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RULE 112 PRELIMINARY INVESTIGATION

1. 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.: FACTS: An information for estafa against Mario Fl. Crespo was filed by Assistant Fiscal de Gala with the approval of the Provincial Fiscal filed before the Circuit Criminal Court of Lucena City. When the case was set for arraignment 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. The court, presided by judge Mogul, denied the motion. A motion for reconsideration was filed but to no avail. A petition for certiorari and prohibition was filed by the accused before the Court of Appeals, which restrained Judge Mogul from proceeding with the arraignment until the Department of Justice shall have finally resolved the petition for review. Undersecretary of Justice, Macaraig, Jr.,in resolving the petition for review reversed the resolution and directed the fiscal to move for dismissal of the information filed against the accused. A motion to dismiss for insufficiency of evidence was filed by the Provincial Fiscal with the trial court. The Judge denied the motion and set the arraignment. The accused then filed a petition for certiorari, prohibition and mandamus before the Court of Appeals, to which it issued a restraining. Court of Appeals then dismissed the petition and lifted the restraining order. ISSUE: 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 on the merits. RULING: It is through the conduct of a preliminary investigation that the fiscal determines the existence of a prima 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.

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. 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 raise thereafter should be addressed for the consideration of the Court. 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. The Court is the best and sole judge on what to do with the case before it. The determination of the case is within its exclusive jurisdiction and competence. A motion to dismiss the case filed by the fiscal should be addressed to the Court who has the option to grant or deny the same. It does not matter if this is done before or after the arraignment of the accused or that the motion was filed after a reinvestigation or upon instructions of the Secretary of Justice who reviewed the records of the investigation. WHEREFORE, the petition is DISMISSED pronouncement as to costs. SO ORDERED. G.R. No. L-60962 July 11, 1986 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROLANDO MONTEVERDE y CONE alias "EDUARDO MASCARIAS, accusedappellant. for lack of merit without

PARAS, J.: FACTS: Rolando Monteverde and his co-accused Reynaldo Codera Jr forcibly entered the house of Spouses Tomas and Teresita. Once inside, they hogtied Tomas, gagged him and placed him under the bed. With the use of a gun and a knife, intimidated Teresita and raped her three. In the same morning, they ransacked the house and left with their loot valued at P300.00 plus cash money of P15.00. Teresita and her husband immediately reported the matter to the police. The accused were positively identified by the spouses. An information for Robbery with rape was filed against the accused. In a sworn statement before the NBI, Reynaldo admitted that they planned the robbery. Finding the testimonies of the spouses credible, the trial court convicted the appellant and Reynaldo. Hence, this appeal.

ISSUE: Does absence of a preliminary investigation affect the validity of the information if no objection was raised by the accused? RULING: A preliminary investigation is mandatory and a certification that such investigation was held is required, still this rule does not apply if the issue is raised only after conviction. Thus, it has been held that after a plea of not guilty to the information, an accused is deemed to have foregone the right of preliminary investigation and to have abandoned the right to question any irregularity that surrounds it (See Zacarias vs. Cruz, 30 SCRA 728, People vs. Beltran, 32 SCRA 71. See also People vs. Arbola, L16936, Aug. 5,1985). Judgment of conviction is AFFIRMED, with the modification that due to the lack of the necessary votes, the death penalty is reduced to reclusion perpetua, with costs against the accused.

G.R. No. L-14732

January 28, 1961

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JOSEFINO G. SELFAISON, NEMESIO DALISAY, DOMINGO URETA and BERNARDO BAUTISTA, defendants-appellants. GUTIERREZ DAVID, J.: FACTS: Josefino G. Selfaison, Nemesio Dalisay, Domingo Ureta and Bernardo Bautista with Arsenio Amacio, Reynaldo Bautista, Domingo Salde and Amrafil Dalisay were accused in an amended information of the crime of robbery with rape before Court of First Instance of Capiz. The complainants Angelina Maghibon, 19 years old, and Angelita Sinag, 16, boarded a vessel bound for Capiz. The ship arrived at the port, the two girls saw an old acquaintance, Josefino G. Selfaison, and boarded the passenger truck he was driving. At a certain barrio Selfaison stopped the truck, got off and went to his house. After a short while, he returned accompanied by Domingo Ureta, Domingo Salde, Amrafil Dalisay and Reynaldo Bautista who accommodated themselves on top of the truck. At a mountainous and isolated place, Selfaison suddenly stopped the truck. He and the other men then alighted and went to the rear of the truck. After a while, they returned and forced the girls to go down were they raped and robbed both girls.

Angelita Sinag and Angelina Maghibon filed separate complaints in the Justice of the Peace Court for robbery with rape. After preliminary investigation, warrants of arrest were issued against the eight accused. As the returns on the said warrants stated that there were no persons answering to the names of Jose G. Selfaison, Raymundo Dalisay and alias Mengoy, the private prosecutor filed a joint motion to correct the complaints asking that the names of the accused Jose G. Selfaison be changed to Josefino G. Selfaison, Raymundo Dalisay to Nemesio Dalisay, Domingo Martinez to Domingo Salde and alias to Domingo Ureta. The motion was granted. Thereafter, Josefino G. Selfaison, Nemesio Dalisay, Bernardo Bautista and Domingo Ureta were arrested, but the other accused remained at large. The trial court rendered the judgment of conviction against the accused. ISSUE: May the right to preliminary investigation be impliedly waived? RULING: The defense finally contends that the appellants were deprived of their right to preliminary investigation. The contention deserves scant consideration, for nothing appears affirmatively on the record that such preliminary investigation has not been had. On the other hand, it is presumed that the inferior court proceeded in accordance with law. (People vs. Silos and Bagano, G.R. No. L-5158, March 28, 1952.) At any rate, appellants appear to have waived such right, because immediately after their arrest, they filed bonds for their release and subsequently proceeded to trial, without previously claiming that they did not have the benefit of a preliminary investigation. (People vs. Ricarte, 49 Off. Gaz., 974; People vs. Quinto, 60 Phil. 451; People vs. Moreno, 77 Phil. 548; Bustos vs. Lusero, 46 Off. Gaz. [Supp.] 445.) With the above modification, the judgment appealed from is hereby affirmed in all other respects. With costs. 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.: FACTS: Eldon Maguan was driving his car along Wilson St., San Juan, Metro Manila, heading towards P. Guevarra St. Petitioner entered Wilson St. 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.

The petitioner was positively identified by witnesses as the same person who had shot Maguan. Having established that the assailant was probably the petitioner, the police launched a manhunt for petitioner. 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. The police promptly filed a complaint for frustrated homicide against petitioner with the Office of the Provincial Prosecutor of Rizal. First Assistant Provincial Prosecutor 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. 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 wounds. The Prosecutor filed an information for murder before the Regional Trial Court. 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. Counsel for petitioner filed with the Prosecutor an omnibus motion for immediate release and proper preliminary investigation, alleging that no preliminary investigation had been conducted before the information was filed. Petitioner also prayed that he be released on recognizance or on bail, which was approved. The Prosecutor filed with the Regional Trial Court a motion for leave to conduct preliminary investigation, which motion had been granted. However, respondent Judge motu proprio issued an Order, embodying the following: (1) the 12 July 1991 Order which granted bail was recalled; petitioner was given 48 hours from receipt of the Order to surrender himself; (2) the 16 July 1991 Order which granted leave to the prosecutor to conduct preliminary investigation was recalled and cancelled; (3) petitioner's omnibus motion for immediate release and preliminary investigation dated 11 July 1991 was treated as a petition for bail and set for hearing on 23 July 1991. On 19 July 1991, petitioner filed a petition for certiorari, prohibition and mandamus before the Supreme Court assailing the 17 July 1991 Order, contending that the information was null and void because no preliminary investigation had been previously conducted, in violation of his right to due process. Petitioner also moved for suspension of all proceedings in the case pending resolution by the Supreme Court of his petition; this motion was, however, denied by respondent Judge. On 23 July 1991, petitioner surrendered to the police.

By a Resolution dated 24 July 1991, this Court remanded the petition for certiorari, prohibition and mandamus to the Court of Appeals. On 16 August 1991, respondent Judge issued an order in open court setting the arraignment of petitioner on 23 August 1991. On 19 August 1991, petitioner filed with the Court of Appeals a motion to restrain his arraignment. On 23 August 1991, respondent judge issued a Commitment Order directing the Provincial Warden of Rizal to admit petitioner into his custody at the Rizal Provincial Jail. On the same date, petitioner was arraigned. In view, however, of his refusal to enter a plea, the trial court entered for him a plea of not guilty. The Trial court then set the criminal case for continuous hearings on 19, 24 and 26 September; on 2, 3, 11 and 17 October; and on 7, 8, 14, 15, 21 and 22 November 1991. 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 dismissing the two (2) petitions, on the following grounds:
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a. Petitioner's warrantless arrest was valid because the offense for which he was arrested and charged had been "freshly committed." His identity had been established through investigation. At the time he showed up at the police station, there had been an existing manhunt for him. During the confrontation at the San Juan Police Station, one witness positively identified petitioner as the culprit. b. Petitioner's act of posting bail constituted waiver of any irregularity attending his arrest. He waived his right to preliminary

investigation by not invoking it properly and seasonably under the Rules. c. The trial court did not abuse its discretion when it issued the 17 July 1991 Order because the trial court had the inherent power to amend and control its processes so as to make them conformable to law and justice. d. Since there was a valid information for murder against petitioner and a valid commitment order (issued by the trial judge after petitioner surrendered to the authorities whereby petitioner was given to the custody of the Provincial Warden), the petition for habeas corpus could not be granted. On 3 October 1991, the prosecution presented three (3) more witnesses 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 applicable and because petitioner had declined to waive the provisions of Article 125 of the Revised Penal Code, the Prosecutor was legally justified in filing the information for murder even without preliminary investigation. On the other hand, petitioner argues that he was not lawfully arrested without warrant because he went to the police station six (6) days after the shooting which he had allegedly perpetrated. Thus, petitioner argues, the crime had not been "just committed" at the time that he was arrested. Moreover, none of the police officers who arrested him had been an eyewitness to the shooting of Maguan and accordingly none had the

"personal knowledge" required for the lawfulness of a 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 nonavailability 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 investigation. The Solicitor General contends that that omnibus motion should have been filed with the trial court and not with the Prosecutor, and that the petitioner should accordingly be held to have waived his right to preliminary investigation. We do not believe that waiver of petitioner's statutory right to preliminary investigation may be predicated on such a slim basis. The preliminary investigation was to be conducted by the Prosecutor, not by the Regional Trial Court. It is true that at the time of filing of petitioner's omnibus motion, the information for murder had already been filed with the Regional Trial Court: it is not clear from the record whether petitioner was aware of this fact at the time his omnibus motion was actually filed with the Prosecutor. In Crespo v. Mogul, 19 this 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. xxx xxx xxx The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any disposition of the case [such] as its dismissal or the conviction or acquittal of the accused rests in the sound discretion of the Court. Although the fiscal retains the direction and control of the prosecution of criminal cases even while the case is already in Court he cannot impose his opinion on the

trial court. The Court is the best and sole judge on what to do with the case before it. . . . 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 in court asking for leave to conduct preliminary investigation, he clearly if impliedly recognized that petitioner's claim to preliminary investigation was a legitimate one. We would clarify, however, that contrary to petitioner's contention the failure to accord preliminary investigation, while constituting a denial of the appropriate and full measure of the statutory process of criminal justice, did not impair the validity of the information for murder nor affect the jurisdiction of the trial court. 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 forthwith 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 finding of probable cause. In any event, the constitutional point is that petitioner was not accorded what he was entitled to by way of procedural due process. 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 de oficio. 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. 30 If 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 the 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 cancellation of bail at the conclusion of the preliminary investigation. G.R. No. 134744 January 16, 2001

GIAN PAULO VILLAFLOR, petitioner, vs. DINDO VIVAR y GOZON, respondent. PANGANIBAN, J.: FACTS: An information for slight physical injuries was filed against Respondent Dindo Vivar. The case was from the alleged mauling of Petitioner by respondent. When the injuries sustained by petitioner turned out to be more serious than they had appeared at first, an Information for more serious physical injuries, was filed against respondent. The earlier charge of slight physical injuries was withdrawn. At the same time, another information for grave threats was filed against respondent. Respondent posted a cash bond for serious physical injuries. Instead of filing a counteraffidavit as required by the trial court, he filed, a Motion to Quash the Information in grave threats. He contended that the latter should have absorbed the threat, having been made in connection with the charge of serious physical injuries. The Metropolitan Trial Court (MTC) denied the Motion to Quash. Thus, he was duly arraigned in the grave threats case, and he pleaded not guilty. Respondent filed a Petition for Certiorari with the RTC of Muntinlupa City. RTC rendered a judgment ordering dismissal of the case for lack of preliminary investigation. ISSUE: Can the court motu propio order the dismissal of two (2) criminal cases on the ground that the public prosecutor failed to conduct a preliminary investigation? Is failure to conduct preliminary investigation be considered a ground to quash the criminal Informations? RULING: Preliminary investigation is "an inquiry or proceeding to determine whether sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial." A component part of due process in criminal justice, preliminary investigation is a statutory and substantive right accorded to the accused before trial. To deny their claim to a preliminary investigation would be to deprive them of the full measure of their right to due process. However, the absence of a preliminary investigation does not impair the validity of the information or otherwise render it defective. Neither does it affect the jurisdiction of the court or constitute a ground for quashing the information.

Furthermore, we do not agree that a preliminary investigation was not conducted. In fact, the assistant city prosecutor of Muntinlupa City made a preliminary investigation for slight physical injuries. The said Information was, however, amended when petitioner's injuries turned out to be more serious and did not heal within the period specified in the Revised Penal Code. As previously stated, the absence of a preliminary investigation does not impair the validity of the information or otherwise render it defective. Neither does it affect the jurisdiction of the court over the case or constitute a ground for quashing the information. Section 3, Rule 117 of the Revised Rules of Criminal Procedure provides the grounds on which an accused can move to quash the complaint or information. Nowhere in the above-mentioned section is there any mention of a lack of a preliminary investigation as a ground for a motion to quash. Moreover, such motion is a prohibited pleading under Section 19 of the Revised Rules on Summary Procedure. In the present case, the RTC therefore erred in granting herein respondent's Motion to Quash. Furthermore, we stress that the failure of the accused to assert any ground for a motion to quash before arraignment, either because he had not filed the motion or had failed to allege the grounds therefor, shall be deemed a waiver of such grounds. In this case, he waived his right to file such motion when he pleaded not guilty to the charge of grave threats. THE MINOR FRANCISCO JUAN LARRANAGA, Represented in this Suit by his mother, MARGARITA G. Present: LARRANAGA, petitioner vs. COURT OF APPEALS and PEOPLE OF THE PHILIPPPINES. respondents. RESOLUTION PUNO, J.: FACTS: Petitioner Francisco Juan Larranaga is charged with two counts of kidnapping and serious illegal detention pending before the Regional Trial Court (RTC), Branch 7, Cebu City. The alleged kidnapping was committed in 1997. One of the victims, Marijoy Chiong, was found dead while the other victim, Jacqueline Chiong, remains missing to date. Some members of the Philippine National Police Criminal Investigation Group (PNP CIG) went to the Center for Culinary Arts in Quezon City to arrest petitioner, albeit without warrant. Petitioner, represented by his mother, Margarita G. Larranaga, filed with this Court a petition for certiorari, prohibition and mandamus allegeding that he was denied the right to preliminary investigation. The Supreme Court issued a resolution holding that petitioner was deprived of his

right to preliminary investigation when the City Prosecutor of Cebu insisted that he was only entitled to an inquest investigation. Petitioner then filed with the RTC of Cebu an urgent ex parte motion praying for his immediate release. Judge Ocampo, Presiding Judge of RTC Branch 7, Cebu City, issued an order deferring the resolution of petitioners motion since the trial court has not yet received an official copy of resolution of the Supreme Court. Furthermore, Judge Ocampo called the Courts attention to the fact that petitioner has been arraigned and waived his right to preliminary investigation Petitioner filed with Supreme Court an urgent motion praying that Judge Ocampo be directed to order petitioners immediate release. Judge Ocampo filed a letter-complaint before the Supreme Court alleging that petitioners counsels, deliberately withheld from Supreme Court the omnibus order, supplemental order and order of arraignment, issued by him. ISSUE: Whether petitioner is entitled to a regular preliminary investigation and should be released from detention pending the investigation. RULING : Section 7 of Rule 112 applies only to persons lawfully arrested without a warrant. Petitioner in this case was, in the first place, not arrested either by a peace officer or a private person. To be sure, even if petitioner were arrested by the PNP CIG personnel, such arrest would still be illegal because of the absence of a warrant. Section 5 of Rule 113 states when a warrantless arrest is deemed lawful, thus: Sec. 5. Arrest without a warrant; when lawful.-A peace officer or a private person may, without a warrant, arrest a person: (a)When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b)When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; xxx.. In cases falling under paragraphs (a) and (b) hereof, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail, and he shall be proceeded against in accordance with Rule 112, Section 7. It does not appear in the case at bar that petitioner has just committed, is actually committing or is attempting to commit an offense when the police officers tried to arrest him on September 15, 1997. In fact, petitioner was attending classes at the Center for Culinary Arts at that time. 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. Petitioner, in this case, has been actively and consistently demanding a regular preliminary investigation even before he was charged in court. Also, petitioner refused to enter a plea during the arraignment because there was a pending case in this Court regarding his right to avail

of a regular preliminary investigation. Clearly, the acts of petitioner and his counsel are inconsistent with a waiver. Preliminary investigation is part of procedural due process. It cannot be waived unless the waiver appears to be clear and informed. Petitioners detention at the Bagong Buhay Rehabilitation Center is legal in view of the information and the warrant of arrest against him. The absence of preliminary investigations does not affect the courts jurisdiction over the case. Nor do they impair the validity of the information or otherwise render it defective; but, if there were no preliminary investigations and the defendants, before entering their plea, invite the attention of the court to their absence, the court, instead of dismissing the information, should conduct it or remand the case to the inferior court so that the preliminary investigation may be conducted

[G.R. Nos. 138859-60. February 22, 2001]

ALVAREZ ARO YUSOP, petitioner, vs. The Honorable SANDIGANBAYAN (First Division), respondent. PANGANIBAN, J.: FACTS: The Office of the Ombudsman for Mindanao issued a Resolution dated recommending the prosecution of Benjamin Arao, Frederick Winters, Pelaez Pantaran, Eduardo Dablo, Efren Sissay and the city jail warden of Pagadian City for violation of Article 269 of the Revised Penal Code and Section 3-a in relation to Section 3-e of Republic Act No. 3019 as amended base on an affidavit complaint. Accordingly, two Informations were filed with the Sandiganbayan. An Order of Arrest was issued by the Sandiganbayan . Petitioner, however, posted a bail bond before the Regional Trial Court of Dipolog City. On the same day, he filed a Motion To Remand Case To The Ombudsman - Mindanao For Preliminary Investigation. The Sandiganbayan denied the Motion of petitioner for his alleged failure to submit himself to the jurisdiction of the anti-graft court. Petitioner then filed a Motion to Dismiss, based on the lack of preliminary investigation. The Sandiganbayan resolved not to take action . On the scheduled arraignment, petitioner reiterated his claim that he had not been accorded preliminary investigation. The Sandiganbayan rejected his claim and proceeded with the arraignment. Hence, this recourse ISSUE: Whether the Sandiganbayan, despite being informed of the lack of preliminary investigation with respect to petitioner committed grave abuse of discretion in proceeding with his arraignment. RULING: Preliminary investigation is an inquiry or proceeding to determine whether there is sufficient ground to engender a well-founded belief that a crime has

been committed and the respondent is probably guilty thereof, and should be held for trial. The Court explained that the rationale of a preliminary investigation is to protect the accused from the inconvenience, expense and burden of defending himself in a formal trial unless the reasonable probability of his guilt shall have been first ascertained in a fairly summary proceeding by a competent officer. The Rules of Court requires such investigation before an information for an offense punishable by at least four years, two months and one day may be filed in court. Petitioner is charged in Criminal Case No. 24524 with violation of Section 3-a of RA 3019. Such offense is punishable with, among other penalties, imprisonment of six years and one month to fifteen years. Under the aforecited Rules, whether in the old or the revised version, he is entitled to a preliminary investigation. In Go v. Court of Appeals, this Court held 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. Conversely, if the accused does invoke it before arraignment, as the petitioner did in this case, the right is not waived. Neither did the filing of a bail bond constitute a waiver of petitioners right to preliminary investigation. Under Section 26, Rule 114 of the Revised Rules of Criminal Procedure, [a]n application for or admission to bail shall not bar the accused from challenging the validity of his arrest or the legality of the warrant issued therefor, or from assailing the regularity or questioning the absence of a preliminary investigation of the charge against him, provided that he raises them before entering his plea. x x x. We stress that the right to preliminary investigation is substantive, not merely formal or technical. To deny it to petitioner would deprive him of the full measure of his right to due process. Hence, preliminary investigation with regard to him must be conducted.

G.R. No. 109036 July 5, 1995 BARTOLOME F. MERCADO, petitioner, vs. The Honorable COURT OF APPEALS, FOURTH DIVISION, The Honorable CESAR C. PERALEJO, Presiding Judge of the Regional Trial Court, Branch 98, Quezon City and the Honorable CITY PROSECUTOR of Quezon City, respondents.

QUIASON, J.: FACTS: Petitioner is the accused for violation of B.P. Blg. 22 (Bouncing Check Law) before the Regional Trial Court Quezon City. Petitioner moved to defer his arraignment on the ground that he was not notified of the preliminary investigation. He claimed that the private complainant deliberately provided a wrong address in the issuance of the subpoena to him, preventing him from submitting his counter-affidavit.

Petitioner moved to cancel his arraignment which was denied and upon his refusal to enter a plea, respondent judge entered for him a plea of "not guilty." He then filed a petition for prohibition and mandamus with the Court of Appeals claiming among others that he was denied the right preliminary investigation. The appellate court denied his motion. ISSUE: Is a preliminary investigation conducted ex-parte by reason of the lack of notice to the respondent valid, where such omission is due to the deliberate misinformation of the complainant regarding the address of the respondent? RULING: Petitioner was not denied of his right to a preliminary investigation. It is uncontroverted that a subpoena was sent to his given address but it was returned unserved. Petitioner did not dispute that the address appearing in the official receipt of his cash bond was his address. The purpose of a preliminary investigation is for the investigating prosecutor to determine if a crime has been committed. A review of the evidence is thus necessary to establish probable cause and if the evidence so warrants, the investigating prosecutor is duty bound to file the corresponding information (Cruz, Jr. v. People, 233 SCRA 439 [1994]). Moreover, we see no irregularity in the ex-parte conduct of the proceedings. We had occasion to rule that preliminary investigations can be conducted ex-parte if the respondent can not be subpoenaed or does not appear after due notice (New Rules on Criminal Procedure, Rule 112, Section 3(d); Cf. Rodriguez v. Sandiganbayan, 120 SCRA 659 [1983]). We reiterate our ruling in Rodis, Sr. v. Sandiganbayan, 166 SCRA 618 (1988), that the New Rules on Criminal Procedure "does not require as a condition sine qua non to the validity of the proceedings [in the preliminary investigation] the presence of the accused for as long as efforts to reach him were made, and an opportunity to controvert the evidence of the complainant is accorded him. The obvious purpose of the rule is to block attempts of unscrupulous respondents to thwart the prosecution of offenses by hiding themselves or by employing dilatory tactics." WHEREFORE, the petition is DENIED. SO ORDERED.

[G.R. No. 110315. January 16, 1998]

RENATO CUDIA, petitioner, vs. THE COURT OF APPEALS, The HON.CARLOS D. RUSTIA, in his capacity as Presiding Judge of the Regional Trial Court Branch LVI, Angeles City, respondents. DECISION
ROMERO, J.:

Petitioner assails the decisioni<!--[if !supportFootnotes]-->[1]<!--[endif]--> of the Court of Appeals dated May 14, 1993 dismissing his petition and finding that he had not been placed in double jeopardy by the filing of a second information against him, although a first information charging the same offense had been previously dismissed, over petitioners vigorous opposition. The factual antecedents of the case are as follows: On June 28, 1989, petitioner was arrested in Purok 6, Barangay Santa Inez, Mabalacat,ii<!--[if !supportFootnotes]-->[2]<!--[endif]--> Pampanga, by members of the then 174th PC Company, allegedly for possessing an unlicensed revolver. He was brought to Camp Pepito, Sto. Domingo, Angeles City, where he was detained. A preliminary investigation was thereafter conducted by an investigating panel of prosecutors. As a result thereof, the City Prosecutor of Angeles City filed an information against him for illegal possession of firearms and ammunition, docketed as Criminal Case No. 11542, which reads as follows:
That on or about the 28th day of June, 1989, in the City of Angeles, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously have in his possession and under his control one (1) .38 Cal. Revolver (paltik) without any Serial Number with six (6) live ammunitions, which he carried outside of his residence without having the necessary authority and permit to carry the same. ALL CONTRARY TO LAW.iii<!--[if !supportFootnotes]-->[3]<!--[endif]--> (Emphasis petitioners.)

The case was raffled to Branch 60 of the Regional Trial Court of Angeles City (hereafter the Angeles City RTC). Upon his arraignment on August 14, 1989, petitioner pleaded not guilty to the charges. During the ensuing pre -trial, the court called the attention of the parties to the fact that, contrary to the information, petitioner had committed the offense in Mabalacat, and not in Angeles City. Inasmuch as there was an existing arrangement among the judges of the Angeles City RTCs as to who would handle cases involving crimes committed outside of Angeles City, the judge ordered the re-raffling of the case to a branch assigned to criminal cases involving crimes committed outside of the city. Thereafter, the case was assigned to Branch 56 of the Angeles City RTC. On October 31, 1989 however, the provincial prosecutor of Pampanga also filed an information charging petitioner with the same crime of illegal possession of firearms and ammunition, docketed as Criminal Case No. 11987. The case was likewise raffled to Branch 56 of the Angeles City RTC. This prompted the prosecutor in Criminal Case No. 11542 to file a Motion to Dismiss/Withdraw the Information, stating that thru

inadvertence and oversight, the Investigating Panel was misled into hastily filing the Information in this case, it appearing that the apprehension of the accused in connection with the illegal possession of unlicensed firearm and ammunition was made in Bgy. Sta. Inez, Mabalacat, Pampanga, within the jurisdiction of the Provincial Prosecutor of Pampangaiv<!--[if !supportFootnotes]-->[4]<!--[endif]--> and that the Provincial Prosecutor had filed its own information against the accused, as a result of which two separate informations for the same offense had been filed against petitioner. The latter filed his opposition to the motion, but the trial court nonetheless, granted said motion to dismiss in its order dated April 3, 1990. On May 21, 1990, petitioner filed a Motion to Quash Criminal Case No. 11987 on the ground that his continued prosecution for the offense of illegal possession of firearms and ammunition for which he had been arraigned in Criminal Case No. 11542, and which had been dismissed despite his opposition would violate his right not to be put twice in jeopardy of punishment for the same offense. The trial court denied the motion to quash; hence, petitioner raised the issue to the Court of Appeals. The appellate court, stating that there was no double jeopardy, dismissed the same on the ground that the petitioner could not have been convicted under the first information as the same was defective. Petitioners motion for reconsideration was denied; hence, this appeal. Petitioner points out the following as errors of the Court of Appeals:
1. THE COURT OF APPEALS ERRED WHEN IT FOUND THAT THE CITY PROSECUTOR OF ANGELES CITY DID NOT HAVE THE AUTHORITY TO FILE THE FIRST INFORMATION. 2. THE COURT OF APPEALS ERRED IN HOLDING THAT THE FIRST JEOPARDY DID NOT ATTACH BECAUSE THE FIRST INFORMATION FILED AGAINST THE ACCUSED WAS NOT VALID.

We shall discuss the assigned errors jointly as they are closely related. Section 21, Article III of the 1987 Constitution provides that (n)o person shall be twice put in jeopardy of punishment for the same offense x x x. Pursuant to this provision, Section 7 of Rule 117 of the Rules of Court provides in part that (w)hen an accused has been convicted or acquitted, or the case against him dismissed or otherwise terminated without his express consent by a court of competent jurisdiction, upon a valid complaint or information or other formal charge sufficient in form and substance to sustain a conviction and after the accused had pleaded to the charge, the conviction or acquittal of the accused or the dismissal of the case shall be a bar to another prosecution for the offense charged, x x x. In order to successfully invoke the defense of double jeopardy, the following requisites must be present: (1) a first jeopardy must have attached prior to the second; (2) the first jeopardy must have been validly terminated; and (3) the second jeopardy must be for the same offense or the second offense includes or is necessarily included in the offense charged in the first information, or is an attempt to commit the same or a frustration thereof.v<!--[if !supportFootnotes]-->[5]<!--[endif]--> In determining when the first jeopardy may be said to have attached, it is necessary

to prove the existence of the following:


(a) (b) (c) (c) Court of competent jurisdiction Valid complaint or information Arraignment Valid plea

(e) The defendant was acquitted or convicted or the case was dismissed or otherwise terminated without the express consent of the accused.vi<!--[if !supportFootnotes]->[6]<!--[endif]-->

It is undisputed that petitioner was arraigned in Criminal Case No. 11542, that he pleaded not guilty therein, and that the same was dismissed without his express consent, nay, over his opposition even. We may thus limit the discussion to determining whether the first two requisites have been met. As to the first requisite, it is necessary that there be a court of competent jurisdiction, for jurisdiction to try the case is essential to place an accused in jeopardy. The Court of Appeals and the Solicitor General agreed that Branch 60, which originally had cognizance of Criminal Case No. 11542, had no jurisdiction over the case. In the words of the Solicitor General:
The first jeopardy did not also attach because Branch 60 of the Regional Trial Court of Angeles City was not the proper venue for hearing the case. Venue in criminal cases is jurisdictional, being an essential element of jurisdiction (Agbayani vs. Sayo, 89 SCRA 699). In all criminal prosecutions, the action shall be instituted and tried in the court of the municipality or territory wherein the offense was committed or any one of the essential ingredients thereof took place (People vs. Tomio, 202 SCRA 77). Although both Branches 60 and 56 are sitting in Angeles City, it is Branch 56 which has jurisdiction to try offenses committed in Mabalacat, Pampanga. Petitioner was arraigned before Branch 60, not Branch 56.vii<!--[if !supportFootnotes]-->[7]<!--[endif]-->

It must be borne in mind that the question of jurisdiction of a court over cases filed before it must be resolved on the basis of the law or statute providing for or defining its jurisdiction. Administrative Order No. 7, Series of 1983 provides that:
Pursuant to the provisions of Section 18 of B.P. Blg. 129, the Judiciary Reorganization Act of 1980, and Section 4 of Executive Order No. 864 of the President of the Philippines, dated January 17, 1983, the territorial areas of the Regional Trial Courts in Region One to Twelve are hereby defined as follows:

xxx
PAMPANGA

xxx xxx

xxx xxx

xxx

1. Branches LVI to LXII, inclusive, with seats at Angeles City comprising ANGELES CITY and the municipalities of Mabalacat, Magalang, and Porac as well as part of Clark Field U.S. Airbase.

xxx

xxx

xxx

Clearly, Branches 56 to 62 had jurisdiction over the respective territories as apportioned. Consequently, notwithstanding the internal arrangement of the judges of the Angeles City RTCs, Branch 60 indubitably had jurisdiction over instant case. Writ large in lawbooks is the doctrine that jurisdiction is conferred by law and not by mere administrative policy of any trial court. With respect to the second requisite, however, it is plainly apparent that the City Prosecutor of Angeles City had no authority to file the first information, the offense having been committed in the Municipality of Mabalacat, which is beyond his jurisdiction. Presidential Decree No. 1275, in relation to Section 9 of the Administrative Code of 1987, pertinently provides that:
Section 11. The provincial or the city fiscal shall:

xxx

xxx

xxx

b) Investigate and/or cause to be investigated all charges of crimes, misdemeanors and violations of all penal laws and ordinances within their respective jurisdictions and have the necessary information or complaint prepared or made against the persons accused. In the conduct of such investigations he or his assistants shall receive the sworn statements or take oral evidence of witnesses summoned by subpoena for the purpose.

xxx

xxx

x x x. (Emphasis supplied)

It is thus the Provincial Prosecutor of Pampanga, not the City Prosecutor, who should prepare informations for offenses committed within Pampanga but outside of Angeles City. An information, when required to be filed by a public prosecuting officer, cannot be filed by another.viii<!--[if !supportFootnotes]-->[8]<!--[endif]--> It must be exhibited or presented by the prosecuting attorney or someone authorized by law. If not, the court does not acquire jurisdiction.ix<!--[if !supportFootnotes]-->[9]<!--[endif]--> Petitioner, however, insists that his failure to assert the lack of authority of the City Prosecutor in filing the information in question is deemed a waiver thereof. x<!--[if !supportFootnotes]->[10]<!--[endif]--> As correctly pointed out by the Court of Appeals, petitioners plea to an information before he filed a motion to quash may be a waiver of all objections to it insofar as formal objections to the pleadings are concerned. But by clear implication, if not by express provision of the Rules of Court, and by a long line of uniform decisions,xi<!-[if !supportFootnotes]-->[11]<!--[endif]--> questions relating to want of jurisdiction may be raised at any stage of the proceeding. It is a valid information signed by a competent officer which, among other requisites, confers jurisdiction on the court over the person of the accused (herein petitioner) and the subject matter of the accusation. In consonance with this view, an infirmity in the information, such as lack of authority of the officer signing it, cannot be cured by silence, acquiescence, or even by express consent.xii<!--[if !supportFootnotes]-->[12]<!--[endif]--> In fine, there must have been a valid and sufficient complaint or information in the former prosecution. If, therefore, the complaint or information was insufficient because it was so defective in form or substance that the conviction upon it could not have been sustained, its dismissal without the consent of the accused cannot be pleaded. As the fiscal had no authority to file the information, the dismissal of the first information would not be a bar to petitioners subsequent prosecution. Jeopardy does not attach where a

defendant pleads guilty to a defective indictment that is voluntarily dismissed by the prosecution.xiii<!--[if !supportFootnotes]-->[13]<!--[endif]--> Petitioner next claims that the lack of authority of the City Prosecutor was the error of the investigating panel and the same should not be used to prejudice and penalize him. It is an all too familiar maxim that the State is not bound or estopped by the mistakes or inadvertence of its officials and employees.xiv<!--[if !supportFootnotes]-->[14]<!--[endif]--> To rule otherwise could very well result in setting felons free, deny proper protection to the community, and give rise to the possibility of connivance between the prosecutor and the accused. Finally, petitioner avers that an amendment of the first information, and not its dismissal, should have been the remedy sought by the prosecution. Suffice it to say that this Court, in Galvez vs. Court of Appealsxv<!--[if !supportFootnotes]-->[15]<!--[endif]--> has ruled that even if amendment is proper, pursuant to Section 14 of Rule 110, it is also quite plausible under the same provision that, instead of an amendment, an information may be dismissed to give way to the filing of a new information. In light of the foregoing principles, there is thus no breach of the constitutional prohibition against twice putting an accused in jeopardy of punishment for the same offense for the simple reason that the absence of authority of the City Prosecutor to file the first information meant that petitioner could never have been convicted on the strength thereof. As the first information was fatally defective for lack of authority of the officer filing it, the instant petition must fail for failure to comply with all the requisites necessary to invoke double jeopardy. WHEREFORE, premises considered, the petition is hereby DENIED. The decision of the Court of Appeals in CA-G.R. SP No. 24958 is AFFIRMED. No costs. SO ORDERED.

G.R. No. 116623 March 23, 1995 PEOPLE OF THE PHILIPPINES and HONORABLE ALFREDO GUSTILO, petitioners, vs. COURT OF APPEALS and ESAM GADI y ABDULLAH, respondents. FELICIANO, J.: FACTS:, Esam Gadi, a national of Saudi Arabia, was apprehended for possession of marijuana. An information was filed against him for violation of of the Dangerous Drugs Act. Three (3) days later, he filed an "Ex Parte Motion to Reduce Bail," which was denied. Esam Gadi then posted a cash bond which was approved by the trial court.

Gadi, later filed a motion for "reinvestigation," claiming that the seriousness of the offense charged warranted the grant of his motion. Although filed beyond the reglementary period, he contended that the same was not mandatory. The motion for "reinvestigation" was denied by the trial court. When arraigned Gadi pleaded not guilty. He then challenged the denial of his motion for "reinvestigation" in a petition for certiorari before the Court of Appeals. The Court of Appeals granted the petition and reversed the trial court Order denying reinvestigation. The solicitor general challenged the decision.Hence, this Petition for Review ISSUE: Whether it is a mandatory rule that a motion for preliminary investigation be filed within five (5) days from the time the accused had learned of the filing of the information. RULING: The period for filing a motion for preliminary investigation after an information has been filed against an accused who was arrested without a warrant has been characterized as mandatory by the Court. Clearly, Section 7 of Rule 112 of the present Rules gives the accused the right to ask for a preliminary investigation; but it does not give him the right to do so after the lapse of the five-day period. This is in accord with the intent of the Rules of Criminal Procedure to make preliminary investigation simple and speedy. The Supreme Court, elaborating on the rationale of the rules on preliminary investigation, held:
The new Rules were drafted in the light of the Court's experience with cases where preliminary investigations had dragged on for weeks and even months. The Court had intended to remove this clog upon the judicial machinery and to make a preliminary investigation as simple and speedy as is consistent with the substantial rights of the accused. The investigation is advisedly preliminary, to be followed by the trial proper. The investigating judge or prosecuting officer acts upon probable cause and reasonable belief, not upon proof beyond reasonable doubt. The occasion is not for the full and exhaustive display of the parties' evidence; it is for the presentation of such evidence only as may engender well-grounded belief that an offense has been committed and that the accused is probably guilty thereof. When all this is fulfilled, the accused will not be permitted to cast about for fancied reasons to delay the proceedings; the time to ask for more is at the trial.

The denial of Esam Gadi's motion for preliminary investigation is also warranted: by his posting of a cash bail bond without previously or simultaneously

demanding a preliminary investigation. In People vs. Hubilo, an accused who had posted bail was deemed to have foregone his right to preliminary investigation. In the present case, Esam Gadi asked for and was granted bail on 10 January 1994, or one month before he asked for a preliminary investigation on 9 February 1994. Once more Esam Gadi in fact waived his right to preliminary investigation. All in all, Esam Gadi's demand for preliminary investigation was an afterthought merely.
JOSE ANTONIO C. LEVISTE, Petitioner, - versus - HON. ELMO M. ALAMEDA, HON. RAUL M. GONZALEZ, HON. EMMANUEL Y. VELASCO, HEIRS OF THE LATE RAFAEL DE LAS ALAS, Respondents. G.R. No. 182677 ,August 3, 2010

CARPIO MORALES, J.: FACTS: Petitioner was, by Information, charged with homicide for the death of Rafael de las Alas before the Regional Trial Court (RTC) of Makati City, presided by Judge Elmo Alameda, to which a commitment order against petitioner who was placed under police custody while confined at the Makati Medical Center. The petitioner was released on bail. The private complainants-heirs of De las Alas filed motion for the deferment of the proceedings to allow the public prosecutor to re-examine the evidence on record or to conduct a reinvestigation to determine the proper offense. The RTC issued order deferring petitioners arraignment and allowing the prosecution to conduct a reinvestigation. Meantime, petitioner filed an Urgent Ex-Parte Manifestation and Motion before the trial court to defer acting on the public prosecutors recommendation on the proper offense until after the appellate court resolves his application for injunctive reliefs. The trial court issued admitted the Amended Information for murder and directed the issuance of a warrant of arrest. The petitioner assailed the decision before the appellate court, which was denied. Hence, this instant case. ISSUE: Whether there is a need for a new preliminary investigation in lieu with the amendment of the complaint. RULING:

A preliminary investigation is required before the filing of a complaint or information for an offense where the penalty prescribed by law is at least four years, two months and one day without regard to fine. As an exception, the rules provide that there is no need for a preliminary investigation in cases of a lawful arrest without a warrant involving such type of offense, so long as an inquest, where available, has been conducted. Inquest is defined as an informal and summary investigation conducted by a public prosecutor in criminal cases involving persons arrested and detained without the benefit of a warrant of arrest issued by the court for the purpose of determining whether said persons should remain under custody and correspondingly be charged in court. Considering that another or a new preliminary investigation is required, the fact that what was conducted in the present case was a reinvestigation does not invalidate the substantial amendment of the Information. There is no substantial distinction between a preliminary investigation and a reinvestigation since both are conducted in the same manner and for the same objective of determining whether there exists sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof and should be held for trial. What is essential is that petitioner was placed on guard to defend himself from the charge of murder after the claimed circumstances were made known to him as early as the first motion. Petitioner did not, however, make much of the opportunity to present countervailing evidence on the proposed amended charge. Despite notice of hearing, petitioner opted to merely observe the proceedings and declined to actively participate, even with extreme caution, in the reinvestigation. Mercado v. Court of Appeals states that the rules do not even require, as a condition sine qua non to the validity of a preliminary investigation, the presence of the respondent as long as efforts to reach him were made and an opportunity to controvert the complainants evidence was accorded him

[G.R. No. 132422. March 30, 2004]

FILADAMS PHARMA, INC., petitioner, vs. HONORABLE COURT OF APPEALS and ANTONIO FERIA, respondents. DECISION
CORONA, J.:

FACTS: Petitioner Filadams Pharma, Inc. (Filadams) was a corporation engaged in the business of selling medicines to wholesalers. Antonio Feria was its sales representative. In an audit conducted Feria was found accountable unsold but unreturned stocks and samples, unremitted collections and unliquidated cash advances.. In his defense, Feria maintained that he neither misappropriated nor converted the subject sums of money for his personal use or benefit. If ever, his obligation was purely civil in nature. The Assistant City Prosecutor of Quezon City dismissed the complaint-affidavit for lack of cause of action. Petitioner filed a motion for reconsideration but this was denied by 1st Assistant City Prosecutor Gerona. Petitioner appealed to the Secretary of Justice but the Department of Justice (DOJ), also dismissed the appea. On the ground of grave abuse of discretion, Filadams filed with the Court of Appeals a petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure. The Court of Appeals dismissed the petition for certiorari on the ground that the proper remedy was petition for review under Revised Circular No. 1-91, now embodied in Rule 43 of the 1997 Rules of Civil Procedure. Rule 43 applies to appeals from judgments or final orders of the Court of Tax Appeals and from awards, judgments, final orders or resolutions of or authorized by any quasi-judicial agency in the exercise of quasi-judicial functions to the Court of Appeals. ISSUE: Was the Office of the Prosecutor of Quezon City a quasi-judicial agency whose resolutions were appealable to the Court of Appeals under Rule 43? RULING:
A closer scrutiny will show that preliminary investigation is very different from other quasi-judicial proceedings. A quasi-judicial body has been defined as "an organ of government other than a court and other than a legislature which affects the rights of private parties through either adjudication or rule-making."

On the other hand, the prosecutor in a preliminary investigation does not determine the guilt or innocence of the accused. He does not exercise adjudication nor rule-making functions. Preliminary investigation is merely inquisitorial, and is often the only means of discovering the persons who may be reasonably charged with a crime and to enable the fiscal to prepare his complaint or information. It is not a trial of the case on the merits and has no purpose except that of determining whether a crime has been committed and whether there is probable cause to believe that the accused is guilty thereof. While the fiscal makes that determination, he cannot be said to be acting as a quasi-court, for it is the courts, ultimately, that pass judgment on the accused, not the fiscal. Hence, the Office of the Prosecutor is not a quasi-judicial body; necessarily, its decisions approving the filing of a criminal complaint are not appealable to the Court of Appeals under Rule 43. Since the ORSP (Office of the Regional State Prosecutor) has the power to resolve appeals with finality only where the penalty prescribed for the offense does not exceed prision correccional, regardless of the imposable fine, the only remedy of petitioner, in the absence of grave abuse of discretion, is to present her defense in the trial of the case.

Based on the 1993 Revised Rules on Appeals from Resolutions in Preliminary Investigations or Reinvestigations now the 2000 NPS Rule on Appeals the petitioner could appeal to the Secretary of Justice. In this case, the petitioner did appeal to the Secretary of Justice but his appeal was dismissed. His motion for reconsideration was also dismissed. Since there was no more appeal or other remedy available in the ordinary course of law, the petitioner correctly filed a petition for certiorari with the Court of Appeals on the ground of grave abuse of discretion.

THIRD DIVISION G.R. No. 147932 January 25, 2006 LAILA G. DE OCAMPO, Petitioner, -versus- THE HONORABLE SECRETARY OF JUSTICE, MAGDALENA B. DACARRA, and ERLINDA P. ORAYAN, Respondents. CARPIO, J.: FACTS: Magdalena B. Dacarra (Magdalena) stated her nine-year-old son Ronald complained of dizziness upon arriving home. Ronald then vomited, prompting Magdalena to ask what happened. Ronald replied that petitioner, who was Ronalds teacher, banged his head against that of his classmate Lorendo Orayan (Lorendo). Magdalena inspected Ronalds head and saw a woundless

contusion. Due to Ronalds continued vomiting, Magdalena brought him to a quack doctor (arbularyo) on 5 December 1999. The following morning, Magdalena brought Ronald to the East Avenue Medical Center where he underwent an x-ray. The attending physician informed Magdalena that Ronalds head had a fracture. Blood oozed out of Ronalds nose before he died on 9 December 1999. Lorendo also executed a sworn statement narrating how petitioner banged his head against Ronalds.

During the inquest proceedings on 14 December 1999, Assistant Quezon City Prosecutor Maria Lelibet Sampaga (inquest prosecutor) ruled as follows:
Evidence warrants the release of the respondent for further investigation of the charges against her. The case is not proper for inquest as the incident complained of happened on December 4, 1999. Further, we find the evidence insufficient to support the charge for homicide against the respondent. There is no concrete evidence to show proof that the alleged banging of the heads of the two minor victims could be the actual and proximate cause of the death of minor Ronald Dacarra y Baluton. Besides, the police report submitted by the respondent in this case states that said victim bears stitches or sutures on the head due to a vehicular accident. There is no certainty, therefore, that respondents alleged wrongdoing contributed or caused the death of said victim.[7]

Subsequently, the case was referred to Assistant Quezon City Prosecutor Lorna F. Catris-Chua Cheng (investigating prosecutor) for preliminary investigation. She scheduled the first hearing on 6 January 2000. Respondent Erlinda P. Orayan (Erlinda), Lorendos mother, attended the hearing of 6 January 2000 and alleged that petitioner offered her P100,000, which

she initially accepted, for her and her sons non-appearance at the preliminary investigation. Erlinda presented the money to the investigating prosecutor. On 7 January 2000, Jennilyn Quirong, who witnessed the head-banging incident, and Melanie Lugales, who claimed to be another victim of petitioners alleged cruel deeds, filed their sworn statements with the Office of the Quezon City Prosecutor.

On 18 January 2000, petitioner submitted her counter-affidavit. Petitioner invoked the disposition of the inquest prosecutor finding insufficient evidence to support the charges against her. Petitioner assailed the omission in Magdalenas sworn statement about Ronalds head injury due to a vehicular accident in November 1997. Petitioner pointed out the absence of damage or injury on Lorendo as borne out by his medical certificate. Petitioner contended that the head-banging incident was not the proximate cause of Ronalds death, but the failed medical attention or medical negligence. Petitioner also alleged that Jennilyn Quirong and Melanie Lugales have immature perception. Petitioner further asserted that the causes of death stated in Ronalds D eath Certificate are hearsay and inadmissible in the preliminary investigation. Ronalds Death Certificate shows the immediate cause of his death as Cardio Pulmonary Arrest, the underlying cause as Cerebral Edema, and other significant conditions contributing to death as Electrolyte imbalance and vomiting. The Autopsy Report, obtained by the investigating prosecutor from the PNP Crime Laboratory in Camp Crame, states the cause of death as Intracranial hemorrhage secondary to traumatic injury of the head.

The investigating prosecutor issued a Resolution finding probable cause against petitioner for the offenses charged. The dispositive portion of the Resolution reads:
WHEREFORE, in view of the foregoing, it is respectfully recommended that [petitioner] be charged with Homicide in relation to Art. VI, Sec. 10 of R.A. 7610 and Violation of Art. VI, Sec. 10(a) of R.A. 7610 with no bail recommended for the Homicide since par. 6 of Art. VI of Sec. 10 of R.A. 7610 provides that: For purposes of this Act, the penalty for the commission of acts punishable under Articles 248, 249, 262, par. 2 and 263, par. 1 Act No. 3815, as amended, the Revised Penal Code, for the crimes of murder, homicide, other intentional mutilation and serious physical injuries, respectively, shall be reclusion perpetua when the victim is under twelve (12) years of age. Bail recommended: No bail recommended Homicide, in relation to Art. VI, Sec. 10, R.A. 7610; and Twenty Thousand pesos (P20,000.00) Viol. of Sec. 10(a) of R.A. 7610[8]

Consequently, petitioner filed a petition for review with the DOJ. In her appeal to the DOJ, petitioner contended that the investigating prosecutor showed bias in favor of complainants Magdalena and Erlinda (complainants) for not conducting a clarificatory hearing and unilaterally procuring the autopsy report. Petitioner argued that the investigating prosecutor erred in concluding that her alleged act of banging Ronald and Lorendos heads was the cause of Ronalds injury and that such was an act of child abuse. Petitioner also alleged that it is the Office of the Ombudsman which has jurisdiction over the case, and not the Quezon City Prosecutors Office.

The Resolution of the DOJ Secretary

The DOJ Secretary denied the petition for review. The DOJ Secretary held that there was no bias in complainants favor when the investigating prosecutor did not conduct a clarificatory hearing and unilaterally procured the autopsy report as nothing precluded her from doing so. The DOJ Secretary upheld the investigating prosecutors finding that Ronalds injury was the direct and natural result of petitioners act of banging Ronald and Lorendos heads. The DOJ Secretary stated that petitioner never denied such act, making her responsible for all its consequences even if the immediate cause of Ronalds death was allegedly the failed medical attention or medical negligence. The DOJ Secretary held that assuming there was failure of medical attention or medical negligence, these inefficient intervening causes did not break the relation of the felony committed and the resulting injury. The DOJ Secretary rejected petitioners claim that she is innocent as held by the inquest prosecutor. The inquest prosecutor did not dismiss the case. She merely recommended petitioners release for further investigation since the case was not proper for inquest and the evidence was then insufficient. The DOJ Secretary further stated that the omission in Magdalenas sworn statement about Ronalds head injury due to a vehicular accident in November 1997 and the absence of any injury on Lorendo are inconsequential. Moreover, the DOJ Secretary ruled that whether the statements of the causes of death in the death certificate and autopsy report are hearsay, and whether Jennilyn Quirong and Melanie Lugales have immature perception, are evidentiary

matters which should be determined during trial. The DOJ Secretary also sustained the investigating prosecutors conclusion that the banging of Ronald and Lorendos heads is an act of child abuse. Petitioner filed a motion for reconsideration which the DOJ Secretary
[9]

denied in his Resolution dated 19 April 2001. Hence, this petition.

[10]

The Issues

Petitioner raises the following issues: 1. Whether petitioner was denied due process during the preliminary investigation; and 2. Whether there is probable cause against petitioner for homicide under Article 249 of the Revised Penal Code in relation to Section 10(a), Article VI of RA 7610 and for violation of Section 10(a), Article VI of RA 7610.

The Ruling of the Court

The petition lacks merit. Before resolving the substantive issues in this case, the Court will address the procedural issue raised by the Office of the Solicitor General (OSG).
[11]

The

OSG contends that instead of Rule 65, Rule 43 is applicable to the present case. Thus, the OSG argues that the petition should be dismissed outright for being filed with this Court, instead of with the Court of Appeals, under a wrong mode of appeal. On the other hand, assuming Rule 65 applies, the OSG points out that the petition for certiorari should be filed with the Court of Appeals. Based on Memorandum Circular No. 58,
[12]

the resolution of the DOJ

Secretary is appealable administratively to the Office of the President since the offenses charged in this case are punishable by reclusion perpetua.
[13]

From the

Office of the President, the aggrieved party may file an appeal with the Court of Appeals pursuant to Rule 43.
[14]

Even assuming that the DOJ Secretary committed grave abuse of discretion in rendering the assailed Resolutions amounting to lack or excess of jurisdiction, petitioner should have filed the instant petition for certiorari with the Court of Appeals. Hence, on the issue alone of the propriety of the remedy sought by petitioner, this petition for certiorari must fail. However, considering the gravity of the offenses charged and the need to expedite the disposition of this case, the Court will relax the rules and finally resolve this case in the interest of substantial justice.

Whether petitioner was denied due process during the preliminary investigation

Absence of a clarificatory hearing

The Court rejects petitioners contention that she was denied due process when the investigating prosecutor did not conduct a clarificatory hearing. A clarificatory hearing is not indispensable during preliminary investigation. Rather than being mandatory, a clarificatory hearing is optional on the part of the investigating officer as evidenced by the use of the term may in Section 3(e) of Rule 112. This provision states:
(e) If the investigating officer believes that there are matters to be clarified , he may set a hearing to propound clarificatory questions to the parties or their witnesses, during which the parties shall be afforded an opportunity to be present but without the right to examine or cross-examine. xxx[15] (emphasis supplied)

The use of the word may in a statute commonly denotes that it is directory in nature. The term may is generally permissive only and operates to confer discretion.
[16]

Under Section 3(e) of Rule 112, it is within the discretion of the

investigation officer whether to set the case for further hearings to clarify some matters. In this case, the investigating prosecutor no longer conducted hearings after petitioner submitted her counter-affidavit. This simply means that at that point the investigating prosecutor believed that there were no more matters for clarification. It is only in petitioners mind that some crucial points still exist and need clarification. In any event, petitioner can raise these important matters during the trial proper. Petitioner was not deprived of due process since both parties were accorded equal rights in arguing their case and presenting their respective evidence during the preliminary investigation. Due process is merely an opportunity to be heard.
[17]

Petitioner cannot successfully invoke denial of due process since she was given the opportunity of a hearing.
[18]

She even submitted her counter-affidavit to the

investigating prosecutor on 18 January 2000. Preliminary investigation is merely inquisitorial. It is not a trial of the case on the merits.
[19]

Its sole purpose is to determine whether a crime has been


[20]

committed and whether the respondent is probably guilty of the crime.

It is not Hence,

the occasion for the full and exhaustive display of the parties evidence.

[21]

if the investigating prosecutor is already satisfied that he can reasonably determine the existence of probable cause based on the parties evidence thus presented, he may terminate the proceedings and resolve the case.

Obtaining a copy of the autopsy report

Petitioner argues that she was denied the right to examine evidence submitted by complainants when the investigating prosecutor unilaterally obtained a copy of the autopsy report from the PNP Crime Laboratory. Petitioner fails to persuade us. Though the autopsy report is not part of the parties evidence, the Rules on preliminary investigation do not forbid the investigating prosecutor from obtaining it. Neither is there a law requiring the investigating prosecutor to notify the parties before securing a copy of the autopsy report. The autopsy report, which states the causes of Ronalds death, can either absolve or condemn the petitioner. Unfortunately for petitioner, the investigating prosecutor found that the autopsy report bolstered complainants allegations.

Moreover, there is nothing to support petitioners claim that the investigating prosecutor was biased in favor of complainants. There are other pieces of evidence aside from the autopsy report upon which the investigating prosecutor based her finding of probable cause. The autopsy report is not the sole piece of evidence against petitioner. The sworn statement of the other victim, Lorendo, and the eyewitness account of Jennilyn Quirong, substantiate the charges against petitioner. Petitioners failure to deny the occurrence of the head -banging incident also strengthened complainants allegations. Petitioner mistakenly cites Section 3(d) of Rule 112
[22]

in arguing that the

investigating prosecutor should not go beyond the evidence presented by complainants in resolving the case. This provision applies if the respondent cannot be subpoenaed or if subpoenaed fails to submit her counter-affidavit within the prescribed period. Such is not the case here where petitioner filed her counteraffidavit and both parties presented their respective evidence.

Whether there is probable cause for the offenses charged against petitioner

Existence of probable cause

Petitioner challenges the finding of probable cause against her for the offenses charged arguing that the head-banging incident was not the proximate cause of Ronalds death. Petitioner insists that efficient intervening events caused Ronalds death. We do not agree. There is probable cause for the offenses charged against petitioner. Probable cause is the existence of such facts and circumstances as

would excite the belief in a reasonable mind that a crime has been committed and the respondent is probably guilty of the crime.
[23]

In the present case, Ronald, a nine-year-old student, died five days after his teacher, petitioner in this case, allegedly banged his head against that of his classmate Lorendo. There is nothing in the records showing petitioners specific denial of the occurrence of such act. Petitioner simply stated that the headbanging incident happened but [she] did not perpetrate it.
[24]

In effect, petitioner

admits the occurrence of the head-banging incident but denies committing it. The alleged intervening events before Ronald died, namely: (a) the consultation with a quack doctor, and (b) the three-day confinement in the East Avenue Medical Center, are not sufficient to break the relation of the felony committed and the resulting injury. Were it not for the head-banging incident, Ronald might not have needed medical assistance in the first place. These circumstances which allegedly intervened causing Ronalds death are evidentiary matters which should be threshed out during the trial. The following are also matters better left for the trial court to appreciate: (a) the contents of the death certificate and autopsy report, (b) the medical records of Ronalds accident in November 1997, (c) the perception of witnesses Jennilyn Quirong and Melanie Lugales, and (d) the alleged lack of medical assistance or medical negligence which caused Ronalds death. To repeat, what is determined during preliminary investigation is only probable cause, not proof beyond reasonable doubt.
[25]

As implied by the words

themselves, probable cause is concerned with probability, not absolute or moral certainty.
[26]

Asserting her innocence, petitioner continues to invoke the disposition of the inquest prosecutor finding insufficient evidence for the charges against her. As correctly ruled by the DOJ Secretary, the inquest prosecutor did not dismiss the case but merely recommended it for further investigation since it was not proper for inquest and the evidence was then insufficient. Moreover, petitioners active participation in the preliminary investigation without questioning the propriety of such proceedings indicates petitioners agreement with the recommendation of the inquest prosecutor for the further investigation of the case.

Charges of Homicide and Child Abuse Petitioners single act of allegedly banging the heads of her students had two distinct victims, namely Ronald and Lorendo. Therefore, petitioner has to face prosecution for cruelty to each victim. For Ronalds death, petitioner is being charged with homicide under Article 249 of the Revised Penal Code in relation to
[27]

Section 10(a), Article VI of RA 7610 punishable by reclusion perpetua.

[28]

However, this does not mean that petitioner is being charged with the distinct offenses of homicide and child abuse for Ronalds death. On the other hand, for her cruelty to Lorendo, petitioner is being charged with violation of Section 10(a), Article VI of RA 7610 punishable by prision mayor in its minimum period. Contrary to petitioners contention, Section 10(a), Article VI of RA 7610 is clear. This provision reads:
(a) Any person who shall commit any other acts of child abuse, cruelty or exploitation or be responsible for other conditions prejudicial to the childs development including those covered by Article 59 of Presidential Decree No. 603, as amended, but not covered by the Revised Penal Code, as amended, shall suffer the penalty of prision mayor in its minimum period.

Ambiguity is a condition of admitting two or more meanings, of being understood in more than one way, or of referring to two or more things at the same time. A statute is ambiguous if it is susceptible to more than one interpretation.
[29]

In the

present case, petitioner fails to show convincingly the ambiguity in Section 10(a), Article VI of RA 7610. Section 3(b), Article VI of RA 7610 defines child abuse as the maltreatment, whether habitual or not, of the child which includes physical abuse and cruelty. Petitioners alleged banging of the heads of Ronald and Lorendo is clearly an act of cruelty. In a petition for certiorari like this case, the primordial issue is whether the DOJ Secretary acted with grave abuse of discretion amounting to lack or excess of jurisdiction. The Court rules that the DOJ Secretary did not commit grave abuse of discretion in finding that there is probable cause to charge petitioner of the crimes of homicide and child abuse. The Court further rules that the investigating prosecutor did not act with grave abuse of discretion in securing motu proprio the autopsy report and in not calling for a clarificatory hearing. This ruling does not diminish in any way the constitutional right of petitioner to be presumed innocent until the contrary is proven.

WHEREFORE, we DENY the instant petition. We AFFIRM the Resolutions of the Secretary of Justice dated 15 September 2000 and 19 April 2001 in I.C. No. 99-6254. No pronouncement as to costs. SO ORDERED.