jr. of the Metropolitan Trial Court of Paraaque, Branch 77, can validly and legally proceed with the hearing of Criminal Case No. 02-2486.[8] In the meantime, on August 27, 2002, the Assistant City Prosecutor came out with a Resolution finding probable cause of arbitrary detention against the petitioner and recommending that the Information for arbitrary detention and the Motion to Withdraw Information appended ther eto be approved.[9] The City Prosecutor opposed the said Resolution. On August 28, 2002, the Assistant City Prosecutor filed with the trial court a Motion to Withdraw Information.[10] On August 30, 2002, the RTC issued an Order granting the motion and considered the Information withdrawn. On the same day, an Information was filed with the Metropolitan Trial Court (MeTC) docketed as Criminal Case No. 02-2486, charging the petitioner with arbitrary detention, viz: That on or about the 19th day of June 2002 and subsequent thereto, in the City of Paraaque, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, being a Barangay Chairman of Brgy. La Huerta, Paraaque City, a public officer, committing the offense in relation to office, did then and there willfully, unlawfully and feloniously detain one RICARDO TAN, an act done as he well knew, arbitrary and without legal ground ( sic). CONTRARY TO LAW.[11] The case was raffled to Branch 77 of the court. The petitioner posted a cash bond of P3,000.00 for his provisional release without prejudice to the outcome of his petition in the Court of Appeals.[12] On April 15, 2003, the Court of Appeals rendered its decision denying due course and dismissing the petition for certiorari of the petitioner. The petitioner filed the petition at bar contending that: 4.1 THE COURT OF APPEALS SERIOUSLY ERRED IN FINDING THAT NO GRAVE ABUSE OF DISCRETION WAS COMMITTED BY JUDGE RAUL E. DE LEON WHEN HE DENIED PETITIONERS URGENT MOTION TO QUASH INFORMATION DATED JULY 01, 2002. 4.2. THE COURT OF APPEALS SERIOUSLY ERRED IN FINDING THAT NO GRAVE ABUSE OF DISCRETION WAS COMMITTED BY JUDGE RAUL E. DE LEON WHEN HE DENIED PETITIONERS URGENT MOTION TO QUASH ON THE GROUND THAT THE FACTS CHARGED DO NOT CONSTITUTE AN OFFENSE DATED 04 JULY 2002. 4.3. THE COURT OF APPEALS SERIOUSLY ERRED IN FINDING THAT NO GRAVE ABUSE OF DISCRETION WAS COMMITED BY JUDGE RAUL E. DE LEON WHEN HE DENIED PETITIONER OF HIS CONSTITUTIONALLY-GUARANTEED RIGHT TO BAIL. 4.4. THE COURT OF APPEALS SERIOUSLY ERRED IN HOLDING THAT JUDGE JOSE S. JACINTO OF THE METROPOLITAN TRIAL COURT OF PARAAQUE, BRANCH, (sic) CAN VALIDLY AND LEGALLY PROCEED WITH THE HEARINGS IN CRIMINAL CASE NO. 02-2486.[13] The petitioner asserts that he was illegally arrested by the NBI; hence, he was entitled to a regular preliminary investigation, not merely to an inquest investigation. He contends that since the Information charging him with kidnapping/serious illegal detention was filed before the Regional Trial Court without affording him a preliminary investigation, the Information is void. The RTC, the petitioner avers, should have granted his motion to quash the Information and ordered the NBI to refile its complaint against him with the Office of the City Prosecutor of Paraaque for the appropriate preliminary investigation and that, in the meantime, the RTC should have ordered his release from detention. The petitioner posits that the RTC committed a grave abuse of its discretion amounting to excess or lack of jurisdiction in denying his motion to quash the Information and directing the City Prosecutor to conduct a reinvestigation. On the other hand, since the Assistant City Prosecutor did not conduct a regular preliminary investigation before filing the Information for arbitrary detention against him with the MeTC, the Information is void. Hence, the MeTC should be ordered to quash the Information filed therein. In its Comment to the petition, the Office of the Solicitor General (OSG) contends that the petition for certiorari of the petitioner in the Court of Appeals and in this Court had become moot and academic by the withdrawal of the Information from the Regional Trial Court and filing of the Information for arbitrary detention against the petitioner in the MTC. The inquest investigation conducted by the State Prosecutor was valid because the petitioner refused to execute a waiver under Article 125 of the Revised Penal Code. The OSG asserts that the investigation conducted by the Assistant City Prosecutor, as directed by the RTC, was valid. The petitioner is estopped from assailing the Resolution of the Assistant City Prosecutor finding probable cause for arbitrary detention because of his failure to submit his counter-affidavit.

The Court of Appeals ruled that the petitioner was unlawfully arrested; hence, he was entitled to preliminary investigation and release from detention subject to his appearance during the preliminary investigation. However, the Court of Appeals declared that the lack of preliminary investigation did not impair the validity of the Information filed with the RTC. Moreover, the Court of Appeals declared that the petitioner had already been granted a reinvestigation after which the Information filed with the RTC was withdrawn. Consequently, the appellate court further declared that the petition had been mooted by the withdrawal of the Information from the RTC and the filing of another Information in the MeTC for arbitrary detention. The appellate court also held that the RTC did not commit grave abuse of its discretion amounting to excess or lack of jurisdiction in issuing the assailed Order. It ruled that even if the reinvestigation conducted by the City Prosecutor is defective, the Information filed with the MeTC is valid because under the Revised Rules of Criminal Procedure, there is no need for a preliminary investigation for crimes cognizable by the Metropolitan Trial Court. The petition is partially granted. We agree with the Court of Appeals that the petitioner was unlawfully arrested without a warrant of arrest against him for ki dnapping/serious illegal detention. As correctly ruled by the Court of Appeals: Furthermore, warrantless arrest or the detention of petitioner in the instant case does not fall within the provision of Section 5, Rule 113, Revised Rules on Criminal Procedure, as amended, which provides: Sec. 5. Arrest without warrant; when lawful. A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has been committed and he has probable cause to believe, based on personal knowledge of facts or circumstances, that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped while being transferred from one confinement to another. In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance with Section 7 of Rule 112. considering that petitioner only went to the Office of the NBI to answer the subpoena it issued which was seven (7) days after the supposed turning over of the custody of Ricardo Tan to petitioner who was then the Barangay Chairman of La Huerta, Paraaque City, and his locking up in the barangay jail and, thereafter, he was already arrested and detained. Certainly, the arresting officers were not present within the meaning of Section 5(a) at the time when the supposed victim, Ricardo Tan, was turned over to petitioner. Neither could the arrest which was effected seven (7) days after the incident be seasonably regarded as when the turning over and locking up in the Barangay jail had in fact just been committed within the meaning of Section 5(b) . Moreover, none of the arresting officers had any personal knowledge of facts indicating that petitioner was the person to whom the custody of the victim Ri cardo Tan was turned over and who locked up the latter in the Barangay jail. The information upon which the arresting officers acted upon had been derived from the statements made by the alleged eyewitnesses to the incident which information did not, however, constitute personal knowledge. [14] Consequently, the petitioner is entitled to a preliminary investigation before an Information may be filed against him for said crime. The inquest investigation conducted by the State Prosecutor is void because under Rule 112, Section 7 of the Revised Rules on Criminal Procedure, an inquest investigation is proper only when the suspect is lawfully arrested without a warrant: SEC. 7. When accused lawfully arrested without warrant. When a person is lawfully arrested without a warrant involving an offense which requires a preliminary investigation, the complaint or information may be filed by a prosecutor without need of such investigation provided an inquest investigation has been conducted in accordance with existing rules. In the absence or unavailability of an inquest prosecutor, the complaint may be filed by the offended party or a peace officer directly with the proper court on the basis of the affidavit of the offended party or arresting officer or person. [15] We also agree with the Court of Appeals that the absence of a preliminary investigation does not affect the jurisdiction of t he trial court but merely the regularity of the proceedings. It does not impair the validity of the Information or otherwise render it defective. [16] Neither is it a ground to quash the Information or nullify the order of arrest issued against him or justify the release of the accused from detention. [17] However, the trial court should suspend proceedings and order a preliminary investigation[18] considering that the inquest investigation conducted by the State Prosecutor is null and void. [19] In sum, then, the RTC committed grave abuse of its discretion amounting to excess or lack of jurisdiction in ordering the City Prosecutor to conduc t a reinvestigation which is merely a review by the Prosecutor of his records and evidence instead of a preliminary investigation as provided for in Section 3, Rule 112 of the Revised Rules on Criminal Procedure. However, we do not agree with the ruling of the Court of Appeals that there was no need for the City Prosecutor to conduct a preliminary investigation since the crime charged under the Information filed with the MeTC was arbitrary detention under Article 124, paragraph 1 of the Revised Penal Code punishable by arresto mayor in its maximum period to prisioncorreccional in its minimum period, which has a range of four months and one day to two years and four months. Whether or not there is a need for a preliminary investigation under Section 1 in relation to Section 9 of Rule 112 of the Revised Rules on Criminal Procedure depends upon the imposable penalty for the crime charged in the complaint filed with the City or Provincial Prosecu tors Office and not upon the imposable penalty for the crime found to have been committed by the respondent after a preliminary investigation. In this case, the crime charged in the complaint of the NBI filed in the Department of Justice was kidnapping/serious illegal detention, the imposable penalty for which is reclusion perpetua to death. IN LIGHT OF ALL THE FOREGOING, the petition is PARTIALLY GRANTED. The Order of the Regional Trial Court of Paraaque City, dated July 24, 2004, ordering the City Prosecutor to conduct a reinvestigation is SET ASIDE. The Regional Trial Court is directed to ORDER the City Prosecutor of Paraaque City to conduct a preliminary investigation as provided for in Section 3, Rule 112 of the Revised Rules on Criminal Procedure. In the meantime, the Metropolitan Trial Court of Paraaque City, Branch 77, is ordered to suspend the proceedings in Criminal Case No. 02-2486 pending the outcome of said preliminary investigation. SO ORDERED.

Austria-Martinez, (Acting Chairman), Tinga, and Chico-Nazario, JJ., concur. Puno, (Chairman), J., on official leave.

EN BANC

[G.R. Nos. 105965-70. March 20, 2001]

GEORGE UY, petitioner, vs. THE HON. SANDIGANBAYAN, THE HON. OMBUDSMAN AND THE HON. ROGER C. BERBANO, SR., SPECIAL PROSECUTION OFFICER III, OFFICE OF THE SPECIAL PROSECUTOR,respondents. RESOLUTION PUNO, J.: Before the Court is the Motion for Further Clarification filed by Ombudsman Aniano A. Desierto of the Court's ruling in its decision dated August 9, 1999 and resolution dated February 22, 2000 that the prosecutory power of the Ombudsman extends only to cas es cognizable by the Sandiganbayan and that the Ombudsman has no authority to prosecute cases falling within the jurisdiction of regular courts. The Court stated in its decision dated August 9, 1999: In this connection, it is the prosecutor, not the Ombudsman, who has the authority to file the corresponding information/s against petitioner in the regional trial court. The Ombudsman exercises prosecutorial powers only in cases cognizable by the Sandiganbayan. It explained in the resolution of February 22, 2000 that: (t)he clear import of such pronouncement is to recognize the authority of the State and regular provincial and city prosecut ors under the Department of Justice to have control over prosecution of cases falling within the jurisdiction of the regular courts. The investigation and prosecutorial powers of the Ombudsman relate to cases rightfully falling within the jurisdiction of the Sandiganbayan under Section 15 (1) of R.A. 6770 ("An Act Providing for the Functional and Structural Organization of the Office of the Ombudsman, and for other purposes") which vests upon the Ombudsman "primary jurisdiction over cases cognizable by the Sandiganbayan" And this is further buttressed by Section 11 (4a) of R.A. 6770 whic h emphasizes that the Office of the Special Prosecutor shall have the power to "conduct preliminary investigation and prosecute criminal cases within the jurisdiction of the Sandiganbayan." Thus, repeated references to the Sandiganbayan's jurisdiction clearly serve to limit the Ombudsman's and Special Prosecutor's authority to cases cognizable by the Sandiganbayan. Seeking clarification of the foregoing ruling, respondent Ombudsman raises the following points: (1) The jurisdiction of the HonorableSandiganbayan is not parallel to or equated with the broader jurisdiction of the Office of the Ombudsman; (2) The phrase "primary jurisdiction of the Office of the Ombudsman over cases cognizable by the Sandiganbayan" is not a delimitation of its jurisdiction solely to Sandiganbayan cases; and (3) The authority of the Office of the Special Prosecutor to prosecute cases before the Sandiganbayan cannot be confused with the broader investigatory and prosecutorial powers of the Office of the Ombudsman. Thus, the matter that needs to be discussed herein is the scope of the power of the Ombudsman to conduct preliminary investigation and the subsequent prosecution of criminal offenses in the light of the provisions of the Ombudsman Act of 1989 (Republic Act [RA] 6770). We held that the Ombudsman is clothed with authority to conduct preliminary investigation and to prosecute all criminal cases involving public officers and employees, not only those within the jurisdiction of the Sandiganbayan, but those within the jurisdiction of the regular courts as well. The authority of the Ombudsman to investigate and prosecute offenses committed by public officers and employees is founded in Section 15 and Section 11 of RA 6770. Section 15 vests the Ombudsman with the power to investigate and prosecute any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient, thus: Sec. 15. Powers, Functions and Duties.--The Office of the Ombudsman shall have the following powers, functions and duties: (1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient . It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of this primary jurisdiction, it may take over, at any stage, from any investigatory agency of Government, the investigation of such cases; x xx Section 11 grants the Office of the Special Prosecutor, an organic component of the Office of the Ombudsman under the latters supervision and control, the power to conduct preliminary investigation and prosecute criminal cases within the jurisdiction of the Sandiganbayan. It states: Sec. 11. Structural Organization. x xx

x xx (3) The Office of the Special Prosecutor shall be composed of the Special Prosecutor and his prosecution staff. The Office of the Special Prosecutor shall be an organic component of the Office of the Ombudsman and shall be under the supervision and control of the Ombudsman. (4) The Office of the Special Prosecutor shall, under the supervision and control and upon authority of the Ombudsman, have the f ollowing powers: (a) (b) (c) To conduct preliminary investigation and prosecute criminal cases within the jurisdiction of the Sandiganbayan ; To enter into plea bargaining agreements; and To perform such other duties assigned to it by the Ombudsman.

The power to investigate and to prosecute granted by law to the Ombudsman is plenary and unqualified. It pertains to any act or omission of any public officer or employee when such act or omission appears to be illegal, unjust, improper or inefficient . The law does not make a distinction between cases cognizable by the Sandiganbayan and those cognizable by regular courts. It has been held that the clause any illegal act or omission of any public official is broad enough to embrace any crime committed by a public officer or employee. [1] The reference made by RA 6770 to cases cognizable by the Sandiganbayan, particularly in Section 15 (1) giving the Ombudsman primary jurisdiction over cases cognizable by the Sandiganbayan, and Section 11 (4) granting the Special Prosecutor the power to conduct preliminary investigation and prosecute criminal cases within the jurisdiction of the Sandiganbayan, should not be construed as confining the scope of the investigatory and prosecutory power of the Ombudsman to such cases. Section 15 of RA 6770 gives the Ombudsman primary jurisdiction over cases cognizable by the Sandiganbayan. The law defines such primary jurisdiction as authorizing the Ombudsman "to take over, at any stage, from any investigatory agency of the government, the investigation of such cases." The grant of this authority does not necessarily imply the exclusion from its jurisdiction of cases involving public officers and employees cognizable by other courts. The exercise by the Ombudsman of his primary jurisdiction over cases cognizable by the Sandiganbayan is not incompatible with the discharge of his duty to investigate and prosecute other offenses committed by public officers and employees. Indeed, it must be stressed that the powers granted by the legislature to the Ombudsman are very broad and encompass all kinds of malfeasance, misfeasance and non-feasance committed by public officers and employees during their tenure of office. [2] Moreover, the jurisdiction of the Office of the Ombudsman should not be equated with the limited authority of the Special Prosecutor under Section 11 of RA 6770. The Office of the Special Prosecutor is merely a component of the Office of the Ombudsman and may only act under the supervision and control and upon authority of the Ombudsman. [3] Its power to conduct preliminary investigation and to prosecute is limited to criminal cases within the jurisdiction of the Sandiganbayan . Certainly, the lawmakers did not intend to confine the investigatory and prosecutory power of the Ombudsman to these types of cases. The Ombudsman is mandated by law to act on all complaints against officers and employees of the government and to enforce their administrative, civil and criminal liability in every case where the evidence warra nts.[4] To carry out this duty, the law allows him to utilize the personnel of his office and/or designate any fiscal, state prosecutor or lawyer in the government service to act as special investigator or prosecutor to assist in the investigation and prosecution of certain cases. Those designated or deputized to assist him work under his supervision and control.[5] The law likewise allows him to direct the Special Prosecutor to prosecute cases outside the Sandiganbayan's jurisdiction in accordance with Section 11 (4c) of RA 6770. The prosecution of offenses committed by public officers and employees is one of the most important functions of the Ombudsman. In passing RA 6770, the Congress deliberately endowed the Ombudsman with such power to make him a more active and effective agent of the people in ensuring accountability in public office.[6] A review of the development of our Ombudsman laws reveals this intent. The concept of Ombudsman originated in Sweden in the early 19th century, referring to an officer appointed by the legislature to handle the peoples grievances against administrative and judicial actions. He was primarily tasked with receiving complaints from persons aggrieved by administrative action or inaction, conducting investigation thereon, and making recommendations to the appropriate administrative agency based on his findings. He relied mainly on the power of persuasion and the high prestige of the office to effect his recommendations. [7] In this jurisdiction, several Ombudsman-like agencies were established by past Presidents to serve as the peoples medium for airing grievances and seeking redress against abuses and misconduct in the government. These offices were conceived with the view of raising the standard in public service and ensuring integrity and efficiency in the government. In May 1950, President ElpidioQuirino created the Integrity Board charged with receiving complaints against public officials for acts of corruption, dereliction of duty and irregularity in office, and conducting a thorough investigation of these complaints. The Integrity Board was succeeded by several other agencies which performed basically the same functions of complaints-handling and investigation. These were the Presidential Complaints and Action Commission under President Ramon Magsaysay, the Presidential Committee on Administration Performance Efficiency under President Carlos Garcia, the Presidential Anti-Graft Committee under President DiosdadoMacapagal, and the Presidential Agency on Reform and Government Operations and the Office of the Citizens Counselor, both under President Ferdinand Marcos. It was observed, however, that these agencies failed to realize their objective for they did not enjoy the political independence ne cessary for the effective performance of their function as government critic. Furthermore, their powers extended to no more than fact-finding and recommending.[8] Thus, in the advent of the 1973 Constitution, the members of the Constitutional Convention saw the need to constitutionalize the office of an Ombudsman, to give it political independence and adequate powers to enforce its recommendations. [9] The 1973 Constitution mandated the legislature to create an office of the Ombudsman to be known as Tanodbayan. Its powers shall not be limited to receiving complaints and making recommendations, but shall also include the filing and prosecution of criminal, civil or administrative case before the appropriate body in case of failure of justice. Section 6, Article XIII of the 1973 Constitution read: Sec. 6. The BatasangPambansa shall create an office of the Ombudsman, to be known as Tanodbayan, which shall receive and investigate complaints relative to public office, including those in government-owned or controlled corporations, make appropriate recommendations, and in case of failure of justice as defined by law, file and prosecute the corresponding criminal, civil or administrative case before the proper court or body.

Implementing this constitutional provision, President Marcos, on June 11, 1978, exercising his power under Proclamation 1081, enacted Presidential Decree (PD) 1487 creating the Office of the Ombudsman to be known as Tanodbayan. Its principal task was to investigate, on complaint, any administrative act[10] of any administrative agency[11] including any government- owned or controlled corporation.[12] The Tanodbayan also had the duty to file and prosecute the corresponding criminal, civil, or administrative case before the Sandiganbayan or the proper court or body if he has reason to believe that any public official, employee, or other person has acted in a manner resulting in a failure of justice.[13] It should be noted, however, that the prosecution of cases falling within the jurisdiction of the Sandiganbayan was to be done by the Tanodbayan through the Special Prosecutor who, according to PD 1486,[14] had the exclusive authority to conduct preliminary investigation, file information for and prosecute cases within the jurisdiction of said court. The Special Prosecutor was then under the control and supervision of the Secretary of Justice. [15] Shortly after its enactment, PD 1487 was amended by PD 1607 which took effect on December 10, 1978. The amendatory law broadened the authority of the Tanodbayan to investigate administrative acts of administrative agencies by authorizing it to conduct an investigation on its own motion or initiative, even without a complaint from any person. [16] The new law also expanded the prosecutory function of the Tanodbayan by creating the Office of the Chief Special Prosecutor in the Office of the Tanodbayan and placing under his direction and control the Special Prosecutor who had the exclusive authority to conduct preliminary investigation of all cases cognizable by the Sandiganbayan; to file informations therefor and to direct and control the prosecution of said cases therein.[17] Thus, the law provided that if the Tanodbayan has reason to believe that any public official, employee, or other person has acted in a manner warranting criminal or disciplinary action or proceedings, he shall cause him to be investigated by the Office of the Chief Special Prosecutor who shall file and prosecute the corresponding criminal or administrative case before the Sandiganbayan or the proper court or before the proper administrative agency. [18] On July 18, 1979, PD 1630 was enacted further amending PD 1487 and PD 1607. PD 1630 reorganized the Office of the Tanodbayan and transferred the powers previously vested in the Special Prosecutor to the Tanodbayan himself. Thus, the Tanodbayan was empowered to directly conduct preliminary investigation, file information and prosecute cases within the jurisdiction of the Sandiganbayan and other courts. The amendment gave the Tanodbayan the exclusive authority to conduct preliminary investigation of all cases cognizable by the Sandiganbayan; to file informatio n therefor and to direct and control the prosecution of said cases. [19] Section 10 of PD 1630 provided: Sec. 10. Powers.--The Tanodbayan shall have the following powers: (a) He may investigate, on complaint by any person or on his own motion or initiative, any administrative act wh ether amounting to any criminal offense or not of any administrative agency including any government-owned or controlled corporation; x xx (e) If after preliminary investigation he finds a prima facie case, he may file the necessary information or complaint with the Sandiganbayan or any proper court or administrative agency and prosecute the same. Section 18 further stated: Sec. 18. Prosecution of Public Personnel or Other Person .--If the Tanodbayan has reason to believe that any public official, employee or other person has acted in a manner warranting criminal or disciplinary action or proceedings, he shall conduct the necessary investigation and shall file and prosecute the corresponding criminal or administrative case before the Sandiganbayan or the p roper court or before the proper administrative agency. With the ratification of the 1987 Constitution, a new Office of the Ombudsman was created. The present Ombudsman, as protector of the people, is mandated to act promptly on complaints filed in any form or manner against public officials or employees of the government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations, and to notify the complainants of the action taken and the result thereof.[20] He possesses the following powers, functions and duties: 1. Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient; 2. Direct, upon complaint or at its own instance, any public official or employee of the Government, or any subdivision, agency or instrumentality thereof, as well as of any government-owned or controlled corporation with original charter, to perform and expedite any act or duty required by law, or to stop, prevent and correct any abuse or impropriety in the performance of duties. 3. Direct the officer concerned to take appropriate action against a public official or employee at fault, and recommend his remov al, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith. 4. Direct the officer concerned, in any appropriate case, and subject to such limitations as may be provided by law, to furnish it with copies of documents relating to contracts or transactions entered into by his office involving the disbursement or use of public fun ds or properties, and report any irregularity to the Commission on Audit for appropriate action. 5. Request any government agency for assistance and information necessary in the discharge of its responsibilities, and to exami ne, if necessary, pertinent records and documents. 6. Publicize matters covered by its investigation when circumstances so warrant and with due prudence. 7. Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in the Government and make recommendations for their elimination and the observance of high standards of ethics and efficiency. 8. Promulgate its rules of procedure and exercise such other powers or perform such functions or duties as may be provided by la w.[21] As a new Office of the Ombudsman was established, the then existing Tanodbayan became the Office of the Special Prosecutor which continued to function and exercise its powers as provided by law, except those conferred on the Office of the Ombudsman created under the 1987 Constitution. [22] The frameworks for the Office of the Ombudsman and the Office of the Special Prosecutor were laid down by President Corazon Aquino in Executive Order (EO) 243 and EO 244, both passed on July 24, 1987.

In September 1989, Congress passed RA 6770 providing for the functional and structural organization of the Office of the Ombudsman. As in the previous laws on the Ombudsman, RA 6770 gave the present Ombudsman not only the duty to receive and relay the people's grievances, but also the duty to investigate and prosecute for and in their behalf, civil, criminal and administrative offenses committed by government officers and employees as embodied in Sections 15 and 11 of the law. Clearly, the Philippine Ombudsman departs from the classical Ombudsman model whose function is merely to receive and process the people's complaints against corrupt and abusive government personnel. The Philippine Ombudsman, as protector of the people, is armed with the power to prosecute erring public officers and employees, giving him an active role in the enforcement of laws on anti-graft and corrupt practices and such other offenses that may be committed by such officers and employees. The legislature has vested him with broad powers to enable him to implement his own actions. Recognizing the importance of this power, the Court cannot derogate the same by limiting it only to cases cognizable by the Sandiganbayan. It is apparent from the history and the language of the present law that the legislature intended such power to apply not onl y to cases within the jurisdiction of the Sandiganbayan but also those within the jurisdiction of regular courts. The Court observed in the case of Republic vs. Sandiganbayan:[23] A perusal of the law originally creating the Office of the Ombudsman then (to be known as the Tanodbayan), and the amendatory laws issued subsequent thereto will show that, at its inception, the Office of the Ombudsman was already vested with the power to investigate and prosecute civil and criminal cases before the Sandiganbayan and even the regular courts. x xx Presidential Decree No. 1630 was the existing law governing the then Tanodbayan when Republic Act No. 6770 was enacted providing for the functional and structural organization of the present Office of the Ombudsman. This later law retained in the Ombudsman the power of the former Tanodbayan to investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient. x xx. Finally, it must be clarified that the authority of the Ombudsman to prosecute cases involving public officers and employees before the regular courts does not conflict with the power of the regular prosecutors under the Department of Justice to control and direct the prosecution of all criminal actions under Rule 110 of the Revised Rules of Criminal Procedure. The Rules of Court must be read in conjunction with RA 6770 which charged the Ombudsman with the duty to investigate and prosecute all illegal acts and omissions of public officers and employees. The Court held in the case of Sanchez vs. Demetriou[24] that the power of the Ombudsman under Section 15 (1) of RA 6770 is not an exclusive authority but rather a shared or concurrent authority in respect of the offense charged. Thus, Administrative Order No. 8 issued by the Office of the Ombudsman provides: The prosecution of case cognizable by the Sandiganbayan shall be under the direct exclusive control and supervision of the O ffice of the Ombudsman. In cases cognizable by regular Courts, the control and supervision by the Office of the Ombudsman is only in Ombudsman cases in the sense defined (therein).[25] The law recognizes a concurrence of jurisdiction between the Office of the Ombudsman and other investigative agencies of government in the prosecution of cases cognizable by regular courts. IN VIEW WHEREOF, the Court's ruling in its decision dated August 9, 1999 and its resolution dated February 20, 2000 that the Ombudsman exercises prosecutorial powers only in cases cognizable by the Sandiganbayan is SET ASIDE. SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Vitug, Mendoza, Panganiban, Buena, Gonzaga-Reyes, Ynares-Santiago, and Sandoval-Gutierrez, JJ., concur. Kapunan, J., I concur in the result. Quisumbing, J., on leave. Pardo, J., I dissent. See attached. De Leon, Jr., J., I join the dissenting opinion of Justice B. P. Pardo.

Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 101837 February 11, 1992 ROLITO GO y TAMBUNTING, petitioner, vs. THE COURT OF APPEALS, THE HON. BENJAMIN V. PELAYO, Presiding Judge, Branch 168, Regional Trial Court, NCJR Pasig, M. M., and PEOPLE OF THE PHILIPPINES, respondents.

FELICIANO, J.: According to the findings of the San Juan Police in their Investigation Report, 1 on 2 July 1991, Eldon Maguan was driving his car along Wilson St., San Juan, Metro Manila, heading towards P. Guevarra St. Petitioner entered Wilson St., where it is a one-way street and started travelling in the opposite or "wrong" direction. At the corner of Wilson and J. Abad Santos Sts., petitioner's and Maguan's cars nearly bumped each other. Petitioner alighted from his car, walked over and shot Maguan inside his car. Petitioner then boarded his car and left the scene. A security guard at a nearby restaurant was able to take down petitioner's car plate number. The police arrived shortly thereafter at the scene of the shooting and there retrieved an em pty shell and one round of live ammunition for a 9 mm caliber pistol. Verification at the Land Transportation Office showed that the car was registered to one Elsa Ang Go. The following day, the police returned to the scene of the shooting to find out where the suspect had come from; they were informed that petitioner had dined at Cravings Bake Shop shortly before the shooting. The police obtained a facsimile or impression of the credit card used by petitioner from the cashier of the bake shop. The security guard of the bake shop was shown a picture of petitioner and he positively identified him as the same person who had shot Maguan. Having established that the assailant was probably the petitioner, the police launched a manhunt for petitioner. On 8 July 1991, petitioner presented himself before the San Juan Police Station to verify news reports that he was being hunted by the police; he was accompanied by two (2) lawyers. The police forthwith detained him. An eyewitness to the shooting, who was at the police station at that time, positively identified petitioner as the gunman. That same day, the police promptly filed a complaint for frustrated homicide 2 against petitioner with the Office of the Provincial Prosecutor of Rizal. First Assistant Provincial Prosecutor Dennis Villa Ignacio ("Prosecutor") informed petitioner, in the presence of his lawyers, that he could avail himself of his right to preliminary investigation but that he must first sign a waiver of the provisions of Article 125 of the Revised Penal Code. Petitioner refused to execute any such waiver. On 9 July 1991, while the complaint was still with the Prosecutor, and before an information could be filed in court, the victim, Eldon Maguan, died of his gunshot wound(s). Accordingly, on 11 July 1991, the Prosecutor, instead of filing an information for frustrated homicide, filed an information for murder 3 before the Regional Trial Court. No bail was recommended. At the bottom of the information, the Prosecutor certified that no preliminary investigation had been conducted because the accused did not execute and sign a waiver of the provisions of Article 125 of the Revised Penal Code. In the afternoon of the same day, 11 July 1991, counsel for petitioner filed with the Prosecutor an omnibus motion for immedi ate release and proper preliminary investigation, 4 alleging that the warrantless arrest of petitioner was unlawful and that no preliminary investigation had been conducted before the information was filed. Petitioner also prayed that he be released on recognizance or on bail. Provincial Prosecutor Mauro Castro, acting on the omnibus motion, wrote on the last page of the motion itself that he interposed no objection to petitioner being granted provisional liberty on a cash bond of P100,000.00. On 12 July 1991, petitioner filed an urgent ex-parte motion for special raffle 5 in order to expedite action on the Prosecutor's bail recommendation. The case was raffled to the sala of respondent Judge, who, on the same date, approved the cash bond 6 posted by petitioner and ordered his release. 7 Petitioner was in fact released that same day. On 16 July 1991, the Prosecutor filed with the Regional Trial Court a motion for leave to conduct preliminary investigation 8 and prayed that in the meantime all proceedings in the court be suspended. He stated that petitioner had filed before the Office of the Provincial Prosecutor of Rizal an omnibus motion for immediate release and preliminary investigation, which motion had been granted by Provincial Prosecutor Mauro Castro, who also agreed to recommend cash bail of P100,000.00. The Prosecutor attached to the motion for leave a copy of petitioner's omnibus motion of 11 July 1991. Also on 16 July 1991, the trial court issued an Order 9 granting leave to conduct preliminary investigation and cancelling the arraignment set for 15 August 1991 until after the prosecution shall have concluded its preliminary investigation. On 17 July 1991, however, respondent Judge motuproprio issued an Order, 10 embodying the following: (1) the 12 July 1991 Order which granted bail was recalled; petitioner was given 48 hours from receipt of the Order to surrender himself; (2) the 16 July 1991 Order which granted leave to the

prosecutor to conduct preliminary investigation was recalled and cancelled; (3) petitioner's omnibus motion for immediate rel ease and preliminary investigation dated 11 July 1991 was treated as a petition for bail and set for hearing on 23 July 1991. On 19 July 1991, petitioner filed a petition for certiorari, prohibition and mandamus before the Supreme Court assailing the 17 July 1991 Order, contending that the information was null and void because no preliminary investigation had been previously conducted, in violation of his right to due process. Petitioner also moved for suspension of all proceedings in the case pending resolution by the Supreme Court of his petition; this motion was, however, denied by respondent Judge. On 23 July 1991, petitioner surrendered to the police. By a Resolution dated 24 July 1991, this Court remanded the petition for certiorari, prohibition and mandamus to the Court of Appeals. On 16 August 1991, respondent Judge issued an order in open court setting the arraignment of petitioner on 23 August 1991. On 19 August 1991, petitioner filed with the Court of Appeals a motion to restrain his arraignment. On 23 August 1991, respondent judge issued a Commitment Order directing the Provincial Warden of Rizal to admit petitioner into his custody at the Rizal Provincial Jail. On the same date, petitioner was arraigned. In view, however, of his refusal to enter a plea, the trial court entered for him a plea of not guilty. The Trial court then set the criminal case for continuous hearings on 19, 24 and 26 September; on 2, 3, 11 and 17 October; and on 7, 8, 14, 15, 21 and 22 November 1991. 11 On 27 August 1991, petitioner filed a petition for habeas corpus 12 in the Court of Appeals. He alleged that in view of public respondent's failure to join issues in the petition for certiorari earlier filed by him, after the lapse of more than a month, thus prolonging his detention, he was entitled to be released on habeas corpus. On 30 August 1991, the Court of Appeals issued the writ of habeas corpus. 13 The petition for certiorari, prohibition and mandamus, on the one hand, and the petition for habeas corpus, upon the other, were subsequently consolidated in the Court of Appeals. The Court of Appeals, on 2 September 1991, issued a resolution denying petitioner's motion to restrain his arraignment on the ground that that motion had become moot and academic. On 19 September 1991, trial of the criminal case commenced and the prosecution presented its first witness. On 23 September 1991, the Court of Appeals rendered a consolidated decision
14

dismissing the two (2) petitions, on the following grounds:

a. Petitioner's warrantless arrest was valid because the offense for which he was arrested and charged had been "freshly committed." His identity had been established through investigation. At the time he showed up at the police station, there ha d been an existing manhunt for him. During the confrontation at the San Juan Police Station, one witness positively identified petitioner as the culprit. b. Petitioner's act of posting bail constituted waiver of any irregularity attending his arrest. He waived his right to preliminary investigation by not invoking it properly and seasonably under the Rules. c. The trial court did not abuse its discretion when it issued the 17 July 1991 Order because the trial court had the inherent power to amend and control its processes so as to make them conformable to law and justice. d. Since there was a valid information for murder against petitioner and a valid commitment order (issued by the trial judge after petitioner surrendered to the authorities whereby petitioner was given to the custody of the Provincial Warden), the petition for habeas corpus could not be granted. On 3 October 1991, the prosecution presented three (3) more witnesses at the trial. Counsel for petitioner also filed a "Withdrawal of Appearance" 15 with the trial court, with petitioner's conformity. On 4 October 1991, the present Petition for Review on Certiorari was filed. On 14 October 1991, the Court issued a Resolution directing respondent Judge to hold in abeyance the hearing of the criminal case below until further orders from this Court. In this Petition for Review, two (2) principal issues need to be addressed: first, whether or not a lawful warrantless arrest had been effected by the San Juan Police in respect of petitioner Go; and second, whether petitioner had effectively waived his right to preliminary investigation. We consider these issues seriatim. In respect of the first issue, the Solicitor General argues that under the facts of the case, petitioner had been validly arrested without warrant. Since petitioner's identity as the gunman who had shot Eldon Maguan on 2 July 1991 had been sufficiently established by police work, petitioner was validly arrested six (6) days later at the San Juan Police Station. The Solicitor General invokes Nazareno v. Station Commander, etc., et al., 16 one of the seven (7) cases consolidated with In the Matter of the Petition for Habeas Corpus of Roberto Umil, etc ., v. Ramos, et al. 17 where a majority of the Court upheld a warrantees arrest as valid although effected fourteen (14) days after the killing in connection with which Nazareno had been arrested. Accordingly, in the view of the Solicitor General, the provisions of Section 7, Rule 112 of the Rules of Court were applicabl e and because petitioner had

declined to waive the provisions of Article 125 of the Revised Penal Code, the Prosecutor was legally justified in filing the information for murder even without preliminary investigation. On the other hand, petitioner argues that he was not lawfully arrested without warrant because he went to the police station six (6) days after the shooting which he had allegedly perpetrated. Thus, petitioner argues, the crime had not been "just committed" at the time tha t he was arrested. Moreover, none of the police officers who arrested him had been an eyewitness to the shooting of Maguan and accordingly none had the "personal knowledge" required for the lawfulness of a warrantees arrest. Since there had been no lawful warrantless arrest. Section 7, Rule 112 of the Rules of Court which establishes the only exception to the right to preliminary investigation, could not apply in respect of petitioner. The reliance of both petitioner and the Solicitor General upon Umil v. Ramos is, in the circumstances of this case, misplaced. In Umil v. Ramos, by an eight-to-six vote, the Court sustained the legality of the warrantless arrests of petitioners made from one (1) to fourteen days after the actual commission of the offenses, upon the ground that such offenses constituted "continuing crimes." Those offenses were subversion, membership in an outlawed organization like the New People's Army, etc. In the instant case, the offense for which petitioner was arrested was murder, an offense which was obviously commenced and completed at one definite location in time and space. No one had pretended that the fatal shooting of Maguan was a "continuing crime." Secondly, we do not believe that the warrantees "arrest" or detention of petitioner in the instant case falls within the terms of Section 5 of Rule 113 of the 1985 Rules on Criminal Procedure which provides as follows: Sec. 5 Arrest without warrant; when lawful . A peace officer or a private person may, without warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. In cases falling under paragraphs (a) and (b) hereof, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail, and he shall be proceed against in accordance with Rule 112, Section 7. Petitioner's "arrest" took place six (6) days after the shooting of Maguan. The "arresting" officers obviously were not present, within the meaning of Section 5(a), at the time petitioner had allegedly shot Maguan. Neither could the "arrest" effected six (6) days after the shooting be reasonably regarded as effected "when [the shooting had] in fact just been committed" within the meaning of Section 5(b). Moreover, none of the "arresting" officers had any "personal knowledge" of facts indicating that petitioner was the gunman who had shot Maguan. The information upon which the police acted had been derived from statements made by alleged eyewitnesses to the shooting one stated that petitioner was the gunman; another was able to take down the alleged gunman's car's plate number which turned out to be registered in petitioner's wife's name. That information did not, however, constitute "personal knowledge." 18 It is thus clear to the Court that there was no lawful warrantless arrest of petitioner within the meaning of Section 5 of Rule 113. It is clear too that Section 7 of Rule 112, which provides: Sec. 7 When accused lawfully arrested without warrant . When a person is lawfully arrested without a warrant for an offense cognizable by the Regional Trial Court the complaint or information may be filed by the offended party, peace officer or fiscal without a preliminary investigation having been first conducted, on the basis of the affidavit of the offended party or arresting office or person However, before the filing of such complaint or information, the person arrested may ask for a preliminary investigation by a proper officer in accordance with this Rule, but he must sign a waiver of the provisions of Article 125 of the Revised Penal Code, as amended, with the assistance of a lawyer and in case of non-availability of a lawyer, a responsible person of his choice.Notwithstanding such waiver, he may apply for bail as provided in the corresponding rule and the investigation must be terminated within fifteen (15) days from its inception.

If the case has been filed in court without a preliminary investigation having been first conducted, the accused may within five (5) days from the time he learns of the filing of the information, ask for a preliminary investigation with the same right to adduce
evidence in his favor in the manner prescribed in this Rule. (Emphasis supplied) is also not applicable. Indeed, petitioner was not arrested at all. When he walked into San Juan Police Station, accompanied by two (2) lawyers, he in fact placed himself at the disposal of the police authorities. He did not state that he was "surrendering" himself, in all probability to avoid the implication he was admitting that he had slain Eldon Maguan or that he was otherwise guilty of a crime. When the police filed a complaint for frustrated homicide with the Prosecutor, the latter should have immediately scheduled a preliminary investigation to determine whether there was probable cause for charging petitioner in court for the killing of Eldon Maguan. Instead, as noted earlier, the Prosecutor proceed under the erroneous supposition that Section 7 of Rule 112 was applicable and required petitioner to waive the provisions of Article 125 of the Revised Penal Code as a condition for carrying out a preliminary investigation. This was substantive error, for petitioner was entitled to a preliminary investigation and that right should have been accorded him without any conditions. Moreover, since petitioner had not been arrested, with or without a warrant, he was also entitled to be released forthwith subject only to his appearing at the preliminary investigation.

Turning to the second issue of whether or not petitioner had waived his right to preliminary investigation, we note that petitioner had from the very beginning demanded that a preliminary investigation be conducted. As earlier pointed out, on the same day that the information for murder was filed with the Regional Trial Court, petitioner filed with the Prosecutor an omnibus motion for immediate release and preliminary i nvestigation. The Solicitor General contends that that omnibus motion should have been filed with the trial court and not with the Prosecutor, and that the p etitioner should accordingly be held to have waived his right to preliminary investigation. We do not believe that waiver of petitioner's statutory right to preliminary investigation may be predicated on such a slim basis. The preliminary investigation was to be conducted by the Prosecutor, not by the Regional Trial Court. It is true that at the time of filing of petitioner's omnibus motion, the information for murder had already been filed with the Regional Trial Court: it is not clear from the record whether petitioner was aware of this fact at the time his omnibus motion was actually filed with the Prosecutor. In Crespo v. Mogul, 19this Court held: The preliminary investigation conducted by the fiscal for the purpose of determining whether a prima facie case exists to warranting the prosecution of the accused is terminated upon the filing of the information in the proper court. In turn, as above stated, the filing of said information sets in motion the criminal action against the accused in Court . Should the fiscal find it proper to conduct a reinvestigation of the case, at such stage, the permission of the Court must be secured . After such reinvestigation the finding and recommendations of the fiscal should be submitted to the Court for appropriate action . While it is true that the fiscal has the quasijudicial discretion to determine whether or not a criminal case should be filed in court or not, once the case had already been brought to Court whatever disposition the fiscal may feel should be proper in the case thereafter should be addressed for the consideration of the Court. The only qualification is that the action of the Court must not impair the substantial rights of the accused., or the right of the People to due process of law. xxxxxxxxx The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any disposition of the case [such] as its dismissal or the conviction or acquittal of the accused rests in the sound discretion of the Court . Although the fiscal retains the direction and control of the prosecution of criminal cases even while the case is already in Court he cannot impose his opinion on the trial court. The Court is the best and sole judge on what to do with the case before it. . . . 20 (Citations omitted; emphasis supplied) Nonetheless, since petitioner in his omnibus motion was asking for preliminary investigation and not for a re-investigation (Crespo v. Mogul involved a re-investigation), and since the Prosecutor himself did file with the trial court, on the 5th day after filing the information for murder, a motion for leave to conduct preliminary investigation (attaching to his motion a copy of petitioner's omnibus motion), we conclude that petitioner's omnibus motion was in effect filed with the trial court. What was crystal clear was that petitioner did ask for a preliminary investigation on the very day that the information was filed without such preliminary investigation, and that the trial court was five (5) days later apprised of the desire of the petitioner for such preliminary investigation. Finally, the trial court did in fact grant the Prosecutor's prayer for leave to conduct preliminary investigation. Thus, even on the (mistaken) supposition apparently made by the Prosecutor that Section 7 of Rule 112 of the Revised Court was applicable, the 5-day reglementary period in Section 7, Rule 112 must be held to have been substantially complied with. We believe and so hold that petitioner did not waive his right to a preliminary investigation. While that right is statutory rather than constitutional in its fundament, since it has in fact been established by statute, it is a component part of due process in criminal justice. 21 The right to have a preliminary investigation conducted before being bound over to trial for a criminal offense and hence formally at risk of incarceration or some other penalty, is not a mere formal or technical right; it is a substantive right. The accused in a criminal trial is inevitably exposed to prolonged anxiety, aggravation, humiliation, not to speak of expense; the right to an opportunity to avoid a process painful to any one save, perhaps, to hardened criminals, is a valuable right. To deny petitioner's claim to a preliminary investigation would be to deprive him the full measure of his right to due process. The question may be raised whether petitioner still retains his right to a preliminary investigation in the instant case considering that he was already arraigned on 23 August 1991. The rule is that the right to preliminary investigation is waived when the accused fails to invoke it before or at the time of entering a plea at arraignment. 22 In the instant case, petitioner Go had vigorously insisted on his right to preliminary investigation before his arraignment. At the time of his arraignment, petitioner was already before the Court of Appeals on certiorari, prohibition and mandamus precisely asking for a preliminary investigation before being forced to stand trial. Again, in the circumstances of this case, we do not believe that by posting bail petitioner had waived his right to preliminary investigation. In People v. Selfaison, 23 we did hold that appellants there had waived their right to preliminary investigation because immediately after their arrest, they filed bail and proceeded to trial "without previously claiming that they did not have the benefit of a preliminary investigation." 24 In the instant case, petitioner Go asked for release on recognizance or on bail and for preliminary investigation in one omnibus motion. He had thus claimed his right to preliminary investigation before respondent Judge approved the cash bond posted by petitioner and ordered his release on 12 July 1991. Accordingly, we cannot reasonably imply waiver of preliminary investigation on the part of petitioner. In fact, when the Prosecutor filed a motion i n court asking for leave to conduct preliminary investigation, he clearly if impliedly recognized that petitioner's claim to preliminary investigation was a legitimate one. We would clarify, however, that contrary to petitioner's contention the failure to accord preliminary investigation, while co nstituting a denial of the appropriate and full measure of the statutory process of criminal justice, did not impair the validity of the information for murder nor affect the jurisdiction of the trial court. 25 It must also be recalled that the Prosecutor had actually agreed that petitioner was entitled to bail. This was equivalent to an acknowledgment on the part of the Prosecutor that the evidence of guilt then in his hands was not strong. Accordingly, we consider that the 17 July 1991 order of respondent Judge recalling his own order granting bail and requiring petitioner to surrender himself within forty-eight (48) hours from notice, was plainly arbitrary considering that no evidence at all and certainly no new or additional evidence had been submitted to respondent Judge that could have justified the recall of his order issued just five (5) days before. It follows that petitioner was entitled to be released on bail as a matter of right.

The final question which the Court must face is this: how does the fact that, in the instant case, trial on the merits has already commenced, the Prosecutor having already presented four (4) witnesses, impact upon, firstly, petitioner's right to a preliminary investigation and, secondly, petitioner's right to be released on bail? Does he continue to be entitled to have a preliminary investigation conducted in respect of the charge against him? Does petitioner remain entitled to be released on bail? Turning first to the matter of preliminary investigation, we consider that petitioner remains entitled to a preliminary investigation although trial on the merits has already began. Trial on the merits should be suspended or held in abeyance and a preliminary investigation forthwi th accorded to petitioner. 26 It is true that the Prosecutor might, in view of the evidence that he may at this time have on hand, conclude that probable cause exists; upon the other hand, the Prosecutor conceivably could reach the conclusion that the evidence on hand does not warrant a findi ng of probable cause. In any event, the constitutional point is that petitioner was notaccorded what he was entitled to by way of procedural due process. 27 Petitioner was forced to undergo arraignment and literally pushed to trial without preliminary investigation, with extraordinary haste, to the applause from the audience that filled the courtroom. If he submitted to arraignment at trial, petitioner did so "kicking and screaming," in a manner of speaking . During the proceedings held before the trial court on 23 August 1991, the date set for arraignment of petitioner, and just before arraignment, counsel made very clear petitioner's vigorous protest and objection to the arraignment precisely because of the denial of preliminary investigation. 28 So energetic and determined were petitioner's counsel's protests and objections that an obviously angered court and prosecutor dared him to withdraw or walkout, promising to replace him with counsel deoficio. During the trial, before the prosecution called its first witness, petitioner through counsel once again reiterated his objection to going to trial without preliminary investigation: petitioner's counsel made of record his " continuing objection." 29 Petitioner had promptly gone to the appellate court on certiorari and prohibition to challenge the lawfulness of the procedure he was being forced to undergo and the lawfulness of his detention. 30If he did not walk out on the trial, and if he cross-examined the prosecution's witnesses, it was because he was extremely loath to be represented by counsel de oficio selected by the trial judge, and to run the risk of being held to have waived also his right to use what is frequently the only test of truth in the judicial process. In respect of the matter of bail, we similarly believe and so hold that petitioner remains entitled to be released on bail as a matter of right. Should the evidence already of record concerning petitioner's guilt be, in the reasonable belief of the Prosecutor, strong, the Prosecutor may move in the trial court for cancellation of petitioner's bail. It would then be up to the trial court, after a careful and objective assessment of th e evidence on record, to grant or deny the motion for cancellation of bail. To reach any other conclusions here, that is, to hold that petitioner's rights to a preliminary investigation and to bail were effectively obliterated by evidence subsequently admitted into the record would be to legitimize the deprivation of due process and to permit the Government to benefit from its own wrong or culpable omission and effectively to dilute important rights of accused persons well-nigh to the vanishing point. It may be that to require the State to accord petitioner his rights to a preliminary investigation and to bail at this point, could turn out ultimately to be largely a ceremonial exercise. But the Court is not compelled to speculate. And, in any case, it would not be idle ceremony; rather, it would be a celebration by the State of the rights and liberties of its own people and a re-affirmation of its obligation and determination to respect those rights and liberties. ACCORDINGLY, the Court resolved to GRANT the Petition for Review on Certiorari. The Order of the trial court dated 17 July 1991 is hereby SET ASIDE and NULLIFIED, and the Decision of the Court of Appeals dated 23 September 1991 hereby REVERSED. The Office of the Provincial Prosecutor is hereby ORDERED to conduct forthwith a preliminary investigation of the charge of murder against petitioner Go, and to complete such preliminary investigation within a period of fifteen (15) days from commencement thereof. The trial on the merits of the criminal case in the Regional Trial Court shall be SUSPENDED to await the conclusion of the preliminary investigation. Meantime, petitioner is hereby ORDERED released forthwith upon posting of a cash bail bond of One Hundred Thousand Pesos (P100,000.00). This release shall be without prejudice to any lawful order that the trial court may issue, should the Office of the Provincial Prosecutor move for cancell ation of bail at the conclusion of the preliminary investigation. No pronouncement as to costs. This Decision is immediately executory. SO ORDERED.

Narvasa, C.J., Bidin, Medialdea, Romero and Nocon, JJ., concur.

Separate Opinions GUTIERREZ, JR., J., concurring: I concur in the majority decision penned by Mr. Justice Florentino P. Feliciano but am at a loss for reasons why an experienced Judge should insist on proceeding to trial in a sensational murder case without preliminary investigation inspite of the vigorous and continued objection and reservation of rights of the accused and notwithstanding the recommendations of the Prosecutor that those rights must be respected. If the Court had faithfully followed the Rules, trial would have proceeded smoothly and if the accused is really guilty, then he may have been convicted by now. As it is, the case has to go back to square one. I agree with Justice Isagani Cruz "that the trial court has (apparently) been moved by a desire to cater to public opinion to the detriment of the impartial administration of justice." Mass media has its duty to fearlessly but faithfully inform the public about events and persons. However, when a case has received wide and sensational publicity, the trial court should be doubly careful not only to be fair and impartial but also to give the appearanceof complete objectivity in its handling of the case.

The need for a trial court to follow the Rules and to be fair, impartial, and persistent in getting the true facts of a case is present in all cases but it is particularly important if the accused is indigent; more so, if he is one of those unfortunates who seem to spend more time behind bars than outside. Unlike the accused in this case who enjoys the assistance of competent counsel, a poor defendant convicted by wide and unfavorable media coverage may be presumed guilty before trial and be unable to defend himself properly. Hence, the importance of the court always following the Rules. While concurring with Justice Feliciano's ponencia, I am constrained to add the foregoing observations because I feel they form an integral part of the Court's decision.

CRUZ, J., concurring: I was one of the members of the Court who initially felt that the petitioner had waived the right to preliminary investigation because he freely participated in his trial and his counsel even cross-examined the prosecution witnesses. A closer study of the record, however, particularly of the transcript of the proceedings footnoted in the ponencia, reveals that he had from the start demanded a preliminary investigation and that his counsel had reluctantly participated in the trial only because the court threatened to replace him with a counsel de oficio if he did not. Under the circumstances, I am convinced that there was no waiver. The petitioner was virtually compelled to go to trial. Such compulsion and unjustified denial of a clear statutory right of the petitioner vitiated the proceedings as violative of procedural due process. It is true that the ruling we lay down here will take the case back to square one, so to speak, but that is not the petitioner's fault. He had the right to insist that the procedure prescribed by the Rules of Court be strictly observed. The delay entailed by the procedural lapse and the attendant expense imposed on the Government and the defendant must be laid at the door of the trial judge for his precipitate and illegal action. It appears that the trial court has been moved by a desire to cater to public opinion to the detriment of the impartial administration of justice. The petitioner as portrayed by the media is not exactly a popular person. Nevertheless, the trial court should not have been influenced by this irrelevant consideration, remembering instead that its only guide was the mandate of the law.

GRIO-AQUINO, J., dissenting: I regret that I cannot agree with the majority opinion in this case. At this point, after four (4) prosecution witnesses have already testified, among them an eyewitness who identified the accused as the gunman who shot Eldon Maguan inside his car in cold blood, and a security guard who identified the plate number of the gunman's car, I do not believe that there is still need to conduct a preliminary investigation the sole p urpose of which would be to ascertain if there is sufficient ground to believe that a crime was committed (which the petitioner does not dispute) and that he (the petitioner) is probably guilty thereof (which the prosecutor, by filing the information against him, presumably believed to be so). In the present stage of the presentation of the prosecution's evidence, to return the case to the Prosecutor to conduct a preliminary investigation under Rule 112 of the 1985 Rule on Criminal Procedure would be supererogatory. This case did not suffer from a lack of previous investigation. Diligent police work, with ample media coverage, led to the identification of the suspect who, seven (7) days after the shooting, appeared at the San Juan police station to verify news reports that he was the object of a police manhunt. Upon entering the station, he was positively identified as the gunman by an eyewitness who was being interrogated by the police to ferret more clues and details about the crime. The police thereupon arrested the petitioner and on the same day, July 8, 1991, promptly filed with the Provincial Prosecutor of Rizal, a complaint for frustrated homicide against him. As the victim died the next day, July 9, 1991, before an information could be filed, the First Assistant Prosecutor, instead of filing an information for frustrated homicide, filed an information for murder on July 11, 1991 in the Regional Trial Court, with no bail recommended. However, the Provincial Prosecutor, acting on the petitioner's omnibus motion for preliminary investigation and release on bail (which was erroneously filed with his office instead of the court), recommended a cash bond of P100,000 for his release, and submitted the omnibus motio n to the trial court for resolution. Respondent Judge Benjamin Pelayo must have realized his impetuosity shortly after he had issued: (a) his order of July 12, 1991 approving the petitioner's cash bail bond without a hearing, and (b) his order of July 16, 1991 granting the Prosecutor leave to conduct a preliminary investigation, for he motupropio issued on July 17, 1991 another order rescinding his previous orders and setting for hearing the petitioner's application for bail. The cases cited in page 15 of the majority opinion in support of the view that the trial of the case should be suspended and that the prosecutor should now conduct a preliminary investigation, are not on all fours with this case. In Doromal vs. Sandiganbayan, 177 SCRA 354 and People vs. Monton, 23 SCRA 1024, the trial of the criminal case had not yet commenced because motions to quash the information were filed by the accused. Lozada vs. Hernandez, 92 Phil. 1053; U.S. vs. Banzuela, 31 Phil. 565; San Diego vs. Hernandez, 24 SCRA 110 and People vs. Oandasan, 25 SCRA 277 are also inapplicable because in those cases preliminary investigations had in fact been conducted before the informations were filed in court. It should be remembered that as important as is the right of the accused to a preliminary investigation, it is not a constitutional right. Its absence is not a ground to quash the information (Doromal vs. Sandiganbayan, 177 SCRA 354). It does not affect the court's jurisdiction, nor impair the validity of the information (Rodis vs. Sandiganbayan, 166 SCRA 618), nor constitute an infringement of the right of the accused to confront witnesses (Bustos vs. Lucero, 81 Phil. 640).

The petitioner's motion for a preliminary investigation is not more important than his application for release on bail, just as the conduct of such preliminary investigation is not more important than the hearing of the application for bail. The court's hearing of the application for bail should not be subordinated to the preliminary investigation of the charge. The hearing should not be suspended, but should be allowed to proceed for it will accomplish a double purpose. The parties will have an opportunity to show not only: (1) whether or not there is probable cause to believe that the petitioner killed Eldon Maguan, but more importantly (b) whether or not the evidence of his guilt is strong. The judge's determination that the evidence of his guilt is strong would naturally foreclose the need for a preliminary investigation to ascertain the probability of his guilt. The bail hearing may not be suspended because upon the filing of an application for bail by one accused of a capital offense, "the judge is under a legal obligation to receive evidence with the view of determining whether evidence of guilt is so strong as to warrant denial of bond." (Payao vs. Lesaca, 63 Phil. 210; HadhirulTahil vs. Eisma, 64 SCRA 378; Peralta vs. Ramos and Provincial Fiscal of Isabela, 71 Phil. 271; Padilla vs. Enrile, 121 SCRA 472; Ilagan vs. Ponce Enrile, 139 SCRA 349; People vs. Albofera, 152 SCRA 123) The abolition of the death penalty did not make the right to bail absolute, for persons charged with offenses punishable by reclusion perpetua, when evidence of guilt is strong, are not bailable (Sec. 3, Art. III, 1987 Constitution). In People vs. Dacudao, 170 SCRA 489, we called down the trial court for having granted the motion for bail in a murder case without any hearing and without giving the prosecution an opportunity to comment or file objections thereto. Similarly this Court held in People vs. Bocar, 27 SCRA 512: . . . due process also demands that in the matter of bail the prosecution should be afforded full opportunity to present proof of the guilt of the accused. Thus, if it were true that the prosecution in this case was deprived of the right to present its evidence against the bail petition, or that the order granting such petition was issued upon incomplete evidence, then the issuance of the order would really constitute abuse of discretion that would call for the remedy of certiorari. (Emphasis supplied.) The petitioner may not be released pending the hearing of his petition for bail for it would be incongruous to grant bail to one who is not in the custody of the law (Feliciano vs. Pasicolan, 2 SCRA 888). I respectfully take exception to the statements in the ponencia that the "petitioner was not arrested at all" (p. 12) and that "petitioner had not been arrested, with or without a warrant" (p. 130). Arrest is the taking of the person into the custody in order that he may be bo und to answer for the commission of an offense (Sec. 1, Rule 113, Rules of Court). An arrest is made by an actual restraint of the person to be arrested, or by his submission to the custody of the person making the arrest (Sec. 2, Rule 113, Rules of Court). When Go walked into the San Juan Police St ation on July 8, 1991, and placed himself at the disposal of the police authorities who clamped him in jail after he was identified by an eyewitness as the person who shot Maguan, he was actually and effectively arrested. His filing of a petition to be released on bail was a waiver of any irregularity attending his arrest and estops him from questioning its validity (Callanta vs. Villanueva, 77 SCRA 377; Bagcal vs. Villaraza, 120 SCRA 525). I vote to dismiss the petition and affirm the trial court's order of July 17, 1991.

Melencio-Herrera, Paras, Padilla, Regalado and Davide, Jr., JJ., concur.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION

G.R. No. L-24122 January 29, 1975 MARGARITO SAUSI, petitioner, vs. THE HONORABLE JOSE R. QUERUBIN, Judge of the Court of First Instance of Negros Occidental and THE PROVINCIAL FISCAL OF NEGROS OCCIDENTAL, respondents.

Artemio A. Treyes for petitioner. Provincial Fiscal Fidencio S. Raz for respondents.

FERNANDO, J.: This Tribunal was persuaded to entertain this petition for certiorari against respondent Judge as the question raised appeared worthy of further consideration. Specifically, the matter for determination is whether upon a remand by a municipal judge, after conducting the preliminary investigation, that the offense committed was not, as alleged, that of frustrated murder, but merely physical injuries with permanent deformity, could the provincial fiscal, the other respondent in this proceeding, file an information for frustrated murder, without a new preliminary investi gation on his part? For so it did transpire in this case. The accused taking the stand that the answer must be in the negative moved to dismiss. Respondent Judge denied such motion. Hence this petition, based on the premise that such denial raised a jurisdictional issue. The authoritative doctrines, as will hereafter be shown, do not go so far as to warrant a definitive dismissal. Certiorari may be availed of however in the sense that the case must be sent back to the lower court so that it could require the fiscal to conduct the necessary preliminary investigation, before an information for a crime other than that certified by the municipal court could be justified. That is the remedy to which petitioner may rightfully lay claim. The facts are undisputed. It was shown that the municipal court of Talisay Occidental Negros, after conducting a preliminary investigation recommended that the proper complaint against the accused, now petitioner, be one for serious physical injuries with permanent deformity rather than frustrated murder. 1 It did not dismiss the case. In the information filed by respondent Provincial Fiscal of Negros Occidental, the offense for w hich the accused had to stand trial was one for frustrated murder. He did not conduct a new preliminary investigation. 2 Then came a motion to dismiss by the accused before the trial could be held "based mainly on the ground that the Provincial Fiscal had no authority to file the above-mentioned "Information" against the petitioner without first conducting a new preliminary investigation of the case ... ." 3 There was an opposition by respondent Provincial Fiscal, wherein he pointed out that he saw no need for a "new preliminary investigation" as there was no "actual dismissal of the original criminal complaint," by the municipal court. He therefore maintained that what was done by him was in accordance with the powers vested in him as provincial fiscal. 4 Respondent Judge denied the motion to dismiss in an order of December 15, 1964. 5 Hence, as noted, this petition. In fairness to respondent Judge, it must be noted that the way the motion to dismiss was worded with the implication that the accused was thereby rendered immune to further prosecution for frustrated murder must have led to its denial. This petition, however, does admit, as it very well could not deny, that respondent fiscal has the power to conduct another preliminary investigation, which could result precisely in that kind of an indictment. It was only his failure to do so before filing the information that marred his actuation. To that extent, as noted at the outset, the petition possesses merit. 1. The prevailing doctrine is that if a municipal judge, after a preliminary investigation, finds that the charge against the accused is not warranted, the prosecution for such offense is not thereby barred as long as the fiscal conducts another preliminary investigation before filing the corresponding information. So it was held in a 1916 decision, United States v. Marfori. 6 In People v. Pervez, 7 decided in 1960, this Court, speaking through Justice J. B. L. Reyes, could assert: "It can not seriously be disputed, and needs no citation of authorities, that the Provincial Fiscal is not precluded from conducting his own preliminary investigation of a case previously dismissed by the Justice of the Peace, since such dismissal creates no bar to another prosecution." 8 It is quite clear therefore that an accused is not thereby relieved of any apprehension that he may be indicted just because a municipal judge finds that the evidence offered at such proceeding does not justify his being held for trial. The threat of possible los s of liberty, even of life in capital offenses, is by no means over. The menace still hangs over his head. The only guarantee to the high regard that the law has for physical liberty is that the fiscal must conduct a new preliminary investigation. Such a requirement, of course, may likewise be looked upon as a recognition of the wide discretion enjoyed by such official to assure that the guilty does not go unpunished. What is more, they should be made to respond for the particular crimes warranted by the evidence, which it is for him to evaluate. That is why even when there is a remand by the municipal judge after a preliminary investigation, his power to conduct his own inquiry is conceded. To quote anew from another opinion of Justice J. B. L. Reyes, this time in Talusan v. Ofiana: 9 "The power of the provincial fiscal (or his assistant) to conduct his own investigation or reinvestigation of a case already elevated to the Court of First Instance by a municipal judge or justice of the peace who conducted a preliminary investigation thereon, in order to determine his own course of action as prosecuting officer, is particularly true in the present case, since counter charges for attempted murder have also been filed against herein petitioner (who earlier filed his own charge of frustrated murder against private respondents) based on the same incident." 10

2. The decision arrived at, moreover, manifests fidelity to the principle that underlies the concept of a preliminary investigation as set forth in the leading case of United States v. Grant and Kennedy , 11 decided as far back as 1910: "The object or purpose of a preliminary investigation, or a previous inquiry of some kind, before an accused person is placed upon trial, is to secure the innocent against hasty, malicious, and oppressive prosecutions, and to protect him from an open and public accusation of crime, from the trouble, expense, and anxiety of a public trial, and also to protect the State from useless and expensive trials." 12 While neither malice nor oppression could be imputed to the actuation of the provincial fiscal, still in view of the grave doubt entertained by the municipal judge, the holding of another preliminary investigation is more than warranted. For it could dispel any imputation of haste on the part of the provincial fiscal even on the assumption that thereafter the offense imputed to the petitioner as the accused would be that of frustrated murder. The basic premise, of course, is that respondent Provincial Fiscal would be guided solely by the proof offered in the information that thereafter would be filed by him. That the accused cannot escape an indictment would seem to follow from the express finding of the municipal judge that he could be prosecuted of physical injuries with permanent deformity. Parenthetically, it may be observed that had he be en more categorical in dismissing the case outright for lack of evidence to sustain the accusation for frustrated murder, there would have been no need for this further proceeding. WHEREFORE, the writ of certiorari is granted and the order of respondent Judge of December 15, 1964, annulled and set aside. The case is remanded to the lower court for further proceeding in accordance with this opinion. No costs.

Makalintal, C.J., Fernandez and Aquino, JJ., concur. Antonio, J., is on leave.

Separate Opinions

BARREDO, J., dissenting: My view is that a fiscal has no authority to file, without having conducted a new preliminary investigation in the manner pro vided by law, an information charging an accused with an offense different from that which the municipal judge certifies to have been probably committed by the accused.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 170288 September 22, 2006

PEDRO E. BUDIONGAN, JR., Municipal Mayor; JOSIL E. TRABAJO, Municipal Vice Mayor and Presiding Officer of the Sangguniang Bayan; FULGENCIO V. PAA, Municipal Treasurer; TACIANA B. ESPEJO, Municipal Budget Officer; and SB Members: RUFINO G. ADLAON, TITO R. MONTAJES, MARIO M. SORIA, ALFONSO L. UNAJAN, CARLITO B. TORREFRANCA, VICENTE A. TORREFRANCA, JR., etitioners, vs. HON. JACINTO M. DELA CRUZ, JR., Asst. Special Prosecutor I; HON. CORNELIO L. SONIDO, Acting Director, Prosecution Bureau IV; HON. ROBERT E. KALLOS, Deputy Special Prosecutor; HON. DENNIS M. VILLA IGNACIO, The Special Prosecutor; HON. WENDELL E. BARRERAS-SULIT, Acting Director, Case Assessment, Review and Re-investigation Bureau; and OFFICE OF THE SPECIAL PROSECUTOR,public respondents. VALERIANO U. NADALA, ARLENE PAINAGAN-PALGAN, private respondents. DECISION YNARES-SANTIAGO, J.: This Petition for Certiorari under Rule 65 of the Rules of Court assails the Memorandum 1 dated April 28, 2004 of the Office of the Special Prosecutor, Office of the Ombudsman, recommending that petitioners be charged with violation of Section 3(e) of Republic Act (R.A.) No. 3019 and petitioner Pedro E. Budiongan with violation of Section 3(h) of R.A. No. 3019. Also assailed is the Resolution 2 dated October 19, 2005 denying petitioners' motion for reconsideration. The antecedent facts are as follows: By virtue of Municipal Ordinance No. 2, series of 2001, the Municipality of Carmen, Bohol appropriated the amount of P450,000.00 for the purchase of a road roller for the municipality. However, on November 16, 2001, the Municipal Development Council through Resolution No. 3 recommended that the amount of P450,000.00 be realigned and used for the asphalt laying of a portion of the Tan Modesto Bernaldez Street. 3 The proposed realignment was included in the December 21, 2001 agenda of the Sangguniang Bayan of Carmen but discussion thereon was deferred. On February 6, 2002, petitioner Municipal Treasurer, Fulgencio V. Paa, issued a Certificate of Availability of Funds for the project. Thereafter, the Office of the Municipal Engineer prepared a Program of Works and Cost Estimates duly noted/approved by Municipal Budget Officer Taciana B. Espejo and Mayor Budiongan. Bidding was conducted on March 5, 2002. The next day, March 6, 2002, Mayor Budiongan issued the Notice of Award and Notice to Commence Work in favor of Herbert Malmis General Merchandise and Contractor, Inc. who emerged as the lowest complying bidder. On March 22, 2002, the Sangguniang Bayan passed Resolution No. 60,4 series of 2002, authorizing Mayor Budiongan to sign and enter into contract with Malmis relative to the above project in the amount of P339,808.00. With such authority, Malmis commenced with the project. Thereafter, it was discovered that there was yet no ordinance approving the realignment of the funds. Thus, on May 17, 2002, the Sangguniang Bayan passed Ordinance No. 8,5 series of 2002, approving the realignment of the fund. On June 14, 2002, Malmis was paid the contract price. On July 3, 2002, private respondents Arlene P. Palgan and Valeriano U. Nadala filed a complaint 6 against the petitioners before the Office of the Deputy Ombudsman for Visayas alleging illegality in the conduct of the bidding, award and notice to commence work since there was no fund appropriated for the purpose. On July 31, 2003, the Office of the Deputy Ombudsman for Visayas found probable cause and recommended the filing of an information for violation of Article 220 7 of the Revised Penal Code against the petitioners. However, the complaint against Hermosila Logrono, DesiderioGudia, Jr. and Herbert Malmis was dismissed for lack of merit. 8 Upon review, the Case Assessment, Review and Reinvestigation Bureau of the Office of the Special Prosecutor, issued the assailed Memorandum dated April 28, 2004, modifying the charge from violation of Article 220 of the Revised Penal Code to (1) violation of Section 3(e) of R.A. No. 3019 against petitioners for allegedly giving unwarranted benefit to Malmis and (2) violation of Section 3(h) of R.A. No. 3019 against petitioner Budiongan for allegedly "directly or indirectly having financial or pecuniary interest in a contract or transaction in connection with which he intervenes or takes part in his official capacity." Thus, two separate Informations were filed before the Sandiganbayan (1) for violation of Section 3(e) of R.A. No. 3019 against the petitioners docketed as Criminal Case No. 28075 and (2) for violation of Section 3(h) of R.A. No. 3019 against petitioner Budiongan docketed as Criminal Case No. 28076. Thereafter, petitioners filed a Motion to Quash9 the information charging them with violation of Sec. 3(e) of R.A. No. 3019. In a Resolution 10 dated June 10, 2005, the Sandiganbayan granted the motion to quash and remanded Criminal Case No. 28075 to the Office of the Ombudsman for amendme nt of

the Information. It held that although Malmis benefited from the contract, the same is not unwarranted considering that the project was implemented, executed and completed. On June 27, 2005, an Amended Information11 was filed charging petitioners with violation of Sec. 3(e) of R.A. No. 3019, alleging that petitioners, by prematurely awarding to Malmis the project despite the absence of funds specifically appropriated for such purpose, and thereafter paying the contract price from the Municipal Treasury which was originally appropriated for the purchase of a road roller, caused damage and undue injury to the government. Finding that the Amended Information contains all the material averments necessary to make out a case for the first mode of violating Section 3(e) of R.A. No. 3019, i.e., causing any undue injury to any party, including the government, the Sandiganbayan admitted the Amended Information in its Resolution dated August 18, 2005. 12 On even date, petitioners filed with the Sandiganbayan a Motion for Leave of Court to File Motion for Reinvestigation 13 arguing that the above Informations were filed without affording them the opportunity to file counter-affidavits to answer/rebut the modified charges. On September 20, 2005, the Sandiganbayan issued a Resolution14 denying the motion insofar as Criminal Case No. 28076 is concerned. It held that it is too late in the day to remand the case for reinvestigation considering that Budiongan had already been arraigned and the case had long been set for pre-trial proceedings, with both parties having filed their respective briefs. As regards Criminal Case No. 28075, the Sandiganbayan noted that alth ough the conduct of the preliminary investigation was regular, petitioners however were not given the opportunity to seek reconsideration of the modified charges. Thus, it granted leave to the petitioners to file with the Office of the Special Prosecutor a motion for reconsideration (not a motion for reinvestigation) of the said office's Memorandum dated April 28, 2004. Petitioners filed a Motion for Reconsideration with the Office of the Special Prosecutor which was denied for lack of merit in the Resolution dated October 19, 2005. Hence, this petition raising the following issues: I. WHETHER PUBLIC RESPONDENTS ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR IN EXCESS OF JURISDICTION IN REJECTING THE FINDINGS AND AMENDING/MODIFYING THE RESOLUTION OF THE GRAFT INVESTIGATING OFFICER, OMBUDSMAN VISAYAS, AND IN FILING THE INFORMATION FOR VIOLATION OF SEC. 3(e) OF RA 3019 WITHOUT AFFORDING PETITIONERS THE OPPORTUNITY TO PRESENT THEIR COUNTER EVIDENCE IN A RE-INVESTIGATION; II. WHETHER THE REFUSAL OR FAILURE TO CONDUCT A RE-INVESTIGATION HAS VIOLATED PETITIONERS' RIGHT TO DUE PROCESS; III. WHETHER PUBLIC RESPONDENTS ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR IN EXCESS OF JURISDICTION IN ISSUING RESOLUTIONS DATED APRIL 28, 2004 AND OCTOBER 19, 2005 FINDING PROBABLE CAUSE FOR VIOLATION OF SEC. 3(e) OF RA 3019 AGAINST HEREIN PETITIONERS; and IV. WHETHER PUBLIC RESPONDENTS ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR IN EXCESS OF JURISDICTION IN FILING THE INFORMATION FOR VIOLATION OF SEC.3(e) OF RA 3019 AGAINST PETITIONERS IN THE SANDIGANBAYAN DOCKETED AS CRIMINAL CASE NO. 28075. Petitioners maintain that the modification of the charge from violation of Article 220 of the Revised Penal Code to violation of Sections 3(e) and 3(h) of R.A. No. 3019 denied their rights to due process since they were not given the opportunity to answer and present evidence on the new charge in a preliminary investigation. Furthermore, the petitioners argue that public respondents committed grave abuse of discretion amo unting to lack or excess of jurisdiction in issuing the challenged resolutions finding probable cause for violation of R.A. No. 3019. The petition lacks merit. The right to a preliminary investigation is not a constitutional right, but is merely a right conferred by statute. The absen ce of a preliminary investigation does not impair the validity of the Information or otherwise render the same defective. It does not affect the jurisdiction of the court over the case or constitute a ground for quashing the Information. 15 If absence of a preliminary investigation does not render the Information invalid nor affect the jurisdiction of the court over the case, then the denial of a motion for reinvestigation cannot likewise invalidate the Information or oust the court of its jurisdiction over the case. Petitioners were not deprived of due process because they were afforded the opportunity to refute the charges by filing their counter-affidavits. The modification of the offense charged did not come as a surprise to the petitioners because it was based on the same set of facts and the same alleged illegal acts. Moreover, petitioners failed to aver newly discovered evidence nor impute commission of grave errors or serious irregularities prejudicial to their interest to warrant a reconsideration or reinvestigation of the case as required under Section 8, Rule III of the Rules of Procedure of the Office of the Ombudsman.16 Thus, the modification of the offense charged, even without affording the petitioners a new preliminary investigation, did not amount to a violation of their rights. Furthermore, the right to preliminary investigation is deemed waived when the accused fails to invoke it before or at the time of entering a plea at arraignment.17 Petitioner Budiongan was arraigned in Criminal Case No. 28076 on March 28, 2005. He was also arraigned together with the rest of the petitioners under the Amended Information in Criminal Case No. 28075 on December 2, 2005. The purpose of a preliminary investigation is merely to determine whether a crime has been committed and whether there is probable cause to believe that the person accused of the crime is probably guilty thereof and should be held for trial. 18 A finding of probable cause needs only to rest on evidence

showing that more likely than not a crime has been committed and was committed by the suspect. Probable cause need not be bas ed on clear and convincing evidence of guilt, neither on evidence establishing guilt beyond reasonable doubt and definitely, not on evidence establishing absolute certainty of guilt." 19 The Office of the Special Prosecutor is an integral component of the Ombudsman and is under the latter's supervision and control. Thus, whatever course of action that the Ombudsman may take, whether to approve or to disapprove the recommendation of the investigating prosecutor, is but an exercise of his discretionary powers based upon constitutional mandate. Generally, courts should not interfere in such exercise. It is beyond the ambit of this Court to review the exercise of discretion of the Ombudsman in prosecuting or dismissing a complaint filed before it, sa ve in cases where there is clear showing of grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the Ombudsman. 20 Absent any showing of arbitrariness on the part of the prosecutor or any other officer authorized to conduct preliminary investigation, as in the instant case, courts as a rule must defer to said officer's finding and determination of probable cause, since the determination of the existence of probabl e cause is the function of the prosecutor.21 In fine, certiorari will not lie to invalidate the Office of the Special Prosecutor's resolution denying petitioners' motion for reconsideration since there is nothing to substantiate petitioners' claim that it gravely abused its discretion in ruling that there was no need to conduct a reinvestigation of the case.22 WHEREFORE, in view of the foregoing, the instant petition is DISMISSED. The assailed Memorandum of the Office of the Special Prosecutor, Office of the Ombudsman, dated April 28, 2004 finding probable cause that petitioners violated Sections 3(e) and 3(h) of Republic Act No. 3019 and the Resolution dated October 19, 2005 denying petitioners' Motion for Reconsideration, are hereby AFFIRMED. SO ORDERED.

Panganiban, Austria-Martinez, Callejo, Sr., Chico-Nazario, , J.J., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 102420 December 20, 1994 PROSPERO A. OLIVAS, petitioner, vs. OFFICE OF THE OMBUDSMAN (DEPUTY OMBUDSMAN-AFP), and ATTY. BIENVENIDO C. BLANCAFLOR, in his capacity as Ombudsman Investigator, respondents.

Fernandez &Olivas for petitioner.

MENDOZA, J.: This is a petition for certiorari and prohibition to annul the order, dated October 25, 1991, of respondent Ombudsman Investigator, requiring petitioner to submit his affidavit and those of his witnesses at the preliminary investigation of a case for unexplained wealth against petitioner, despite the fact that the Presidential Commission on Good Government, as complainant, had not reduced its evidence in the form of affidavits and submitted supporting documents. Petitioner, Major Gen. Prospero A. Olivas, was Commanding General of the PC Metrocom. He was retired from the Armed Forces of the Philippines effective February 26, 1986. Shortly thereafter letters were sent to the Presidential Commission on Good Government, some of them anonymous, charging him with violations of the Anti-Graft and Corrupt Practices Act (Rep. Act No. 3019) and the Unexplained Wealth Act (Rep. Act No. 1379). The letters were referred to the New Armed Forces of the Philippines Anti-Graft Board which the PCGG had created for the purpose of investigating cases of unexplained wealth and corrupt practices against AFP personnel, whether retired or in the active service. On August 28, 1986, petitioner was informed by the Bank of the Philippine Islands, Greenhills Branch, that a freeze order had been issued covering hi s current and savings accounts. In addition, a hold order was issued against him by the PCGG. Petitioner attended the hearings and filed his answer to the charges against him. On April 4, 1988, the Board recommended that the case against petitioner be provisionally dismissed without prejudice to its revival should new evidence be found. 1 Petitioner was informed of the findings of the Board in a letter sent to him by the Board on August 15, 1988. The letter read in part: The Board met and deliberated on your alleged unexplained wealth case in its regular meeting on 12 August 1988. In the deliberation of your case, the Board found that there is no prima facie case of unexplained wealth against you under R.A. 3019, the Anti-Graft and Corrupt Practices Act and thus resolved to have your case dropped and closed for insufficiency of evidence. WHEREFORE, you are hereby officially informed that the Board has cleared you of the unexplained wealth against you, without prejudice to have you re-investigated should new evidence on graft and corrupt practices or unexplained wealth against you be brought to the attention of the Board. 2 However, the PCGG disapproved the findings and recommendation of the AFP Anti-Graft Board and ordered a review of the case. On February 6, 1989, it issued subpoenas to petitioner and to the AFP Anti-Graft Board, directing them to appear before Fiscals Arturo T. De Guia and Peter T. Tabang on February 21, 1989, at 2:00 p.m. On April 12, 1989, Fiscal Tabang recommended that the Board's findings be affirmed. In his memorandum to the PCGG, Fiscal Tab ang stated: After our perusal and consideration of the records of this case, the Board's resolution of April 4, 1988 appears to be supported by the evidence on record. Furthermore, the Board, thru its counsel, Col. Ernesto Punsalang, manifested that there are no new nor additional evidence against Gen. Olivas (Hearing of February 21, 1988). Likewise, on March 15, 1989, Gen. Olivas, in his Manifestation and Motion dated March 1, 1989, further clarified his position and established that the balance of P32,725.00 (or supposed difference in the Financial Analysis of Capt. Samuel Padilla), should be reduced to only P5,774.73. To the said Manifestation and Motion, the Board's counsel offered no opposition, reply nor comment. Thus, on the basis of the foregoing premises, it is hereby recommended that the Board's resolution of April 4, 1988 be affirmed and approved. 3

Apparently the recommendation of Fiscal Tabang was disapproved because petitioner received another subpoena ordering him to a ppear before Prosecutor DonatoSor. Suyat, Jr. on August 18, 1989. In that hearing, petitioner was ordered to explain certain details regarding documents submitted by him. The directive was later embodied in an order dated August 21, 1989. Petitioner agreed, but subsequently he filed a "Motion for Clarification with Alternative Prayer for Dismissal" in which he complained that, as of that date, no sworn complaint had been filed against him; that no affidavits and supporting documents had been submitted in eviden ce against him to support the charge of unexplained wealth; that the case was denominated as "AFP Anti-Graft Board v. MGen. Prospero A. Olivas" and yet the Anti-Graft Board had not filed a complaint against him but, on the contrary, had recommended the dismissal of the charges against him; that as there was no valid complaint, there was no legal basis for conducting a preliminary investigation; and that the PCGG had no jurisdiction over his person since it had not been alleged, as required under 2(a) of Executive Order No. 1, 4that he was one of the relatives, subordinates and close associates of former President Marcos and that the property which was the subject of the investigation was ill-gotten wealth which had been acquired "by taking undue advantage of [his] public office and/or using [his] power, authority, influence, connections, or relationship." Petitioner prayed that a copy of the complaint, together with affidavits and other supporting documents, if any, be furnished to him, otherwise the preliminary investigation should be terminated and the freeze and hold orders previously issued lifted. 5 On November 2, 1989, Commissioner Maximo A. Maceren denied petitioner's motion and gave him five days from notice within which to submit his written explanation/clarification. Petitioner filed a motion for reconsideration, citing the fact that the charges against him had previously been dismissed by the AFP Anti-Graft Board and by Fiscal Tabang and, therefore, there was no cause of action against him. However, his motion was denied, and an order was i ssued directing him to submit his explanation on certain matters as enumerated in the order dated August 21, 1989. On February 22, 1990, petitioner filed a "Compliance with Reservations Ex AbundantiCausa," claiming that he had submitted to the AFP Anti-Graft Board his income tax returns for the years from 1979 to 1985. On November 23, 1990, the PCGG indorsed the records of the case, entitled "AFP Anti-Graft Board, Camp Crame, Quezon City v. Maj. Gen. Prospero Olivas," to the Office of the Ombudsman. On April 22, 1991 and June 17, 1991, the Ombudsman issued subpoenas ducestecum to BIR Commissioner Jose U. Ong ordering him or his representative to appear before the Investigator and to bring the income tax returns of petitioner for the years from 1978 to 1985. On June 24, 1991, the BIR Commissioner forwarded petitioner's income tax returns for the years 1982 and 1983. It certified that the BIR did not have any record of the income tax returns of petitioner for the years 1978, 1979, 1980, 1981, 1984 and 1985. On September 12, 1991, petitioner received a subpoena 6 in the case, now entitled "Presidential Commission on Good Government v. Maj. Gen. Prospero Olivas (Ret.)," for violation of Rep. Act No. 1379 (Unexplained Wealth), ordering him to appear at a hearing on September 16, 1991 and to submit his affidavit and those of his witnesses. 7 The subpoena stated: A reinvestigation conducted by this office on the findings of the AFP Anti-Graft Board which was endorsed to us by complainant, Presidential Commission on Good Government, shows that you have failed to file income tax returns for the years 1978, 1979, 1980, 1981, 1984, and 1985. Consequently, a recomputation of this unexplained wealth shows a balance of P1,477,044.54, instead of P32,725.00 earlier found by the AFP Anti-Graft Board. For this purpose, we enclose as Schedule "A," "B," and "C" the basis of our revised computation of your unexplained wealth account. Petitioner asked for a copy of the sworn complaint against him and to be shown the basis of the figures contained in the sche dules attached to the subpoena, as basis for filing his counter-affidavit. He asked for 10 days from receipt of the documents within which to submit his evidence. On October 25, 1991, respondent Bienvenido C. Blancaflor, Ombudsman Investigator in the Office of the Ombudsman, issued the assailed order, reiterating the earlier finding that petitioner had failed to file his income tax returns for the years 1978, 1979, 1980, 1981, 1984, and 1985, with the consequence of invalidating the computation made by the AFP Anti-Graft Board of respondent's unexplained wealth and significantly increasing it from P32,725.00 to P1,477,044.54. The dispositive portion of the order reads: WHEREFORE, premises considered, respondent is again directed for the last time to file his counter-affidavit and supporting affidavits of his witnesses, if any, and any other evidence within the inextendible period of five (5) days from receipt hereof; otherwise, failure on his part to comply with this Order will compel this office to resolve this case based on the evidence on record. Let this case be set for preliminary investigation on November 7, 1991 at 2:00 o'clock in the afternoon. SO ORDERED. 8 Hence this petition for certiorari and prohibition. Petitioner claims that the respondent Deputy Ombudsman committed grave abuse of discretion amounting to lack or excess of jurisdiction in compelling him to submit his counter-affidavit in the absence of a complaint and affidavits of witnesses against him.

We gave due course to the petition and, after considering the respondents' comment as their answer, required the parties to file memoranda. They have done that and now we must decide this case. The question for decision is whether the petitioner may be compelled to file his counter-affidavit notwithstanding the fact that no sworn complaint or affidavit has been filed against him. The gist of the petitioner's contention is that a sworn complaint is a mandatory requirement for the purpose of conducting a preliminary investigation. He invokes Rule II, 4 of the Rules of Procedure of the Office of the Ombudsman which provides: Sec. 4. Procedure The preliminary investigation of cases falling under the jurisdiction of the Sandiganbayan and Regional Trial Courts shall be conducted in the manner prescribed in Section 3, Rule 112 of the Rules of Court , subject to the following provisions: a) If the complaint is not under oath or is based only on official reports, the investigating officer shall require the complainant or supporting witnesses to execute affidavits to substantiate the complaints . b) After such affidavits have been secured, the investigating officer shall issue an order, attaching thereto a copy of the affidavits and other supporting documents, directing the respondent to submit, within ten (10) days from receipt thereof, his counter-affidavits and controverting evidence with proof of service thereof on the complainant. The complainant may file reply affidavits within ten (10) days after service of the counteraffidavits. On the other hand, respondents in their Memorandum argue: There is a substantial distinction between a criminal complaint filed by a private complainant with the Office of the Ombudsman and one endorsed to the same Office by another Government agency such as the PCGG, the NBI, the COA, and the AFP or PNP. In the case of a private complainant, sub-paragraph (a), Section 4 of Administrative Order No. 07 provides that the "investigating officer shall require the complainant or supporting witnesses to execute affidavits to substantiate the complaints." On the other han d, in the instant case which was referred to the Office of the Ombudsman by the PCGG, Respondents maintain that the letter dated November 23, 1991 of the PCGG to the Office of the Ombudsman transmitting the entire records of the case to respondents' Office serve as the complaint and the PCGG, as the complainant, in compliance with existing procedure on preliminary investigation. In support of their contention, they cite Rule I, 3 of the Rules of Procedure of the Office of the Ombudsman, which states: Sec. 3. Form of complaints, grievances or requests for assistance. Complaints may be in any form, either verbal or in writing. For a speedier disposition of the complaint, however, it is preferable that it be in writing and under oath. A complaint which does not disclose the identity of the complainant will be acted upon only if it merits appropriate consideration, or contains sufficient leads or parti-culars to enable the taking of further action. Grievances or requests for assistance may likewise be verbal or in writing. In any case, the requesting or complaining party must indicate his address and telephone number, if any. Respondents contend that the present proceedings are merely a continuation of the investigation conducted by the PCGG and so the petitioner cannot claim ignorance of the charges against him and that he freely participated in the proceedings before the PCGG even without any affidavit or complaint. They call attention to the fact that this case was indorsed by the PCGG, after this Court had ruled in Cojuangco, Jr. v. PCGG 9 that the PCGG, after acting as law enforcer by gathering evidence against a party and filing a civil complaint against him, could not thereafter act as a judge for the purpose of determining in a preliminary investigation whether there was probable cause for prosecuting the same party. Additionally, respondents contend that the procedure outlined in Rule II, 4 of the Rules of Procedure of the Office of the Ombudsman refers to preliminary investigations conducted in criminal cases, whereas proceedings under Rep. Act No. 1379 are civil in nature. We find for petitioner. A useful starting point for a discussion of the issue in this case is the decision in Cojuangco, Jr. v. PCGG 10 in which we described the general power of investigation of the PCGG as consisting of two stages: the first stage, called the criminal investigation, is a fact-finding inquiry conducted by law enforcement agents, whereby they gather evidence and interview witnesses and afterwards assess the evidence so that, if they find sufficient basis, they can file a complaint for the purpose of preliminary investigation. The second stage, called the preliminary investigation stage, is conducted for the purpose of ascertaining if there is sufficient evidence to bring a person to trial. 11 We held in that case that, having found petitioner prima facieguilty of violation of Rep. Act No. 3019, for which reason it issued a freeze order against him and filed a civil complaint for recovery of alleged ill-gotten wealth, the PCGG could not thereafter act as an impartial judge in conducting a preliminary investigation of criminal complaints based on the same facts found by it to constitute prima facie evidence against petitioner. We there said: In our criminal justice system, the law enforcer who conducted the criminal investigation, gathered the evidence and thereafter filed the complaint for the purpose of preliminary investigation cannot be allowed to conduct the preliminary investigation of his own complaint. It is to say the least arbitrary and unjust. It is in such instances that We say one cannot be "a prosecutor and judge at the same time." Having gathered the evidence and filed the complaint as a law enforcer, he cannot be expected to handle with impartiality the preliminary investigation of his own complaint, this time as a public prosecutor. 12

In accordance with this ruling, the PCGG indorsed the case at bar to the Office of the Ombudsman. It may be assumed that the PCGG had found sufficient evidence against petitioner to warrant submitting the case for preliminary investigation. For the rationale of Cojuangco, Jr. v. PCGG is that the role of law enforcer must not be confounded with that of the public prosecutor who must determine whether there was probable cause for filing the case in court. In this case, the PCGG had issued a freeze order against petitioner's bank accounts and a hold order which it refused to lift despite the fact that the AFP panel had provisionally cleared him. Respondents justify their order to petitioner to submit his evidence, even though there is no formal complaint, on the basis of Rule I, 3 of the Rules of Procedure of the Office of the Ombudsman which provides that complaints filed with that office may be "in any form, either verbal or in writing." The cases which the Ombudsman may investigate, however, are not limited to criminal cases. They include those involving acts and omissions of public officials which are alleged to be merely "unjust, improper or inefficient." 13 It is to such cases that Rule I, 3 applies primarily. Indeed, as designated "protectors of the people," the Ombudsman and his deputies are required by the Constitution 14 to "act promptly on complaints filed in any form or manner against public officials and employees." Even in investigations looking to the prosecution of a party, Rule I, 3 can only apply to the general criminal investigation, which in the case at bar was already conducted by the PCGG. But after the Ombudsman and his deputies have gathered evidence and their investigation has ce ased to be a general exploratory one and they decide to bring the action against a party, their proceedings become adversary and Rule II, 4(a) then applies. This means that before the respondent can be required to submit counter-affidavits and other supporting documents, the complainant must submit his affidavit and those of his witnesses. This is true not only of prosecutions of graft cases under Rep. Act No. 3019 but also of actions for the recovery of unexplained wealth under Rep. Act No. 1379, because 2 of this latter law requires that before a petition is filed there must be a "previous inquiry similar to preliminary investigation in criminal cases." Indeed, since a preliminary investigation is designed to screen cases for trial, only evidence may be considered. While reports and even raw information may justify the initiation of an investigation, the stage of preliminary investigation can be held only after sufficient evidence has been gathered and evaluated warranting the eventual prosecution of the case in court. As this Court held in Cojuangco, Jr. v. PCGG. Although such a preliminary investigation is not a trial and is not intended to usurp the function of the trial court, it is not a casual affair. The officer conducting the same investigates or inquires into the facts concerning the commission of the crime with the end in view of determining whether or not an information may be prepared against the accused. Indeed, a preliminary investigation is in effect a realistic judicial appraisal of the merits of the case. Sufficient proof of the guilt of the accused must be adduced so that when the case is tried, the trial court may not be bound as a matter of law to order an acquittal. A preliminary investigation has then been called a judicial inquiry. It is a judicial proceeding. An act becomes judicial when there is opportunity to be heard and for the production and weighing of evidence, and a decision is rendered thereon. 15 The lack of a complaint and affidavits cannot be excused on the plea that this case originated in anonymous letters sent to t he PCGG. Because of leads furnished by those letters it would seem that the PCGG has found sufficient evidence justifying its demand to petitioner to explai n. It is incumbent upon it as complainant to reduce the evidence into affidavits. For example, the subpoena issued to petitioner was accompanied by schedules showing how petitioner was found to have unexplained wealth amounting to P1,477,044.54. The figures contained in these schedules must be verified under oath by PCGG investigators who must certify to facts either of their own knowledge or from official records. It is only after the PCGG has submitted its affidavits and other documents that petitioner may be required to explain, also under oath. It is from such affidavits and counter-affidavits that respondents can then determine whether there is probable cause for bringing the case in court against petitioner. This is a requirement not only of Rule II, 4(a) of respondents' Rules of Procedure but also of due process in adversary pro ceedings. While those engaged in the investigation of graft and corruption in the government must be able to respond swiftly to complaints concerning public office, they must at the same time take care that their investigation is not used to harass or wreak vengeance on those in public office. This was an abiding concern of the Constitutional Commission 16 to which we must show equal concern. To conclude, the PCGG has become the complainant in this case. Its case must stand or fall on the evidence it has. Petitioner cannot be compelled to submit his evidence in the form of counter-affidavits and supporting documents before the PCGG, as complainant, has embodied its evidence in affidavits or sworn statements. WHEREFORE, the petition is GRANTED and the questioned order dated October 25, 1991 is SET ASIDE. SO ORDERED.

Narvasa, C.J., Padilla, Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Quiason, Puno, Vitug and Kapunan, JJ., concur. Feliciano, J., is on leave.