Ombudsmans ruling on the automatic inclusion of Sia as respondent in the complaint and their indictment for the
Rule 112
BUSUEGO VS. OFFICE OF THE OMBUDSMAN MINDANAO
FACTS:
Private respondent Rosa S. Busuego (Rosa) filed a complaint for: (1) Concubinage under Article 334 of the
Revised Penal Code; (2) violation of Republic Act No. 9262 (Anti-Violence Against Women and Their Children); and
(3) Grave Threats under Article 282 of the Revised Penal Code, before the Office of the Ombudsman against her
husband, Alfredo. Alfredo is the Chief of Hospital, Davao Regional Hospital. They have 2 children. However, their
marriage turned sour. She saw photographs of, and love letters addressed to Alfredo from, other women. She
confronted her husband but he claimed ignorance of the existence of such letters.
An opportunity to work as nurse in N.Y. USA. Alfredo opposed. Nonetheless, Rosa completed the
requirements. However, before leaving, furious with Rosas pressing, Alfredo took his gun and pointed it at Rosas
temple. Alfredo was only staved off because Rosas mother arrived at the couples house.
Rosa went to the US and was eventually joined by her 2 children, Alfred and Robert. Robert eventually
returned to Davao City to study medicine. Sometime in 1997, Rosa learned that a certain Emy Sia (Sia) was living
at their conjugal home. When Rosa asked Alfredo, he said that Sia, nurse at the Regional Hospital, was just in a
sorry plight and was allegedly raped by Rosas brother-in-law so he allowed her to sleep at the maids quarters.
In October 2005, Rosa finally learned of Alfredos extra-marital relationships. Robert and the housekeepers
executed a joint affidavit to support Rosas allegations. Rosa and the other son Alfred flew to Davao without
informing Alfredo. She gathererd and consolidated information of her husbands sexual affairs. She also averred
that during the course of the marriage, Alfredo physically and verbally abused her and her family. Alfredo denied all
accusations. In their subsequent exchange of responsive pleadings, Rosa maintained Alfredos culpability, and
naturally, Alfredo claimed innocence.
In the course thereof, the procedural issue of Rosas failure to implead Sia and de Leon as respondents
cropped up. Alfredo insisted that Rosas complaint ought to be dismissed for failure to implead his alleged
concubines as respondents.
Specifically to dispose of that issue, the Ombudsman scheduled a clarificatory hearing where both Rosa
and Alfredo were represented by their respective counsels. The office of the Ombudsman explained that the
position of Alfredo would just prolong the conduct of the preliminary investigation since Rosa can just re-file her
complaint. The doctrine of res judicata does not apply in the preliminary investigation stage. Hence, the counsel for
Rosa was directed to submit to this Office the addresses of the alleged mistresses so that they could be served with
the Order directing them to file their counter-affidavits. Rosa submitted an Ex-Parte Manifestation on the last known
addresses of Julie de Leon and Emy Sia (alleged mistresses.)
Ombudsman issued a Joint Order4 impleading Sia and de Leon as party-respondents in the complaint for
Concubinage and directing them to submit their respective counter-affidavits within a period of time. Sia and de
Leon did not submit their respective counter-affidavits.
Alfredo opposed the Ombudsmans ruling to simply amend the complaint and implead the alleged
mistresses. He filed his Comment to the Provincial Prosecutor praying for the dismissal of the complaint for failure
to implead the two mistresses.
Ombudsman issued herein assailed Resolution, disposing of the procedural issues, which states that the
short cut procedure would delay the proceedings is misplaced, since Rosa could still amend her complaint and re-
file the case for the doctrine of res judicata will not apply. Alfredo filed a Motion for Reconsideration excepting to the
crime of Concubinage.
Nonetheless, the Ombudsman stood pat on its ruling, declared that the Partial Motion for Reconsideration
was filed out of time. Alfredo now comes to us on petition for certiorari alleging grave abuse of discretion in the
Ombudsmans finding of probable cause to indict him and Sia for Concubinage.
ISSUE:
Whether or not the Ombudsman has full discretionary authority in the determination of probable cause
during a preliminary investigation.
RULING:
Yes. Therefore the Court sustain the Ombudsmans decision.
HELD:
The Ombudsman has full discretionary authority in the determination of probable cause during a
preliminary investigation. This is the reason why judicial review of the resolution of the Ombudsman in the exercise
of its power and duty to investigate and prosecute felonies and/or offenses of public officers is limited to a
determination of whether there has been a grave abuse of discretion amounting to lack or excess of jurisdiction.
Courts are not empowered to substitute their judgment for that of the Ombudsman.
By grave abuse of discretion is meant such capricious and whimsical exercise of judgment tantamount to
lack of jurisdiction. The abuse of discretion must be so patent and gross as to amount to an evasion of a positive
duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the
power is exercised in an arbitrary and despotic manner by reason of passion or hostility. In this regard, petitioner
failed to demonstrate the Ombudsman's abuse, much less grave abuse, of discretion.
The Ombudsman merely followed the provisions of its Rules of Procedure. No information may be filed
and no complaint may be dismissed without the written authority or approval of the ombudsman in cases falling
within the jurisdiction of the Sandiganbyan, or of the proper Deputy Ombudsman in all other cases.
Notably, Rosas complaint contained not just the Concubinage charge, but other charges: violation of
Republic Act No. 9262 and Grave Threats. Upon the Ombudsmans perusal, the complaint was supported by
affidavits corroborating Rosas accusations. Thus, at that stage, the Ombudsman properly referred the complaint to
Alfredo for comment. Nonetheless, while the Ombudsman found no reason for outright dismissal, it deemed it fit to
hold a clarificatory hearing to discuss the applicability of Article 344 of the Revised Penal Code, the issue having
been insisted upon by Alfredo.
Surely the procedural sequence of referral of the complaint to respondent for comment and thereafter the
holding of a clarificatory hearing is provided for in paragraph b, Section 2 and paragraphs d and f, Section 4 of Rule
II, which the Court have at the outset underscored. The Ombudsman merely facilitated the amendment of the
complaint to cure the defect pointed out by Alfredo. The Ombudsmans primary jurisdiction, albeit concurrent with
the DOJ, to conduct preliminary investigation of crimes involving public officers, without regard to its commission in
relation to office, had long been settled in Sen. Honasan II v. The Panel of Investigating Prosecutors of DOJ.
The Constitution, Section 15 of the Ombudsman Act of 1989 and Section 4 of the Sandiganbayan Law, as
amended, do not give to the Ombudsman exclusive jurisdiction to investigate offenses committed by public officers
or employees. The authority of the Ombudsman to investigate offenses involving public officers or employees is
concurrent with other government investigating agencies such as provincial, city and state prosecutors. However,
the Ombudsman, in the exercise of its primary jurisdiction over cases cognizable by the Sandiganbayan, may take
over, at any stage, from any investigating agency of the government, the investigation of such cases.
 In other words, respondent DOJ Panel is not precluded from conducting any investigation of cases against
public officers involving violations of penal laws but if the cases fall under the exclusive jurisdiction of the
Sandiganbayan, the respondent Ombudsman may, in the exercise of its primary jurisdiction take over at any stage.
Thus, with the jurisprudential declarations that the Ombudsman and the DOJ have concurrent jurisdiction
to conduct preliminary investigation, the respective heads of said offices came up with OMB-DOJ Joint Circular No.
95-001 for the proper guidelines of their respective prosecutors in the conduct of their investigations.
WHEREFORE the petition is DISMISSED.
DE LIMA v. REYES
G.R. No. 209330; 11 January 2016
Leonen, J.
FACTS:
Dr. Gerardo Ortega (Dr. Ortega) or "Doc Gerry," was a veterinarian and anchor of several radio shows in Palawan.
He was shot dead around 10:30am inside the Baguio Wagwagan Ukay-ukay in San Pedro, Puerto Princesa City,
Palawan. After a brief chase with police officers, Marlon Recamata was arrested. On the same day, he made an
extrajudicial confession admitting that he shot Dr. Ortega. He also implicated Rodolfo "Bumar" Edrad (Edrad),
Dennis Aranas, and Armando "Salbakotah" R. Noel, Jr. Subsequently, Edrad executed a Sinumpaang Salaysay
before the Counter-Terrorism Division of the NBI where he alleged that it was former Palawan Governor Mario Joel
Reyes (former Governor Reyes) who ordered the killing of Dr. Ortega. And the following day, DOJ Sec. Leila De
Lima issued Department Order No. 091 creating a special panel of prosecutors (First Panel) to conduct preliminary
investigation.
Dr. Patria Gloria Inocencio-Ortega (Dr. Inocencio-Ortega), Dr. Ortega's wife, subsequently filed a Supplemental
Affidavit-Complaint implicating former Governor Reyes as the mastermind of her husband's murder. Former
Governor Reyes' brother, Coron Mayor Mario Reyes, Jr., former Marinduque Governor Jose Carreon, former
Provincial Administrator Atty. Romeo Seratubias, Marlon Recamata, Dennis Aranas, Valentin Lesias, Arturo D.
Regalado, Armando Noel, Rodolfo Edrad, and several John and Jane Does were also implicated.
Upon conclusion of the First Panel preliminary investigation, the Resolution was issued dismissing the Affidavit-
Complain. Inocencio-Ortega filed a Motion to Re-Open Preliminary Investigation, which, among others, sought the
admission of mobile phone communications between former Governor Reyes and Edrad. While the Motion to Re-
Open was still pending, Dr. Inocencio-Ortega filed a Motion for Partial Reconsideration Ad Cautelam of the
Resolution. Both Motions were denied by the First Panel in the Resolution.
De Lima issued DO No. 710 creating a new panel of investigators (Second Panel) to conduct a reinvestigation of
the case, "in the interest of service and due process" as well as to address the offer of additional evidence denied
by the Forst Panel in its Resolution. This revoked the previous DO. To the dismay of Governor Reyes, he argued
that the parties were already afforded due process and that the evidence to be addressed by the reinvestigation
was neither new nor material to the case. It did not prevent the Second Panel from issuing a Resolution, finding
probable cause and recommending the filing of informations for all of the accused including Reyes. In his
Supplemental Petition, Reyes averred that the RTC could not proceed with the prosecution of his case because the
Resolution was void. Contrary to RTC, CA ruled that DO No. 710 was null and void and reinstated the First Panels
Resolution.
Petitioners contend that De Lima acted within her authority when she issued DO No. 710. According to them, her
issuance was a purely executive function and not a quasi-judicial function that could be the subject of a petition for
certiorari or prohibition. In their submissions, they point out that under RA 10071 and the 2000 NPS Rule on Appeal,
the Secretary of Justice has the power to create a new panel of prosecutors to reinvestigate a case to prevent a
2H 2016-2017 Criminal Procedure (Atty. Cheska Senga)
miscarriage of justice. First Panel "appeared to have ignored the rules of preliminary investigation" when it refused
to receive additional evidence that would have been crucial for the determination of the existence of probable
cause. They assert that respondent was not deprived of due process when the reinvestigation was ordered since he
was not prevented from presenting controverting evidence to Dr. Inocencio-Ortega's additional evidence.
Petitioners, as well, contend that since the Information had been filed, the disposition of the case was already within
the discretion of the trial court.
On the other hand, Reyes argues that De Lima had no authority to order motu proprio the reinvestigation of the
case since Dr. Inocencio-Ortega was able to submit her alleged new evidence to the First Panel when she filed her
Motion for Partial Reconsideration. He argues that all parties had already been given the opportunity to present their
evidence before the First Panel so it was not necessary to conduct a reinvestigation. Further, opportunity to present
their evidence before the First Panel so it was not necessary to conduct a reinvestigation. While De Limas
discretion to create a new panel of prosecutors was not "unbridled," however, the 2000 NPS Rule on Appeal
requires that there be compelling circumstances for her to be able to designate another prosecutor to conduct the
reinvestigation. Also, the Second Panel's Resolution was void since the Panel was created by a department order
that was beyond De Limas authority to issue. He further argues that the trial court did not acquire jurisdiction over
the case since the Information filed by the Second Panel was void.
ISSUES:
(1) Is the issuance of DO No. 710 an executive function beyond the scope of a petition for certiorari or
prohibition?
(2) Is the Secretary of Justice authorized to create motu proprio another panel of prosecutors in order to
conduct a reinvestigation of the case?
(3) Is the Petition for Certiorari already been rendered moot by the filing of the information in court?
HELD:
(1) The determination by the Department of Justice of the existence of probable cause is not a quasi-judicial
proceeding. However, the actions of the Secretary of Justice in affirming or reversing the findings of
prosecutors may still be subject to judicial review if it is tainted with grave abuse of discretion. In a
preliminary investigation, the prosecutor does not determine the guilt or innocence of an accused. The
prosecutor only determines "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."
Considering that "full discretionary authority has been delegated to the executive branch in the
determination of probable cause during a preliminary investigation," the functions of the prosecutors and
the Secretary of Justice are not ministerial, thus, prosecutors may be subject of a petition for certiorari or
prohibition under Rule 65.
(2) Yes. Under existing laws, rules of procedure, and jurisprudence, the Secretary of Justice is authorized to
issue DO No. 710. Section 4 of RA 10071 also gives the Secretary of Justice the authority to directly act on
any "probable miscarriage of justice within the jurisdiction of the prosecution staff, regional prosecution
office, and the provincial prosecutor or the city prosecutor." Accordingly, the Secretary of Justice may step
in and order a reinvestigation even without a prior motion or petition from a party in order to prevent any
probable miscarriage of justice. It is clear that the Secretary of Justice issued DO No. 710 because she
had reason to believe that the First Panel's refusal to admit the additional evidence may cause a probable
miscarriage of justice to the parties. The Second Panel was created not to overturn the findings and
recommendations of the First Panel but to make sure that all the evidence, including the evidence that the
First Panel refused to admit, was investigated. Therefore, the Secretary of Justice did not act in an
"arbitrary and despotic manner,'by reason of passion or personal hostility.
(3) Yes. The filing of the information and the issuance by the trial court of the respondent's warrant of arrest
has already rendered this Petition moot. Once information is filed in court, the court acquires jurisdiction of
the case and any motion to dismiss the case or to determine the accused's guilt or innocence rests within
2
 the sound discretion of the court. trial court has already determined, independently of any finding or
recommendation by the First Panel or the Second Panel, that probable cause exists for the issuance of the
warrant of arrest against respondent. Probable cause has been judicially determined. Jurisdiction over the
case, therefore, has transferred to the trial court. A petition for certiorari questioning the validity of the
preliminary investigation in any other venue has been rendered moot by the issuance of the warrant of
arrest and the conduct of arraignment. CA should have dismissed the Petition for Certiorari filed before
them when the trial court issued its warrant of arrest. Since the trial court has already acquired jurisdiction
over the case and the existence of probable cause has been judicially determined, a petition for certiorari
questioning the conduct of the preliminary investigation ceases to be the "plain, speedy, and adequate
remedy" provided by law. Inasmuch as this Petition for Review is an appeal from a moot Petition for
Certiorari, it must also be rendered moot.
Cojuangco V. PCGG
Facts: President Corazon Aquino directed the Solicitor General to prosecute all persons involved in the
misuse of coconut levy funds. Solicitor General created a task force to conduct a thorough study of the
anomaly. Two criminal complaints were filed with PCGG. Thereafter, PCGG assigned prosecutor del
Rosario for PRELIMINARY INVESTIGATION. The respondents, Eduardo Cojuangco, et.al. alleged that
PCGG may not conduct a preliminary investigation of the complaints filed by the Solicitor General without
violating petitioners rights to due process and equal protection of the law.
Issue: (1) WON the PCGG has the power to conduct a preliminary investigation of the anti-graft and
corrupt cases filed by the OSG; (2) WON this jurisdiction to conduct preliminary investigation constitutes a
violation of petitioners right to due process and equal protection of the law.
Ruling:
1. Yes, PCGG has the power to conduct a preliminary investigation of the anti-graft and corrupt
practices cases filed by the OSG, pursuant to EO. No. 1 signed by Corazon Aquino, creating the
PCGG and constituting its membership to assist the President in the recovery of ill-gotten wealth
accumulated by Marcos, his relatives and cronies. Specifically, Section 2 (b) of the said executive
order provides that:
The Commission shall be charged with the task of assisting the President in regard to [among
others], (b) the investigation of such cases of graft and corruption as the President may assign to
the Commission from time to time. Section 3 (a) of the order further provides that The
Commission shall have the power and authority to conduct investigations as may be necessary
in order to accomplish and carry out the purposes of this order.
There is no doubt that the authority to investigate extended to the PCGG includes the
authority to conduct preliminary investigation.
2. Yes, this authority to conduct preliminary investigation constitutes constitutional rights violation.
Section 1, Rule 112 of the Rules of Criminal Procedure defines preliminary investigation as
an inquiry or proceeding for the purpose of determining whether there is sufficient ground to
engender a well-founded belief that a crime cognizable by the RTC has been committed and that
the respondent is probably guilty thereof, and should be held for trial. An indispensable requisites
of due process is that the person who presides and decides over a proceeding, including a
preliminary investigation, must possess cold neutrality of an impartial judge.
Insofar as the general power of investigation vested in the PCGG is concerned, it may be divided
into two stages. The first stage of investigation (criminal investigation), is the fact finding inquiring
which is usually conducted by the law enforcement agents whereby they gather evidence and
interview witnesses after which they assess the evidence and they find sufficient basis, file the
complaint for the purpose of preliminary investigation. The second stage (preliminary investigation
stage) ascertains whether or not there is sufficient evidence to bring a person to trial. It is in such
case that the court ruled that one cannot be a prosecutor and judge at the same time. Having
gathered the evidence and filed the complaint as a law enforcer, he cannot be expected to
2H 2016-2017 Criminal Procedure (Atty. Cheska Senga)
handle with impartiality the preliminary investigation of his own complaint, this time as a public
prosecutor.
Wherefore, the petition was granted.
LOUIS BAROK C. BIRAOGO vs. THE PHILIPPINE TRUTH COMMISSION OF 2010
FACTS:
Pres. Aquino signed E. O. No. 1 establishing Philippine Truth Commission of 2010
FACTS: PTC is a mere ad hoc body formed under the Office of the President with the primary task to investigate
reports of graft and corruption committed by third-level public officers and employees, their co-principals,
accomplices and accessories during the previous administration, and to submit its finding and recommendations to
the President, Congress and the Ombudsman. PTC has all the powers of an investigative body. But it is not a
quasi-judicial body as it cannot adjudicate, arbitrate, resolve, settle, or render awards in disputes between
contending parties. All it can do is gather, collect and assess evidence of graft and corruption and make
recommendations. It may have subpoena powers but it has no power to cite people in contempt, much less order
their arrest. Although it is a fact-finding body, it cannot determine from such facts if probable cause exists as to
warrant the filing of an information in our courts of law.
Petitioners asked the Court to declare it unconstitutional and to enjoin the PTC from performing its functions. They
argued that:
(a) E.O. No. 1 violates separation of powers as it arrogates the power of the Congress to create a public office and
appropriate funds for its operation.
(b) The provision of Book III, Chapter 10, Section 31 of the Administrative Code of 1987 cannot legitimize E.O. No.
1 because the delegated authority of the President to structurally reorganize the Office of the President to achieve
economy, simplicity and efficiency does not include the power to create an entirely new public office which was
hitherto inexistent like the Truth Commission.
(c) E.O. No. 1 illegally amended the Constitution and statutes when it vested the Truth Commission with quasi-
judicial powers duplicating, if not superseding, those of the Office of the Ombudsman created under the 1987
Constitution and the DOJ created under the Administrative Code of 1987.
(d) E.O. No. 1 violates the equal protection clause as it selectively targets for investigation and prosecution officials
and personnel of the previous administration as if corruption is their peculiar species even as it excludes those of
the other administrations, past and present, who may be indictable.
Respondents, through OSG, questioned the legal standing of petitioners and argued that:
1] E.O. No. 1 does not arrogate the powers of Congress because the Presidents executive power and power of
control necessarily include the inherent power to conduct investigations to ensure that laws are faithfully executed
3
and that, in any event, the Constitution, Revised Administrative Code of 1987, PD No. 141616 (as amended), R.A.
No. 9970 and settled jurisprudence, authorize the President to create or form such bodies.
2] E.O. No. 1 does not usurp the power of Congress to appropriate funds because there is no appropriation but a
mere allocation of funds already appropriated by Congress.
3] The Truth Commission does not duplicate or supersede the functions of the Ombudsman and the DOJ, because
it is a fact-finding body and not a quasi-judicial body and its functions do not duplicate, supplant or erode the latters
jurisdiction.
4] The Truth Commission does not violate the equal protection clause because it was validly created for laudable
purposes.
ISSUES:
1. WON the petitioners have legal standing to file the petitions and question E. O. No. 1;
2. WON E. O. No. 1 violates the principle of separation of powers by usurping the powers of Congress to create and
to appropriate funds for public offices, agencies and commissions;
3. WON E. O. No. 1 supplants the powers of the Ombudsman and the DOJ;
4. WON E. O. No. 1 violates the equal protection clause.
RULING:
The power of judicial review is subject to limitations, to wit: (1) there must be an actual case or controversy calling
for the exercise of judicial power; (2) the person challenging the act must have the standing to question the validity
of the subject act or issuance; otherwise stated, he must have a personal and substantial interest in the case such
that he has sustained, or will sustain, direct injury as a result of its enforcement; (3) the question of constitutionality
must be raised at the earliest opportunity; and (4) the issue of constitutionality must be the very lis mota of the case.
1. The petition primarily invokes usurpation of the power of the Congress as a body to which they belong as
members. To the extent the powers of Congress are impaired, so is the power of each member thereof, since his
office confers a right to participate in the exercise of the powers of that institution.
Legislators have a legal standing to see to it that the prerogative, powers and privileges vested by the Constitution
in their office remain inviolate. Thus, they are allowed to question the validity of any official action which, to their
mind, infringes on their prerogatives as legislators.
With regard to Biraogo, he has not shown that he sustained, or is in danger of sustaining, any personal and direct
injury attributable to the implementation of E. O. No. 1.
Locus standi is a right of appearance in a court of justice on a given question. In private suits, standing is
governed by the real-parties-in interest rule. It provides that every action must be prosecuted or defended in the
name of the real party in interest. Real-party-in interest is the party who stands to be benefited or injured by the
judgment in the suit or the party entitled to the avails of the suit.
2H 2016-2017 Criminal Procedure (Atty. Cheska Senga)
Difficulty of determining locus standi arises in public suits. Here, the plaintiff who asserts a public right in assailing
an allegedly illegal official action, does so as a representative of the general public. He has to show that he is
entitled to seek judicial protection. He has to make out a sufficient interest in the vindication of the public order and
the securing of relief as a citizen or taxpayer.
The person who impugns the validity of a statute must have a personal and substantial interest in the case such
that he has sustained, or will sustain direct injury as a result. The Court, however, finds reason in Biraogos
assertion that the petition covers matters of transcendental importance to justify the exercise of jurisdiction by the
Court. There are constitutional issues in the petition which deserve the attention of this Court in view of their
seriousness, novelty and weight as precedents
The Executive is given much leeway in ensuring that our laws are faithfully executed. The powers of the President
are not limited to those specific powers under the Constitution. One of the recognized powers of the President
granted pursuant to this constitutionally-mandated duty is the power to create ad hoc committees. This flows from
the obvious need to ascertain facts and determine if laws have been faithfully executed. The purpose of allowing ad
hoc investigating bodies to exist is to allow an inquiry into matters which the President is entitled to know so that he
can be properly advised and guided in the performance of his duties relative to the execution and enforcement of
the laws of the land.
2. There will be no appropriation but only an allotment or allocations of existing funds already appropriated. There is
no usurpation on the part of the Executive of the power of Congress to appropriate funds. There is no need to
specify the amount to be earmarked for the operation of the commission because, whatever funds the Congress
has provided for the Office of the President will be the very source of the funds for the commission. The amount that
would be allocated to the PTC shall be subject to existing auditing rules and regulations so there is no impropriety in
the funding.
3. PTC will not supplant the Ombudsman or the DOJ or erode their respective powers. If at all, the investigative
function of the commission will complement those of the two offices. The function of determining probable cause for
the filing of the appropriate complaints before the courts remains to be with the DOJ and the Ombudsman. PTCs
power to investigate is limited to obtaining facts so that it can advise and guide the President in the performance of
his duties relative to the execution and enforcement of the laws of the land.
4. Court finds difficulty in upholding the constitutionality of Executive Order No. 1 in view of its apparent
transgression of the equal protection clause enshrined in Section 1, Article III (Bill of Rights) of the 1987
Constitution.
Equal protection requires that all persons or things similarly situated should be treated alike, both as to rights
conferred and responsibilities imposed. It requires public bodies and institutions to treat similarly situated individuals
in a similar manner. The purpose of the equal protection clause is to secure every person within a states jurisdiction
against intentional and arbitrary discrimination, whether occasioned by the express terms of a statue or by its
improper execution through the states duly constituted authorities.
There must be equality among equals as determined according to a valid classification. Equal protection clause
permits classification. Such classification, however, to be valid must pass the test of reasonableness. The test has
4
four requisites: (1) The classification rests on substantial distinctions; (2) It is germane to the purpose of the law; (3)
It is not limited to existing conditions only; and (4) It applies equally to all members of the same class.
The classification will be regarded as invalid if all the members of the class are not similarly treated, both as to
rights conferred and obligations imposed.
Executive Order No. 1 should be struck down as violative of the equal protection clause. The clear mandate of truth
commission is to investigate and find out the truth concerning the reported cases of graft and corruption during the
previous administration only. The intent to single out the previous administration is plain, patent and manifest.
Arroyo administration is but just a member of a class, that is, a class of past administrations. It is not a class of its
own. Not to include past administrations similarly situated constitutes arbitrariness which the equal protection clause
cannot sanction. Such discriminating differentiation clearly reverberates to label the commission as a vehicle for
vindictiveness and selective retribution. Superficial differences do not make for a valid classification.
The PTC must not exclude the other past administrations. The PTC must, at least, have the authority to investigate
all past administrations.
The Constitution is the fundamental and paramount law of the nation to which all other laws must conform and in
accordance with which all private rights determined and all public authority administered. Laws that do not conform
to the Constitution should be stricken down for being unconstitutional.
Executive Order No. 1 is hereby declared UNCONSTITUTIONAL insofar as it is violative of the equal protection
clause of the Constitution.
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Honasan II v. Panel of Investigating Prosecutors of the DOJ
FACTS: On August 4, 2003, an affidavit-complaint was filed with the Department of Justice (DOJ) by respondent
CIDG-PNP/P Director Eduardo Matillano. For the crime of coup d'etat committed by military personnel who
occupied Oakwood on the 27th day of July 2003 and Senator Gregorio "Gringo"Honasan, IIThe said crime was
committed On June 4, 2003, at on or about 11 p.m., in a house in San Juan, a meeting was held and presided by
Senator Honasan
The affidavit-complaint is docketed and the Panel of Investigating Prosecutors of the Department of Justice (DOJ
Panel for brevity) sent a subpoena to petitioner for preliminary investigation.
Petitioner filed a Motion for Clarification questioning DOJ's jurisdiction over the case, asserting that since the
imputed acts were committed in relation to his public office, it is the Office of the Ombudsman, not the DOJ, that has
the jurisdiction to conduct the corresponding preliminary investigation; that should the charge be filed in court, it is
the Sandiganbayan, not the regular courts, that can legally take cognizance of the case considering that he belongs
2H 2016-2017 Criminal Procedure (Atty. Cheska Senga)
to the group of public officials with Salary Grade 31; and praying that the proceedings be suspended until final
resolution of his motion.
On September 10, 2003, the DOJ Panel issued an Order, to wit:
On August 27, 2003, Senator Gregorio B. Honasan II filed through counsel a "Motion to Clarify
Jurisdiction". On September 1, 2003, complainant filed a Comment/Opposition to the said motion.
The motion and comment/opposition are hereby duly noted and shall be passed upon in the resolution of
this case.
In the meantime, in view of the submission by complainant of additional affidavits/evidence and to afford
respondents ample opportunity to controvert the same, respondents, thru counsel are hereby directed to
file their respective counter-affidavits and controverting evidence on or before September 23, 2003.
Hence, Senator Gregorio B. Honasan II filed the herein petition for certiorari under Rule 65 of the Rules of Court
against the DOJ Panel and Ombudsman, attributing grave abuse of discretion on the part of the DOJ Panel in
issuing the aforequoted Order of September 10, 2003 on the ground that the DOJ has no jurisdiction to conduct the
preliminary investigation.
Petitioner claims that it is the Ombudsman, not the DOJ, that has the jurisdiction to conduct the preliminary
investigation under par. 1, Sec. 13, Art. XI of the 1987 Constitution, which confers upon the Office of the
Ombudsman the power to investigate on its own, or on complaint by any person, any act or omission of any public
official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient.
Petitioner rationalizes that the 1987 Administrative Code and the Ombudsman Act of 1989 cannot prevail over the
Constitution, pursuant to Art. 7 of the Civil Code.
ISSUE: Whether or not DOJ has jurisdiction to conduct the preliminary investigation.
HELD: YES. The Constitution, Section 15 of the Ombudsman Act of 1989 and Section 4 of the Sandiganbayan Law,
as amended, do not give to the Ombudsman exclusive jurisdiction to investigate offenses committed by public
officers or employees. The authority of the Ombudsman to investigate offenses involving public officers or
employees is concurrent with other government investigating agencies such as provincial, city and state
prosecutors. However, the Ombudsman, in the exercise of its primary jurisdiction over cases cognizable by the
Sandiganbayan, may take over, at any stage, from any investigating agency of the government, the investigation of
such cases.
DOJ Panel is not precluded from conducting any investigation of cases against public officers involving violations of
penal laws but if the cases fall under the exclusive jurisdiction of the Sandiganbayan, then respondent Ombudsman
may, in the exercise of its primary jurisdiction take over at any stage.
A close examination of the circular supports the view of the respondent Ombudsman that it is just an internal
agreement between the Ombudsman and the DOJ.
Sections 2 and 4, Rule 112 of the Revised Rules on Criminal Procedure on Preliminary Investigation confirm the
authority of the DOJ prosecutors to conduct preliminary investigation of criminal complaints filed with them for
offenses cognizable by the proper court within their respective territorial jurisdictions, including those offenses which
5
come within the original jurisdiction of the Sandiganbayan; but with the qualification that in offenses falling within the
original jurisdiction of the Sandiganbayan, the prosecutor shall, after their investigation, transmit the records
and their resolutions to the Ombudsman or his deputy for appropriate action. Also, the prosecutor cannot
dismiss the complaint without the prior written authority of the Ombudsman or his deputy, nor can the prosecutor file
an Information with the Sandiganbayan without being deputized by, and without prior written authority of the
Ombudsman or his deputy.
The DOJ Panel need not be authorized nor deputized by the Ombudsman to conduct the preliminary investigation
for complaints filed with it because the DOJ's authority to act as the principal law agency of the government and
investigate the commission of crimes under the Revised Penal Code is derived from the Revised Administrative
Code which had been held in the Natividad case as not being contrary to the Constitution. Thus, there is not even a
need to delegate the conduct of the preliminary investigation to an agency which has the jurisdiction to do so in the
first place. However, the Ombudsman may assert its primary jurisdiction at any stage of the investigation.
WHEREFORE, the petition for certiorari is DISMISSED for lack of merit.
MENDOZA vs. PEOPLE
FACTS: A complaint-affidavit was filed by Juno Cars, Inc. for qualified theft and estafa against Alfredo. Juno Cars
alleged that it hired Alfredo as Trade-In/Used Car Supervisor. Its Dealer/Operator, Rolando Garcia, conducted a
partial audit of the used cars and discovered that five (5) cars had been sold and released by Alfredo without
Rolandos or the finance managers permission. The partial audit showed that the buyers of the five cars made
payments, but Alfredo failed to remit the payments.
In his counter-affidavit, Alfredo raised, among others, Juno Cars supposed failure to prove ownership over the five
(5) cars or its right to possess them with the purported unremitted payments.
Provincial Prosecutor issued a Resolution finding probable cause and recommending the filing of an information
against Alfredo for qualified theft and estafa.
Alfredo moved for reconsideration, but the motion was denied. He then filed a petition for review with the
Department of Justice.
While Alfredos motion for reconsideration was still pending before the Office of the City Prosecutor of
Mandaluyong, two informations for qualified theft and estafa were filed before the Regional Trial Court. Alfredo filed
a motion for determination of probable cause before the trial court.
Several clarificatory hearings were scheduled but were not conducted. The parties agreed to submit all pending
incidents, including the clarificatory hearing, for resolution. The trial court issued an order dismissing the complaint,
stating that the evidence adduced does not support a finding of probable cause for the offenses of qualified theft
and estafa.
Juno Cars filed a motion for reconsideration, which the trial court denied.
Juno Cars then filed a petition for certiorari with the Court of Appeals, arguing that the trial court acted without or in
excess of its jurisdiction and with grave abuse of discretion when it dismissed the complaint. It argued that "the
determination of probable cause and the decision whether or not to file a criminal case in court, rightfully belongs to
the public prosecutor."
2H 2016-2017 Criminal Procedure (Atty. Cheska Senga)
Court of Appeals reversed the decision of the trial court, and reinstated the case. In its decision, the appellate court
ruled that the trial court acted without or in excess of its jurisdiction "in supplanting the public prosecutors findings
of probable cause with her own findings of insufficiency of evidence and lack of probable cause."
Aggrieved, Alfredo filed a petition for review under Rule 45 before this court. In essence, he argued that the trial
court was correct in finding that there was no probable cause as shown by the evidence on record.
ISSUE: whether the trial court may dismiss an information filed by the prosecutor on the basis of its own
independent finding of lack of probable cause.
HELD: Time and again, this court has been confronted with the issue of the difference between the determination of
probable cause by the prosecutor on one hand and the determination of probable cause by the judge on the other.
Juno Cars filed a complaint against Alfredo for qualified theft and estafa. Since qualified theft is punishable by
reclusion perpetua, a preliminary investigation must first be conducted "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," in accordance with Rule 112, Section 1 of the Rules on Criminal Procedure.
At this stage, the conduct of the preliminary investigation and the subsequent determination of the existence of
probable cause lie solely within the discretion of the public prosecutor. If upon evaluation of the evidence, the
prosecutor finds sufficient basis to find probable cause, he or she shall then cause the filing of the information with
the court.
Once the information has been filed, the judge shall then "personally evaluate the resolution of the prosecutor and
its supporting evidence" to determine whether there is probable cause to issue a warrant of arrest. At this stage, a
judicial determination of probable cause exists.
There are two kinds of determination of probable cause: executive and judicial. The executive determination of
probable cause is one made during preliminary investigation. It is a function that properly pertains to the public
prosecutor who is given a broad discretion to determine whether probable cause exists and to charge those whom
he believes to have committed the crime as defined by law and thus should be held for trial. Otherwise stated, such
official has the quasi-judicial authority to determine whether or not a criminal case must be filed in court. Whether or
not that function has been correctly discharged by the public prosecutor, i.e., whether or not he has made a correct
ascertainment of the existence of probable cause in a case, is a matter that the trial court itself does not and may
not be compelled to pass upon.
The judicial determination of probable cause, on the other hand, is one made by the judge to ascertain whether a
warrant of arrest should be issued against the accused. The judge must satisfy himself that based on the evidence
submitted, there is necessity for placing the accused under custody in order not to frustrate the ends of justice. If the
judge finds no probable cause, the judge cannot be forced to issue the arrest warrant.32
The difference is clear: The executive determination of probable cause concerns itself with whether there is enough
evidence to support an Information being filed. The judicial determination of probable cause, on the other hand,
determines whether a warrant of arrest should be issued.
The determination of probable cause for the warrant of arrest is made by the Judge. The preliminary investigation
properwhether or not there is reasonable ground to believe that the accused is guilty of the offense charged and,
therefore, whether or not he should be subjected to the expense, rigors and embarrassment of trialis the function
of the Prosecutor.
6
While it is within the trial courts discretion to make an independent assessment of the evidence on hand, it is only
for the purpose of determining whether a warrant of arrest should be issued. The judge does not act as an appellate
court of the prosecutor and has no capacity to review the prosecutors determination of probable cause; rather, the
judge makes a determination of probable cause independent of the prosecutors finding.
In this case, the Prosecutor found that the facts and evidence were "sufficient to warrant the indictment of
[petitioner] x x x." There was nothing in his resolution which showed that he issued it beyond the discretion granted
to him by law and jurisprudence.
While the information filed by Prosecutor was valid, trial court judge still had the discretion to make her own finding
of whether probable cause existed to order the arrest of the accused and proceed with trial.
Trial Court Judge made an independent assessment of the evidence on record and concluded that "the evidence
adduced does not support a finding of probable cause for the offenses of qualified theft and estafa." Specifically,
she found that Juno Cars "failed to prove by competent evidence"
Accordingly, with the present laws and jurisprudence on the matter, Trial Court Judge correctly dismissed the case
against Alfredo.
PEOPLE vs. VILLANUEVA and DURANA
[G.R. No. 114266. December 4, 1996]
FACTS:
DIOSDADO MENIANO was hacked dead for which ROGELIO VILLANUEVA and MAMERTO DURANA were
charged with murder. Villanueva however remained at large so that only Durana was tried.
One night, Diosdado Meniano and his wife Gloria were awakened by the loud voice of accused
Mamerto Durana from outside their house challenging Diosdado to a fight.
The challenge was not heeded initially by Diosdado until after Durana threatened to go up the house
if the former would not go down. Diosdado decided finally to go down but not without arming himself
with a short bolo.
Gloria peeped through the walls of their house and recognized Durana clearly as the intruder. [4] She
also saw the accused Rogelio Villanueva hiding near the plants.
As soon as Diosdado went out of his house he was immediately hacked by Villanueva. Villanueva
and Durana then ran away.
Elenita Meniano, sister-in-law and neighbor of Diosdado, also witnessed the hacking incident.
Thereby, testifying in court.
Duranas defense was alibi
The defense of appellant was not sustained by the trial court.
DURANAS CONTENTION ON APPEAL:
instant case was filed in court for murder only against the other accused, Rogelio Villanueva
That he was not made a respondent in the investigation;
The was not included in the charge for murder because, according to the police, he would be used as
a witness against the accused Villanueva.
ISSUE: WON the court a quo erred in failing to consider the fact that he was not a party respondent during the
preliminary investigation of the case
RULING:
The argument is without merit. It is settled that the absence of a preliminary investigation does not
impair the validity of the information or otherwise render the same defective; neither does it affect the
2H 2016-2017 Criminal Procedure (Atty. Cheska Senga)
jurisdiction of the court over the case, nor does it constitute a ground for quashing the information. [13] If no
preliminary investigation has been held, or if it is flawed, the trial court may, on motion of the accused, order an
investigation or reinvestigation and hold the proceedings on the criminal case in abeyance. [14] In this case, accused-
appellant failed to invoke such right to preliminary investigation before or at the time he entered his plea at
arraignment.[15] He can no longer invoke that right at this late stage of the proceedings.
ERDITO QUARTO v. THE HONORABLE OMBUDSMAN SIMEON MARCELO, CHIEF SPECIAL PROSECUTOR
DENNIS VILLA IGNACIO, LUISITO M. TABLAN, RAUL B. BORILLO, and LUIS A. GAYYA
SUMMARY
The petitioner seeks to nullify the immunity granted to the respondents, and to compel the Ombudsman to include
them as accused in the informations for estafa through falsification of public documents and for violation of Section
3(e), Republic Act (RA) No. 3019.5
FACTS
The petitioner is the Chief of the Central Equipment and Spare Parts Division (CESPD), 6 Bureau of Equipment
(BOE), Department of Public Works and Highways (DPWH), Port Area, Manila. As CESPD Chief, he is also the
Head of the Special Inspectorate Team (SIT) of the DPWH.7 The respondents are members of the SIT.
On January 9, 2002, DPWH Secretary Simeon Datumanong created a committee to investigate alleged anomalous
transactions involving the repairs and/or purchase of spare parts of DPWH service vehicles in 2001. 9 On January
17, 2002, the committee designated the DPWH Internal Audit Service (IAS) as its Technical Working Group to
conduct the actual investigation.
The DPWH-IAS discovered that from March to December 2001, several emergency repairs and/or purchase of
spare parts of hundreds of DPWH service vehicles, which were approved and paid by the government, did not
actually take place, resulting in government losses of approximately P143 million for this ten-month period alone.
Thus, Atty. Irene D. Ofilada of the DPWH-IAS filed before the Office of the Ombudsman13 a Complaint-Affidavit and
a Supplemental Complaint-Affidavit15 charging several high-ranking DPWH officials and employees including the
petitioner, the respondents, and other private individuals who purportedly benefited from the anomalous
transactions with Plunder, Money Laundering, Malversation, and violations of RA No. 3019 and the Administrative
Code.
After conducting preliminary investigation, the Ombudsman filed with the Sandiganbayan 21 several informations
charging a number of DPWH officials and employees with plunder, estafa through falsification of official/commercial
documents and violation of Section 3(e), RA No. 3019. On the other hand, the Ombudsman granted the
respondents request for immunity in exchange for their testimonies and cooperation in the prosecution of the cases
filed.
The petitioner initially filed a certiorari petition with the Sandiganbayan, questioning the Ombudsmans grant of
immunity in the respondents favor. The Sandiganbayan, however, dismissed the petition for lack of jurisdiction and
advised the petitioner to instead question the Ombudsmans actions before this Court. Hence, this present petition.
CONTENTIONS:
Petitioner
The petitioner argues that the Ombudsman should have included the respondents in the informations since it was
their inspection reports that actually paved the way for the commission of the alleged irregularities. The petitioner
asserts that the respondents criminal complicity clearly appears since "no repair could have started" and "no
payment for repairs, ghost or not," could have been made without the respondents pre-repair and post-repair
inspection reports. By excluding the respondents in the informations, the Ombudsman is engaged in "selective
prosecution" which is a clear case of grave abuse of discretion.
7

Respondent
The Ombudsman counters that RA No. 6770 (the Ombudsman Act of 1989) expressly grants him the power to grant
immunity from prosecution to witnesses. Given this power, the Ombudsman asserts that Section 17, Rule 119 of the
Rules of Court, which presupposes that the witness is originally included in the information, is inapplicable to the
present case since the decision on whom to prosecute is an executive, not a judicial, prerogative.
The Ombudsman invokes this Courts policy of non-interference in the Ombudsmans exercise of his discretion in
matters involving his investigatory and prosecutorial powers. The petitioners claim that the respondents are the
"most guilty" is a matter of defense which the petitioner may raise not in this proceeding, but in the trial proper.
ISSUE:
WON respondents should be included as accused in the informations
HELD:
We dismiss the petition.
PROCEDURAL REASON:
[The petitioner did not avail of the remedies available to him before filing the petition. ]
SUBSTANTIVE REASON:
Within the context of the Courts policy of non-interference with the Ombudsmans exercise of his investigatory and
prosecutory powers, the petitioner failed to establish that the grant of immunity to the respondents was attended by
grave abuse of discretion.
The respondents exclusion in the informations is grounded on the Ombudsmans grant of immunity
Mandamus is the proper remedy to compel the performance of a ministerial duty imposed by law upon the
respondent.38 In matters involving the exercise of judgment and discretion, mandamus may only be resorted to, to
compel the respondent to take action; it cannot be used to direct the manner or the particular way discretion is to be
exercised.39
In the exercise of his investigatory and prosecutorial powers, the Ombudsman is generally no different
from an ordinary prosecutor in determining who must be charged. 40 He also enjoys the same latitude of
discretion in determining what constitutes sufficient evidence to support a finding of probable cause (that
must be established for the filing of an information in court)41 and the degree of participation of those
involved or the lack thereof. His findings and conclusions on these matters are not ordinarily subject to
review by the courts except when he gravely abuses his discretion, 42 i.e., when his action amounts to an
evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, or when he acts outside the
contemplation of law.43
If, on the basis of the same evidence, the Ombudsman arbitrarily excludes from an indictment some individuals
while impleading all others, the remedy of mandamus lies 44 since he is duty-bound, as a rule, to include in the
information all persons who appear responsible for the offense involved.45
Citing the cases of Guiao v. Figueroa46 and Castro, Jr., et al. v. Castaeda and Liceralde,47 the petitioner argues for
the inclusion of the respondents in the criminal informations, pointing out that the respondents accomplished the
2H 2016-2017 Criminal Procedure (Atty. Cheska Senga)
inspection reports that allegedly set in motion the documentary process in the repair of the DPWH vehicles; these
reports led to the payment by the government and the consequent losses.
In Guiao and Castro, we ruled that mandamus lies to compel a prosecutor who refuses (i) to include in the
information certain persons, whose participation in the commission of a crime clearly appears, and (ii) to follow the
proper procedure for the discharge of these persons in order that they may be utilized as prosecution witnesses.
These cited cases, however, did not take place in the same setting as the present case as they were actions by the
public prosecutor, not by the Ombudsman. In the present case, the Ombudsman granted the respondents immunity
from prosecution pursuant to RA No. 6770 which specifically empowers the Ombudsman to grant immunity "in any
hearing, inquiry or proceeding being conducted by the Ombudsman or under its authority, in the performance or in
the furtherance of its constitutional functions and statutory objectives." The pertinent provision Section 17 of this
law provides:
Sec. 17. Immunities. x x x.
Under such terms and conditions as it may determine, taking into account the pertinent provisions of
the Rules of Court, the Ombudsman may grant immunity from criminal prosecution to any person whose
testimony or whose possession and production of documents or other evidence may be necessary to
determine the truth in any hearing, inquiry or proceeding being conducted by the Ombudsman or under its
authority, in the performance or in the furtherance of its constitutional functions and statutory objectives.
The immunity granted under this and the immediately preceding paragraph shall not exempt the witness
from criminal prosecution for perjury or false testimony nor shall he be exempt from demotion or removal
from office. [emphasis ours]
To briefly outline the rationale for this provision, among the most important powers of the State is the power to
compel testimony from its residents; this power enables the government to secure vital information necessary to
carry out its myriad functions.48 This power though is not absolute. The constitutionally-enshrined right against
compulsory self-incrimination is a leading exception. The states power to compel testimony and the production of a
persons private books and papers run against a solid constitutional wall when the person under compulsion is
himself sought to be penalized. In balancing between state interests and individual rights in this situation, the
principles of free government favor the individual to whom the state must yield. 49
A state response to the constitutional exception to its vast powers, especially in the field of ordinary criminal
prosecution and in law enforcement and administration, is the use of an immunity statute.50 Immunity statutes seek
a rational accommodation between the imperatives of an individuals constitutional right against self-
incrimination51(considered the fount from which all statutes granting immunity emanate 52) and the legitimate
governmental interest in securing testimony.53 By voluntarily offering to give information on the commission of a
crime and to testify against the culprits, a person opens himself to investigation and prosecution if he himself had
participated in the criminal act. To secure his testimony without exposing him to the risk of prosecution, the law
recognizes that the witness can be given immunity from prosecution.54 In this manner, the state interest is satisfied
while respecting the individuals constitutional right against self-incrimination.
The policy of non-interference with the Ombudsmans investigatory and prosecutory powers cautions a stay of
judicial hand
The Constitution and RA No. 6770 have endowed the Office of the Ombudsman with a wide latitude of investigatory
and prosecutory powers, freed, to the extent possible within our governmental system and structure, from
legislative, executive, or judicial intervention, and insulated from outside pressure and improper
influence.86Consistent with this purpose and subject to the command of paragraph 2, Section 1, Article VIII of the
1987 Constitution,87 the Court reiterates its policy of non-interference with the Ombudsmans exercise of his
investigatory and prosecutory powers (among them, the power to grant immunity to witnesses 88), and respects the
initiative and independence inherent in the Ombudsman who, "beholden to no one, acts as the champion of the
8
people and the preserver of the integrity of the public service." 89 Ocampo IV v. Ombudsman90 best explains the
reason behind this policy:
The rule is based not only upon respect for the investigatory and prosecutory powers granted by the Constitution to
the Office of the Ombudsman but upon practicality as well. Otherwise, the functions of the courts will be grievously
hampered by innumerable petitions assailing the dismissal of investigatory proceedings conducted by the Office of
the Ombudsman with regard to complaints filed before it, in much the same way that the courts would be extremely
swamped if they could be compelled to review the exercise of discretion on the part of the fiscals or prosecuting
attorneys each time they decide to file an information in court or dismiss a complaint by a private complainant.
Following this policy, we deem it neither appropriate nor advisable to interfere with the Ombudsmans grant of
immunity to the respondents, particularly in this case, where the petitioner has not clearly and convincingly shown
the grave abuse of discretion that would call for our intervention.
WHEREFORE, the petition is hereby DISMISSED. Costs against the petitioner.
SO ORDERED.
ISSUE: (1) WON Joint Committee as is authorized to conduct preliminary investigation?
(2)WON the preliminary investigation conducted was valid under Rule 112
RULING: (1)YES (2) YES
RATIO:
ARROYO v DOJ
(1) While recognizing the Comelecs exclusive power to investigate and prosecute cases under Batas
G.R. No. 199082-199085. September
Preliminary Investigation-Authorized officers & Counter-affidavit
SUM:
Under the present law, the Comelec and other prosecuting arms of the government, such as the DOJ, now
exercise concurrent jurisdiction in the investigation and prosecution of election offenses
(2) The procedure in conducting the preliminary investigation is governed by Rule 112 of the Revised Rules
The procedure in conducting the preliminary investigation is governed by Rule 112 of the Revised Rules on
Criminal Procedure and Rule 34 of the Comelec Rules of Procedure. Under both Rules, the respondent shall
submit his counter-affidavit and that of his witnesses and other supporting documents relied upon for his
defense, within ten (10) days from receipt of the subpoena, with the complaint and supporting affidavits
and documents. Also in both Rules, respondent is given the right to examine evidence, but such right of
examination is limited only to the documents or evidence submitted by complainants which she may not
have been furnished and to copy them at her expense.
FACTS:
This is a consolidated case of three regarding GMA, Abalos, Mike Arroyos involvement of alleged electoral
offenses of cheating in 2004 and 2007.
The Comelec and the DOJ issued Joint Order creating and constituting a Joint Committee and Fact-
Finding Team which was mandated to conduct the necessary preliminary investigation on the basis of the
evidence gathered and the charges recommended by the Fact-Finding Team
The Fact-Finding Team concluded that manipulation of the results in the May 14, 2007 senatorial elections
in the provinces of North and South Cotabato, and Maguindanao was indeed perpetrated. The Fact-
2H 2016-2017 Criminal Procedure (Atty. Cheska Senga)
Finding Team recommended, among others, that petitioner Benjamin S. Abalos, Sr. (Abalos) be subjected
to preliminary investigation for electoral sabotage.
October 17, 2011, Senator Pimentel filed a Complaint Affidavit for Electoral Sabotage against petitioners
and twelve others, and several John Does and Jane Does. The case was docketed as DOJ-Comelec Case
No. 002-2011.
October 24, 2011, the Joint Committee issued two subpoenas against petitioners in DOJ-Comelec
Case Nos. 001-2011 and 002-2011.On November 3, 2011, petitioners, through counsel, appeared
before the Joint Committee and respondents therein were ordered to submit their Counter-
Affidavits by November 14, 2011.
November 14, 2011, Mike Arroyo filed a Motion to Defer Proceedings before the Joint Committee, in view
of the pendency of his petition before the Court. On the same day, GMA filed before the Joint Committee
an Omnibus Motion Ad Cautelam to require Senator Pimentel to furnish her with documents referred
to in his complaint-affidavit and for the production of election documents as basis for the charge of
electoral sabotage. GMA prayed that she be allowed to file her counter-affidavit within ten (10) days
from receipt of the requested documents. Which was DENIED
GMA Argues: she likewise faults the Court in not upholding her right to ask for additional time within which
to submit her counter-affidavit and countervailing evidence. She maintains that it is the Comelec and not
the Joint Committee that has the primary, if not exclusive, authority to conduct preliminary investigation of
election cases
Pambansa Bilang 881 or the Omnibus Election Code, the Court pointed out that the framers of the 1987
Constitution did not have such intention. This exclusivity is thus a legislative enactment that can very well
be amended by Section 43 of RA 9369. Therefore, under the present law, the Comelec and other
prosecuting arms of the government, such as the DOJ, now exercise concurrent jurisdiction in the
investigation and prosecution of election offenses. As HELD in BANT v COMELEC
on Criminal Procedure and Rule 34 of the Comelec Rules of Procedure. Under both Rules, the
respondent shall submit his counter-affidavit and that of his witnesses and other supporting
documents relied upon for his defense, within ten (10) days from receipt of the subpoena, with the
complaint and supporting affidavits and documents. Also in both Rules, respondent is given the
right to examine evidence, but such right of examination is limited only to the documents or
evidence submitted by complainants which she may not have been furnished and to copy them at
her expense.
a. The Rules use the term "shall" in requiring the respondent to submit counter-affidavit and other
countervailing evidence within ten (10) days from receipt of the subpoena. It is settled that the use
of the word "shall" which is a word of command, underscores the mandatory character of the rule.
As in any other rule, though, liberality in the application may be allowed provided that the party is
able to present a compelling justification for the non-observance of the mandatory rules. In the
2008 Revised Manual for Prosecutors, investigating prosecutors allow or grant motions or requests
for extension of time to submit counter-affidavits when the interest of justice demands that
respondent be given reasonable time or sufficient opportunity to engage the services of counsel;
examine voluminous records submitted in support of the complaint or undertake research on novel,
complicated or technical questions or issues of law and facts of the case.
b. In this case, It appeared, that said documents were not submitted to the Joint Committee and
the only supporting documents available were those attached to the Initial Report of the Fact-
9
 Finding Team. Admittedly, GMA was furnished those documents. Thus, at the time she asked for
the extension of time within which to file her counter-affidavit, she very well knew that the
documents she was asking were not in the record of the case. Obviously, she was not
furnished those documents because they were not submitted to the Joint Committee. Logically,
she has no right to examine said documents
Aguinaldo vs Ventus
On December 2, 2002, private respondents Reynaldo P. Ventus and Jojo B. Joson filed a Complaint-Affidavit 3 for
estafa against petitioners Aguinaldo and Perez before the Office of the City Prosecutor (OCP) of Manila. Claiming to
be business partners in financing casino players, private respondents alleged that sometime in March and April
2002, petitioners connived in convincing them to part with their Two Hundred Sixty Thousand (P260,000.00) Pesos
in consideration of a pledge of two motor vehicles which the latter had misrepresented to be owned by Aguinaldo,
but turned out to be owned by one Levita De Castro, manager/operator of LEDC Rent-A-Car.
Perez filed his Counter-Affidavit, denying the accusation against him alleging that his paticipation is limited to having
initially introduced them to each other. Respondents asserted that it was Perez who showed them photocopies of
the registration paper of the vehicles in the name of Aguinaldo. Perez denied such, stating that there was no need
for the showing of the photocopies in the first place as the respondents were informed by Aguinaldo that she merely
leased the vehicles.
February 25, 2003, ACP Renato F. Gonzaga issued a Resolution recommending both petitioners to be
indicted in court for estafa
An Information charging petitioners with the crime of estafa was filed with the RTC Manila. Perez was
arrested, so he filed an Urgent Motion for Reduction of Bail to be Posted in Cash, which the public respondent
granted in an Order of even date. Granted.
Petitioners filed through counsel a Very Urgent Motion to Recall or Quash Warrants of Arrest, alleging that the
Resolution dated February 25, 2003 has not yet attained finality, and that they intended to file a motion for
reconsideration.
August 4, 2003, petitioners jointly filed with the OCP of Manila their "Motion for Reconsideration and Motion for
the Withdrawal of the Information Prematurely Filed with the Regional Trial Court, Branch 8, City of
Manila." Citing the Counter-Affidavit and Rejoinder-Affidavit of Perez, Aguinaldo asserted, among others, that
no deceit or false pretenses was committed because private respondents were fully aware that she does not
own the pledged motor vehicles.
Motion for withdrawal of information was granted. Arrest warrant was recalled only insofar as Aguinaldo was
concerned, pending resolution of her motion for reconsideration with the OCP.
Motions for reconsideration and for withdrawal of the information have already been denied for lack of merit.
Aggrieved, petitioners filed with the DOJ a petition for review.
Petitioners filed an Urgent Motion to Cancel Arraignment and Suspend Further Proceedings, until their petition
for review before the DOJ is resolved with finality. Granted.
Petitioners filed a Motion for Reconsideration with Motion to Quash Warrant of Arrest. Denied.
ISSUE: WON the petitioners were denied complete preliminary investigation
HELD: NO. Having submitted his Counter-Affidavit and Rejoinder-Affidavit to the OCP of Manila before the filing of
Information for estafa, Perez cannot be heard to decry that his right to preliminary investigation was not completed.
For her part, while Aguinaldo was not personally informed of any notice of preliminary investigation prior to the filing
of the Information, she was nonetheless given opportunity to be heard during such investigation. In petitioners'
motion for reconsideration of the February 25, 2003 Resolution of ACP Gonzaga, Aguinaldo relied mostly on the
Counter-Affidavit and Rejoinder-Affidavit of Perez to assail the recommendation of the prosecutor to indict her for
2H 2016-2017 Criminal Procedure (Atty. Cheska Senga)
estafa. Since the filing of such motion for reconsideration was held to be consistent with the principle of due process
and allowed under Section 56 of the Manual for Prosecutors, she cannot complain denial of her right to preliminary
investigation.
Both petitioners cannot, therefore, claim denial of their right to a complete preliminary investigation as part of their
right to due process. After all, "due process simply demands an opportunity to be heard. Due process is satisfied
when the parties are afforded a fair and reasonable opportunity to explain their respective sides of the controversy.
Where an opportunity to be heard either through oral arguments or through pleadings is accorded, there is no denial
of procedural due process."
SIDE NOTE:
With the Information for estafa against petitioners having been filed on July 16, 2003, the public respondent cannot
be faulted with grave abuse of discretion in denying their motion to quash warrant of arrest, and setting their
arraignment, pending the final resolution of their petition for review by the DOJ. The Court believes that the period
of almost one year and seven months was more than ample time to give petitioners the opportunity to obtain a
resolution of their petition. In fact, the public respondent had been very liberal with petitioners in applying Section 11
(c), Rule 116 of the Rules of Court which limits the suspension of arraignment to a 60-day period from the filing of
such petition. With more than eleven years having elapsed it is now high time for the continuation of the trial on the
merits in the criminal case below, as the 60-day period counted from the filing of the petition for review with the DOJ
had long lapsed.
Petition is DENIED. Considering that the proceedings in this criminal case had been held in abeyance long enough,
let the records of this case be remanded to the trial court which is hereby DIRECTED to try the case on the merits.
GO vs. COURT OF APPEALS
G.R. No. 101837 February 11, 1992
FELICIANO, J.:
FACTS: Eldon Maguan was driving his car along a one-way street when he started travelling in the opposite or
"wrong" direction. Petitioner's and Maguan's cars nearly bumped each other. Petitioner alighted from his car,
walked over and shot Maguan inside his car. Petitioner then boarded his car and left the scene. A security guard at
a nearby restaurant was able to take down petitioner's car plate number.
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 lawyers. The police forthwith detained him. That same day, the police
promptly filed a complaint for frustrated homicide against petitioner with the Office of the Provincial Prosecutor of
Rizal. First Assistant Provincial Prosecutor Dennis Villa Ignacio ("Prosecutor") informed petitioner, in the presence
of his lawyers, that he could avail himself of his right to preliminary investigation but that he must first sign a waiver
of the provisions of Article 125 of the Revised Penal Code. Petitioner refused to execute any such waiver.
While the complaint was still with the Prosecutor, and before an information could be filed in court, the victim, Eldon
Maguan, died of his gunshot wound(s).
Accordingly the Prosecutor, instead of filing an information for frustrated homicide, filed an information for murder
before the Regional Trial Court. No bail was recommended. At the bottom of the information, the Prosecutor
certified that no preliminary investigation had been conducted because the accused did not execute and sign a
waiver of the provisions of Article 125 of the Revised Penal Code.
10
Counsel for petitioner filed with the Prosecutor an omnibus motion for immediate release and proper preliminary
investigation, alleging that the warrantless arrest of petitioner was unlawful and that no preliminary investigation had
been conducted before the information was filed.
the trial court issued an Order granting leave to conduct preliminary investigation and cancelling the arraignment
until after the prosecution shall have concluded its preliminary investigation.
however, respondent Judge motu proprio issued an Order, embodying the following: (1) an Order which granted
bail was recalled; petitioner was given 48 hours from receipt of the Order to surrender himself; (2) the Order which
granted leave to the prosecutor to conduct preliminary investigation was recalled and cancelled;
Petitioner filed a petition for certiorari, prohibition and mandamus before the Supreme Court assailing Order of
respondent Judge, 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.
The Court of Appeals rendered a consolidated decision dismissing the two (2) petitions, on the following grounds:
a. Petitioner's warrantless arrest was valid because the offense for which he was arrested and
charged had been "freshly committed." His identity had been established through investigation. At
the time he showed up at the police station, there had been an existing manhunt for him. During
the confrontation at the San Juan Police Station, one witness positively identified petitioner as the
culprit.
b. Petitioner's act of posting bail constituted waiver of any irregularity attending his arrest. He
waived his right to preliminary investigation by not invoking it properly and seasonably under the
Rules.
CONTENTION OF RESPONDENT: 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. 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.
CONTENTION OF PETITONER. 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. 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.
ISSUES: (1) Whether or not a lawful warrantless arrest had been effected by the San Juan Police in respect of
petitioner Go (None and Rule 112 is not applicable); and (2) whether petitioner had effectively waived his right to
preliminary investigation (No)
2H 2016-2017 Criminal Procedure (Atty. Cheska Senga)
We do not believe that the warrantless "arrest" or detention of petitioner in the instant case falls within the terms of
Section 5 of Rule 113 of the 1985 Rules on Criminal Procedure which provides as follows:
Sec. 5 Arrest without warrant; when lawful. A peace officer or a private person may, without
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;
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
RULING (1): It is thus clear to the Court that there was no lawful warrantless arrest of petitioner within the meaning
of Section 5 of Rule 113. It is clear too that Section 7 of Rule 112, which provides:
Sec. 7 When accused lawfully arrested without warrant. When a person is lawfully arrested
without a warrant for an offense cognizable by the Regional Trial Court the complaint or
information may be filed by the offended party, peace officer or fiscal without a preliminary
investigation having been first conducted, on the basis of the affidavit of the offended party or
arresting office or person
However, before the filing of such complaint or information, the person arrested may ask for a
preliminary investigation by a proper officer in accordance with this Rule, but he must sign a
waiver of the provisions of Article 125 of the Revised Penal Code, as amended, with the
assistance of a lawyer and in case of non-availability of a lawyer, a responsible person of his
choice. Notwithstanding such waiver, he may apply for bail as provided in the corresponding rule
and the investigation must be terminated within fifteen (15) days from its inception.
If the case has been filed in court without a preliminary investigation having been first conducted,
the accused may within five (5) days from the time he learns of the filing of the information, ask
for a preliminary investigation with the same right to adduce evidence in his favor in the manner
prescribed in this Rule.
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
11
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.
RULING (2): 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.
Nonetheless, since petitioner in his omnibus motion was asking for preliminary investigation and not for 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. 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.
Again, in the circumstances of this case, we do not believe that by posting bail petitioner had waived his right to
preliminary investigation.
Meantime, petitioner is hereby ORDERED released forthwith upon posting of a cash bail bond of One Hundred
Thousand Pesos (P100,000.00).
OSCAR G. RARO, petitioner, vs. THE HONORABLE SANDIGANBAYAN, (Second Division), THE
HONORABLE OMBUDSMAN and PEOPLE OF THE PHILIPPINES, respondents.
[G.R. No. 108431. July 14, 2000]
YNARES-SANTIAGO, J.
2H 2016-2017 Criminal Procedure (Atty. Cheska Senga)
FACTS:
The case involves a special civil action assailing the Sandiganbayans resolution on account that it committed grave
abuse of discretion.
The petitioner is one Oscar G. Raro, PCSOs Corporate Secretary and Acting Department manager of the Special
Projects Department, who was accused (with probable cause) of violating Section 3 of RA 3019 (Anti-Graft Act).
Raro, who was tasked to supervise the Small Town Lottery (STL) experimental project of the PCSO, was accused
to have willfully, unlawfully, and criminally demanded and received on four different occasions the amount totaling to
P116,799.99 from Luis Abano, provincial manager of the STL operations in Camarines Norte.
Petitioner reiterated therein that the preliminary investigation conducted was sham and attended by irregularities
amounting to violation of the very purpose for which preliminary investigation was instituted in our statute books.
ISSUE:
Whether or not there was an error or irregularity on how the preliminary investigation was conducted?
HELD:
None. In the case at bar, there is no showing of such special circumstances. The jurisdiction of the Ombudsman
over the complaint is not even questioned by petitioner as his motion to quash the information is based on the
allegedly highly anomalous preliminary investigation that amounted to a denial of his rights to due process and to
speedy disposition of the charge against him. However, an incomplete preliminary investigation or the absence
thereof may not warrant the quashal of an information. In such cases, the proper procedure is for the
Sandiganbayan to hold in abeyance any further proceedings conducted and to remand the case to the Ombudsman
for preliminary investigation or completion thereof. However, granting arguendo that the preliminary investigation
was sham and highly anomalous in this case, that defect was cured when the above procedure was in fact
observed by the Sandiganbayan. Hence, on the issue alone of the propriety of the remedy sought by petitioner, the
instant petition for certiorari and prohibition must fail. However, in the interest of justice, we shall resolve the issue of
whether or not the Ombudsman conducted the preliminary investigation erroneously and irregularly.
Petitioner contends that both the Ombudsman and the Sandiganbayan failed to examine the complainant personally
to determine the existence of probable cause that would warrant the filing of an information against him and,
consequently, the issuance of a warrant of arrest. He rues the fact that the complaint filed by Abao against him was
subscribed to before an ordinary notary public and that the sworn statements of witnesses against him were sworn
to before a provincial fiscal, not deputized by the Ombudsman, but acting merely as an officer authorized to
administer oaths.
Article XI, Section 12 of the 1987 Constitution, which was in force and effect when Abao filed the complaint against
petitioner, provides:
Sec. 12. The Ombudsman and his Deputies, as protectors of the people, shall act promptly on complaints
filed in any form or manner against public officials or employees of the Government, or any subdivision, agency or
instrumentality thereof, including government-owned or controlled corporations, and shall, in appropriate cases,
notify the complainants of the action taken and the result thereof.
The mandate to act promptly on complaints filed in any form or manner against officers or employees of the
Government is restated in Section 13 of Republic Act No. 6770 (The Ombudsman Act of 1989), approved into law
on November 17, 1989. The same authority to act on complaints in any form, either verbal or in writing, is also
reiterated in Rule 1, Section 3 of the Rules of Procedure of the Office of the Ombudsman, which is embodied in
Administrative Order No. 07 dated April 10, 1990, issued pursuant to the rule-making power of the Ombudsman
under Section 13 (8) of the 1987 Constitution and Sections 18, 23 and 27 of The Ombudsman Act of 1989.
12

In accordance with the foregoing constitutional and statutory provisions, this Court, in Diaz v. Sandiganbaya, held
valid charges that were not made in writing or under oath.
Clearly in consonance with the provision that the complaint may be in any form, the Ombudsman Rules of
Procedure does not require that the complaint be subscribed only before the Ombudsman or his duly authorized
representative. In any event, the issue of the sufficiency in form of the complaint was rendered moot and academic
by petitioners filing of a counter-affidavit wherein he controverted the allegations in the complaint.
The referral of the complaint to the NBI does not mean that the Ombudsman abdicated its constitutional and
statutory duty to conduct preliminary investigations. Article XI, Section 13 of the 1987 Constitution vests in the
Ombudsman the powers, functions and duties to:
(2) Direct, upon complaint or at its own instance, any public official or employee of the Government, or any
subdivision, agency or instrumentality thereof, as well as of any government-owned or controlled corporation with
original charter, to perform and expedite any act or duty required by law, or to stop, prevent, and correct any abuse
or impropriety in the performance of duties.
(3) Direct the officer concerned to take appropriate action against a public official or employee at fault, and
recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith.
(Underscoring supplied.)
Thus, by referring Abanos complaint to the NBI, the Ombudsman did not thereby delegate the conduct of the
preliminary investigation of the case to that investigative bureau. What was delegated was only the fact-finding
function, preparatory to the preliminary investigation still to be conducted by the Ombudsman. Notably, under Rule
II, Section 2 (d) of Administrative Order No. 07, the investigating officer has the option to forward the complaint to
the appropriate office or official for fact-finding investigation. While Administrative Order No. 07 took effect in mid-
1990 or after the complaint in this case was referred to the NBI, the inclusion of that constitutionally sanctioned
practice in the Ombudsman Rules of Procedure lends validity to the Ombudsmans action in this case.
Under the circumstances of this case, the Ombudsmans failure to personally administer oath to the
complainant does not mean that the Ombudsman did not personally determine the existence of probable cause to
warrant the filing of an information.
Neither did the Sandiganbayan violate petitioners right to due process of law by its failure to personally
examine the complainant before it issued the warrant of arrest. In a preliminary examination for the issuance of a
warrant of arrest, a court is not required to review in detail the evidence submitted during the preliminary
investigation. What is required is that the judge personally evaluates the report and supporting documents
submitted by the prosecution in determining probable cause. In the absence of evidence that the Sandiganbayan
did not personally evaluate the necessary records of the case, the presumption of regularity in the conduct of its
official business shall stand.
At this juncture, it is apropos to state once again the nature of a preliminary investigation. In Cruz, Jr. v.
People, the Court said:
It must be stressed that a preliminary investigation is merely inquisitorial, and it is often the only means of
discovering the persons who may be reasonably charged with a crime, to enable the prosecutor 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, and it does not place the persons against whom it is taken in jeopardy.
The established rule is that a preliminary investigation is not the occasion for the full and exhaustive display of the
parties evidence; it is for the presentation of such evidence only as may engender a well-grounded belief that an
offense has been committed and that the accused is probably guilty thereof.
The main function of the government prosecutor during the preliminary investigation is merely to determine the
existence of probable cause, and to file the corresponding information if he finds it to be so. And, probable cause
has been defined as the existence of such facts and circumstances as would excite the belief, in a reasonable mind,
2H 2016-2017 Criminal Procedure (Atty. Cheska Senga)
acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which
he was prosecuted.
In determining probable cause, an inquiry into the sufficiency of evidence to warrant conviction is not required. It is
enough that it is believed that the act or omission complained of constitutes the offense charged. The trial of a case
is conducted precisely for the reception of evidence of the prosecution in support of the charge. In the performance
of his task to determine probable cause, the Ombudsmans discretion is paramount. Thus, in Camanag v. Guerrero,
this Court said:
(S)uffice it to state that this Court has adopted a policy of non-interference in the conduct of preliminary
investigations, and leaves to the investigating prosecutor sufficient latitude of discretion in the exercise of
determination of what constitutes sufficient evidence as will establish probable cause for filing of information against
the supposed offender.
Neither is there merit in petitioners contention that the preliminary investigation conducted by the Ombudsman was
hasty, malicious and persecutory and that it was based on inadmissible evidence.
The record clearly shows that the Ombudsman exerted utmost effort to determine the veracity of Abaos allegations
against petitioner.
The length of time it took before the conclusion of the preliminary investigation may only be attributed to the
adherence of the Ombudsman and the NBI to the rules of procedure and the rudiments of fair play.
WHEREFORE, the instant petition for certiorari and prohibition is DISMISSED for lack of merit. The assailed
Resolutions of the Sandiganbayan are hereby AFFIRMED. The Sandiganbayan is DIRECTED to proceed with
deliberate dispatch in the disposition of Criminal Case No. 17800.
DOROMAL v. SANDIGANBAYAN
G.R. No. 85468, September 7, 2989
FACTS:
Quintin S. Doromal, a former Commissioner of the Presidential Commission on Good Government
(PCGG), for violation of the Anti-Graft and Corrupt Practices Act (RA 3019), Sec. 3(h), in connection with his
shareholdings and position as president and director of the Doromal International Trading Corporation (DITC) which
submitted bids to supply P61 million worth of electronic, electrical, automotive, mechanical and airconditioning
equipment to the Department of Education, Culture and Sports (or DECS) and the National Manpower and Youth
Council (or NMYC).
An information was then filed by the Tanodbayan against Doromal for the said violation and a preliminary
investigation was conducted.
The petitioner then filed a petition for certiorari and prohibition questioning the jurisdiction of the
Tanodbayan to file the information without the approval of the Ombudsman.
The Supreme Court held that the incumbent Tanodbayan (called Special Prosecutor under the 1987
Constitution and who is supposed to retain powers and duties NOT GIVEN to the Ombudsman) is clearly without
authority to conduct preliminary investigations and to direct the filing of criminal cases with the Sandiganbayan,
except upon orders of the Ombudsman. Subsequently annulling the information filed by the Tanodbayan.
A new information, duly approved by the Ombudsman, was filed in the Sandiganbayan, alleging that the
Doromal, a public officer, being then a Commissioner of the Presidential Commission on Good Government, did
then and there wilfully and unlawfully, participate in a business through the Doromal International Trading
13
Corporation, a family corporation of which he is the President, and which company participated in the biddings
conducted by the Department of Education, Culture and Sports and the National Manpower & Youth Council, which
act or participation is prohibited by law and the constitution.
The petitioner filed a motion to quash the information on the ground that it was invalid since there had
been no preliminary investigation for the new information that was filed against him.
The motion was denied by Sandiganbayan claiming that another preliminary investigation is unnecessary
because both old and new informations involve the same subject matter.
ISSUES:
Whether or not preliminary investigation is necessary even if both informations involve the same subject
matter.
Whether or not the information shall be effected as invalid due to the absence of preliminary investigation.
HELD:
The right of the accused to a preliminary investigation is "a substantial one." Its denial over his opposition
is a "prejudicial error, in that it subjects the accused to the loss of life, liberty, or property without due process of
law" provided by the Constitution.
Since the first information was annulled, the preliminary investigation conducted at that time shall also be
considered as void. Due to that fact, a new preliminary investigation must be conducted.
The absence of preliminary investigation does not affect the court's 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 such investigation, order the fiscal to conduct it or remand the case to the
inferior court so that the preliminary investigation may be conducted.
WHEREFORE, the petition for certiorari and prohibition is granted. The Sandiganbayan shall immediately
remand Criminal Case No. 12893 to the Office of the Ombudsman for preliminary investigation and shall hold in
abeyance the proceedings before it pending the result of such investigation.
CONCHITA CARPIO MORALES, AS THE OMBUDSMAN, Petitioner, v. COURT OF APPEALS (SIXTH DIVISION)
AND JEJOMAR ERWIN S. BINAY, JR., Respondents.
Facts:
A complaint/affidavit was filed by Atty. Renato L. Bondal and Nicolas "Ching" Enciso VI before the Office
of the Ombudsman against Binay, Jr. and other public officers and employees of the City Government of
Makati (Binay, Jr., et al), accusing them of Plunder and violation of Republic Act No. (RA)
3019,12 otherwise known as "The Anti-Graft and Corrupt Practices Act," in connection with the five (5)
phases of the procurement and construction of the Makati City Hall Parking Building (Makati Parking
Building).
The Ombudsman constituted a Special Panel of Investigators to conduct a fact-finding investigation,
submit an investigation report, and file the necessary complaint, if warranted (1st Special Panel). the 1st
Special Panel filed a complaint16 (OMB Complaint) against Binay, Jr., et al, charging them with six (6)
administrative cases17 for Grave Misconduct, Serious Dishonesty, and Conduct Prejudicial to the Best
2H 2016-2017 Criminal Procedure (Atty. Cheska Senga)
Interest of the Service, and six (6) criminal cases18 for violation of Section 3 (e) of RA 3019, Malversation
of Public Funds, and Falsification of Public Documents (OMB Cases).
Binays First Term:
o Binay, Jr. issued the Notice of Award21 for Phase III, IV and V of the Makati Parking Building
project to Hilmarc's Construction Corporation (Hilmarc's), and consequently, executed the
corresponding contract without the required publication and the lack of architectural design, 24 and
approved the release of funds therefor.
Binays Second Term:
o Binay, Jr. approved the release of funds for the remaining balance of contract with Hilmarc's for
Phase V of the Makati Parking Building project; and
o Approved the release of funds for the remaining balance of the contract 48 with MANA Architecture
& Interior Design Co. (MANA) for the design and architectural services covering the Makati
Parking Building.
Before Binay, Jr., et al.'s filing of their counter-affidavits, the Ombudsman, the subject preventive
suspension order, placing Binay, Jr., et al. under preventive suspension for not more than six (6) months
without pay, during the pendency of the OMB Cases. 53 The Ombudsman ruled that the requisites for the
preventive suspension of a public officer are present, 54 finding that:
o (a) the evidence of Binay, Jr., et al.'s guilt was strong given that
(1) the losing bidders and members of the Bids and Awards Committee of Makati City
had attested to the irregularities attending the Makati Parking Building project;
(2) the documents on record negated the publication of bids; and
(3) the disbursement vouchers, checks, and official receipts showed the release of
funds; and
o (b) (1) Binay, Jr., et al. were administratively charged with Grave Misconduct, Serious Dishonesty,
and Conduct Prejudicial to the Best Interest of the Service;
o (2) said charges, if proven to be true, warrant removal from public service under the Revised
Rules on Administrative Cases in the Civil Service (RRACCS), and
o (3) Binay, Jr., et al.'s respective positions give them access to public records and allow them to
influence possible witnesses; hence, their continued stay in office may prejudice the investigation
relative to the OMB Cases filed against them.
Proceedings Before the Court of Appeals:
o Binay contends: that he could not be held administratively liable for any anomalous activity
attending any of the five (5) phases of the Makati Parking Building project since: (a) Phases I and
II were undertaken before he was elected Mayor of Makati in 2010; and (b) Phases III to V
transpired during his first term and that his re-election as City Mayor of Makati for a second
term effectively condoned his administrative liability therefor, if any, thus rendering the
administrative cases against him moot and academic.61In any event, Binay, Jr. claimed that the
Ombudsman's preventive suspension order failed to show that the evidence of guilt
presented against him is strong, maintaining that he did not participate in any of the purported
irregularities.62 In support of his prayer for injunctive relief, Binay, Jr. argued that he has a clear
and unmistakable right to hold public office, having won by landslide vote in the 2010 and 2013
elections, and that, in view of the condonation doctrine, as well as the lack of evidence to sustain
the charges against him, his suspension from office would undeservedly deprive the electorate of
the services of the person they have conscientiously chosen and voted into office.
At noon of the same day, the CA issued a Resolution 65 (dated March 16, 2015), granting Binay, Jr.'s
prayer for a TRO,66 notwithstanding Pena, Jr.'s assumption of duties as Acting Mayor earlier that day.
o The OMB manifested71 that the TRO did not state what act was being restrained and that since
the preventive suspension order had already been served and implemented, there was no longer
any act to restrain
14
 the office can only be disciplined by an internal authority.
Proceedings before the SC:
o In view of the CA's supervening issuance of a WPI pursuant to its April 6, 2015 Resolution, the Evidently, all three aspects of independence intend to protect the Office of the Ombudsman frompolitical
Ombudsman filed a supplemental petition99 before this Court, arguing that the condonation harassment and pressure, so as to free it from the "insidious tentacles of politics."
doctrine is irrelevant to the determination of whether the evidence of guilt is strong for purposes of
issuing preventive suspension orders. The Ombudsman also maintained that a reliance on the That being the case, the concept of Ombudsman independence cannot be invoked as basis to
condonation doctrine is a matter of defense, which should have been raised by Binay, Jr. before it insulate the Ombudsman from judicial power constitutionally vested unto the courts. Courts are
during the administrative proceedings, and that, at any rate, there is no condonation because apolitical bodies, which are ordained to act as impartial tribunals and apply even justice to all.
Binay, Jr. committed acts subject of the OMB Complaint after his re-election in 2013. Hence, the Ombudsman's notion that it can be exempt from an incident of judicial power - that is, a
provisional writ of injunction against a preventive suspension order - clearly strays from the
Issues: concept's rationale of insulating the office from political harassment or pressure.
1. Whether or not the CA has subject matter jurisdiction to issue a TRO and/or WPI enjoining the
implementation of a preventive suspension order issued by the Ombudsman;

2. Whether or not the CA gravely abused its discretion in issuing the TRO and eventually, the WPI in
CA-G.R. SP No. 139453 enjoining the implementation of the preventive suspension order against 2. A. Subject matter of the CA's iniunctive writs is the preventive suspension order.
Binay, Jr. based on the condonation doctrine
By nature, a preventive suspension order is not a penalty but only a preventive measure. Its purpose is to
Held: prevent the official to be suspended from using his position and the powers and prerogatives of his office
to influence potential witnesses or tamper with records which may be vital in the prosecution of the case
1. YES against him
o OMB contends that the CA has no jurisdiction to issue any provisional injunctive writ against her office to The law sets forth two (2) conditions that must be satisfied to justify the issuance of an order of preventive
enjoin its preventive suspension orders. As basis, she invokes the first paragraph of Section 14, RA suspension pending an investigation, namely:
6770 in conjunction with her office's independence under the 1987 Constitution. She advances the idea
that "[i]n order to further ensure [her office's] independence, [RA 6770] likewise insulated it from judicial
intervention,"157particularly, "from injunctive reliefs traditionally obtainable from the courts,"158 claiming that (1) The evidence of guilt is strong; and
said writs may work "just as effectively as direct harassment or political pressure would."
(2) Either of the following circumstances co-exist with the first requirement:
A. The concept of Ombudsman independence. (a) The charge involves dishonesty, oppression or grave misconduct or neglect in the
performance of duty;cralawlawlibrary
Section 5, Article XI of the 1987 Constitution guarantees the independence of the Office of the
Ombudsman: (b) The charge would warrant removal from the service; or

(c) The respondent's continued stay in office may prejudice the case filed against him.
o Section 5. There is hereby created the independent Office of the Ombudsman, composed of the
Ombudsman to be known as Tanodbayan, one overall Deputy and at least one Deputy each for
Luzon, Visayas[,] and Mindanao. A separate Deputy for the military establishment may likewise B. The basis of the CA's injunctive writs is the condonation doctrine.
be appointed.
Gonzales III v. Office of the President is the first case which grappled with the meaning of the Examining the CA's Resolutions in CA-G.R. SP No. 139453 would, however, show that the Ombudsman's
Ombudsman's independence vis-a-vis the independence of the other constitutional bodies. the concept of non-compliance with the requisites provided in Section 24, RA 6770 was not the basis for the issuance of the
Ombudsman's independence covers three (3) things: assailed injunctive writs.

First: creation by the Constitution, which means that the office cannot be abolished, nor its The Ombudsman contends that it was inappropriate for the CA to have considered the condonation
constitutionally specified functions and privileges, be removed, altered, or modified by law, unless the doctrine since it was a matter of defense which should have been raised and passed upon by her office during the
Constitution itself allows, or an amendment thereto is made;cralawlawlibrary administrative disciplinary proceedings.243 However, the Court agrees with the CA that it was not precluded from
considering the same given that it was material to the propriety of according provisional injunctive relief in
Second: fiscal autonomy, which means that the office "may not be obstructed from [its] freedom to use or conformity with the ruling in Governor Garcia, Jr., which was the subsisting jurisprudence at that time. Thus, since
dispose of [its] funds for purposes germane to [its] functions; 168hence, its budget cannot be strategically condonation was duly raised by Binay, Jr. in his petition in CA-G.R. SP No. 139453,244 the CA did not err in passing
decreased by officials of the political branches of government so as to impair said functions; and upon the same. Note that although Binay, Jr. secondarily argued that the evidence of guilt against him was not
strong in his petition in CA-G.R. SP No. 139453,245 it appears that the CA found that the application of the
Third: insulation from executive supervision and control, which means that those within the ranks of condonation doctrine was already sufficient to enjoin the implementation of the preventive suspension order. Again,
2H 2016-2017 Criminal Procedure (Atty. Cheska Senga) 15
there is nothing aberrant with this since, as remarked in the same case of Governor Garcia, Jr., if it was established to a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is
that the acts subject of the administrative complaint were indeed committed during Binay, Jr.'s prior term, then, exercised in an arbitrary and despotic manner by reason of passion and hostility. 311 It has also been held
following the condonation doctrine, he can no longer be administratively charged. In other words, with condonation that "grave abuse of discretion arises when a lower court or tribunal patently violates the Constitution, the
having been invoked by Binay, Jr. as an exculpatory affirmative defense at the onset, the CA deemed it law or existing jurisprudence."312
unnecessary to determine if the evidence of guilt against him was strong, at least for the purpose of issuing the
subject injunctive writs. As earlier established, records disclose that the CA's resolutions directing the issuance of the assailed injunctive
writs were all hinged on cases enunciating the condonation doctrine. To recount, the March 16, 2015 Resolution
With the preliminary objection resolved and the basis of the assailed writs herein laid down, the Court now proceeds directing the issuance of the subject TRO was based on the case of Governor Garcia, Jr., while the April 6, 2015
to determine if the CA gravely abused its discretion in applying the condonation doctrine. Resolution directing the issuance of the subject WPI was based on the cases of Aguinaldo, Salalima, Mayor
Garcia, and again, Governor Garcia, Jr. Thus, by merely following settled precedents on the condonation doctrine,
C. Testing the Condonation Doctrine. which at that time, unwittingly remained "good law," it cannot be concluded that the CA committed a grave abuse of
discretion based on its legal attribution above. Accordingly, the WPI against the Ombudsman's preventive
Pascual's ratio decidendi may be dissected into three (3) parts: suspension order was correctly issued.

First, the penalty of removal may not be extended beyond the term in which the public officer was elected for each With this, the ensuing course of action should have been for the CA to resolve the main petition forcertiorari in CA-
term is separate and distinct: G.R. SP No. 139453 on the merits. However, considering that the Ombudsman, on October 9, 2015, had already
found Binay, Jr. administratively liable and imposed upon him the penalty of dismissal, which carries the accessory
penalty of perpetual disqualification from holding public office, for the present administrative charges against him,
Offenses committed, or acts done, during previous term are generally held not to furnish cause for the said CA petition appears to have been mooted. 313 As initially intimated, the preventive suspension order is only
removal and this is especially true where the constitution provides that the penalty in proceedings for removal an ancillary issuance that, at its core, serves the purpose of assisting the Office of the Ombudsman in its
shall not extend beyond the removal from office, and disqualification from holding office for the term for investigation. It therefore has no more purpose - and perforce, dissolves - upon the termination of the office's
which the officer was elected or appointed. process of investigation in the instant administrative case.
The underlying theory is that each term is separate from other terms x x x.272
Exceptions to the mootness principle.
Second, an elective official's re-election serves as a condonation of previous misconduct, thereby cutting the right
to remove him therefor; and This notwithstanding, this Court deems it apt to clarify that the mootness of the issue regarding the validity of the
preventive suspension order subject of this case does not preclude any of its foregoing determinations, particularly,
its abandonment of the condonation doctrine. As explained in Belgica, '"the moot and academic principle' is not a
[T]hat the reelection to office operates as a condonation of the officer's previous misconduct to the extent of cutting magical formula that can automatically dissuade the Court in resolving a case. The Court will decide cases,
off the right to remove him therefor. otherwise moot, if: first, there is a grave violation of the Constitution; second, the exceptional character of the
situation and the paramount public interest is involved; third, when the constitutional issue raised requires
Third, courts may not deprive the electorate, who are assumed to have known the life and character of candidates, formulation of controlling principles to guide the bench, the bar, and the public; and fourth, the case is capable of
of their right to elect officers: repetition yet evading review."
All of these scenarios obtain in this case:

The Court should never remove a public officer for acts done prior to his present term of office. To do otherwise
would be to deprive the people of their right to elect their officers. When the people have elected a man to office,
it must be assumed that they did this with knowledge of his life and character, and that they disregarded or
forgave his faults or misconduct, if he had been guilty of any. It is not for the court, by reason of such faults or
misconduct to practically overrule the will of the people.274
First, it would be a violation of the Court's own duty to uphold and defend the Constitution if it were not to abandon
the condonation doctrine now that its infirmities have become apparent. As extensively discussed, the continued
application of the condonation doctrine is simply impermissible under the auspices of the present Constitution which
explicitly mandates that public office is a public trust and that public officials shall be accountable to the people at all
times.

Consequence of ruling.
As for this section of the Decision, the issue to be resolved is whether or not the CA committed grave abuse of
discretion amounting to lack or excess of jurisdiction in issuing the assailed injunctive writs.
It is well-settled that an act of a court or tribunal can only be considered as with grave abuse of discretion when
such act is done in a capricious or whimsical exercise of judgment as is equivalent to lack of
jurisdiction. The abuse of discretion must be so patent and gross as to amount to an evasion of a positive duty or
2H 2016-2017 Criminal Procedure (Atty. Cheska Senga)
Second, the condonation doctrine is a peculiar jurisprudential creation that has persisted as a defense of elective
officials to escape administrative liability. It is the first time that the legal intricacies of this doctrine have been
brought to light; thus, this is a situation of exceptional character which this Court must ultimately resolve. Further,
since the doctrine has served as a perennial obstacle against exacting public accountability from the multitude of
elective local officials throughout the years, it is indubitable that paramount public interest is involved.
Third, the issue on the validity of the condonation doctrine clearly requires the formulation of controlling principles
to guide the bench, the bar, and the public. The issue does not only involve an in-depth exegesis of administrative
law principles, but also puts to the forefront of legal discourse the potency of the accountability provisions of the
1987 Constitution. The Court owes it to the bench, the bar, and the public to explain how this controversial doctrine
16
came about, and now, its reasons for abandoning the same in view of its relevance on the parameters of public
office.
And fourth, the defense of condonation has been consistently invoked by elective local officials against the
administrative charges filed against them. To provide a sample size, the Ombudsman has informed the Court that
"for the period of July 2013 to December 2014 alone, 85 cases from the Luzon Office and 24 cases from the Central
Office were dismissed on the ground of condonation. Thus, in just one and a half years, over a hundred cases of
alleged misconduct - involving infractions such as dishonesty, oppression, gross neglect of duty and grave
misconduct - were placed beyond the reach of the Ombudsman's investigatory and prosecutorial
powers."315 Evidently, this fortifies the finding that the case is capable of repetition and must therefore, not evade
review.
In any event, the abandonment of a doctrine is wholly within the prerogative of the Court. As mentioned, it is its own
jurisprudential creation and may therefore, pursuant to its mandate to uphold and defend the Constitution, revoke it
notwithstanding supervening events that render the subject of discussion moot.chan
Villarin vs. People of the Philippines
G.R. No. 175289, August 31, 2011
Del Castillo, J.
Mere possession of timber without the legal documents required under forest laws andregulations makes one
automatically liable of violation of Section 68, Presidential Decree(P.D.) No. 705, as amended. Lack of criminal
intent is not a valid defense.
FACTS:
Petitioner Aniano Latayada (Latayada) and three others namely, Barangay CaptainSudaria of Tagpangi, CDO,
Baillo and Boyatac, were charged with violation of Section 68, P.D.No. 705 as amended by Executive Order No.
277. City Prosecutor recommended to chargeVillarin as well.
The Version of the Defense:
In response to the clamor of the residents of Barangays Tampangan, Pigsag-an,Tuburan and Taglinao, all in
Cagayan De Oro City, Villarin, decided to repair the impassableBatinay bridge. The project was allegedly with the
concurrence of the Barangay Council.Pressured to immediately commence the needed repairs, Villarin
commissioned Boyatac to inquire from Sudaria about the availability of timber without first informing the City
Engineer.Sudaria asked for the specifications which Villarin gave. Villarin then asked Baillo and Boyatacto attend to
the same. When the timber was already available, it was transported fromTagpangi to Batinay. However, the timber
flitches were seized by the DENR Strike Force Teamand taken to its office where they were received by Vera Cruz,
the security guard on duty. RTCfound them guilty. CA affirmed.
ISSUE:
WON mere possession of timber without criminal intent is punishable.
HELD:
There are two distinct and separate offenses punished under Section 68 of P.D.No. 705, to wit:
(1) Cutting, gathering, collecting and removing timber or other forest productsfrom any forest land, or
timber from alienable or disposable public land, or fromprivate land without any authorization; and
(2) Possession of timber or other forest products without the legal documentsrequired under existing forest
laws and regulations.
The Information charged petitioners with the second offense which is consummated by the mere possession of
forest products without the proper documents. As a special law, the nature of the offense is malum prohibitum and
2H 2016-2017 Criminal Procedure (Atty. Cheska Senga)
as such, criminal intent is not an essential element. "However, the prosecution must prove that petitioners had the
intent to possess (animus possidendi)" the timber. "Possession, under the law, includes not only actual possession,
but also constructive possession. Actual possession exists when th e[object of the crime] is in the immediate
physical control of the accused. On the other hand, constructive possession exists when the [object of the crime] is
under the dominion and control of the accused or when he has the right to exercise dominion and control over the
place where it is found.
There is no dispute that petitioners were in constructive possession of the timber without the requisite legal
documents. Villarin and Latayada were personally involved in its procurement, delivery and storage without any
license or permit issued by any competent authority. Given these and considering that the offense is malum
prohibitum, petitioners contention that the possession of the illegally cut timber was not for personal gain but for
there pair of said bridge is, therefore, inconsequential.
Larranaga v. CA
Facts:
Petitioner Francisco Juan Larranaga is charged with two counts of kidnapping and serious illegal detention
pending before RTC Cebu.
Petitioner, represented by his mother, Margarita G. Larranaga, alleged that he was denied the right to
preliminary investigation and sought to annul the informations as well as the warrant of arrest issued in
consequence thereof. He prayed to be released from detention as well.
CA issued a resolution dated October 27, 1997 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.
On October 30, 1997, petitioner filed with the RTC of Cebu an urgent ex parte motion praying for his
immediate release pursuant to our October 27 resolution.
Judge Martin A. Ocampo, Presiding Judge of RTC Branch 7, Cebu City, issued an order deferring the
resolution of petitioners motion. It stated that it would be premature to act on the motion since the trial
court has not yet received an official copy of the October 27 resolution and that said resolution has not yet
attained finality. Furthermore, Judge Ocampo called the Courts attention to the fact that petitioner has
been arraigned on October 14, 1997 and waived his right to preliminary investigation.
Petitioner filed with this Court an urgent motion praying, among others, that Judge Ocampo be directed to
order petitioners immediate release upon receipt of our October 27 resolution.
Judge Ocampo filed with this Court a letter-complaint dated November 3, 1997 alleging that petitioners
counsels deliberately withheld from this Court the omnibus order, supplemental order and order of
arraignment, all issued by him on October 14, 1997. Judge Ocampo alleged that by withholding said
orders, petitioners counsels unwittingly misled the Court in its October 27 resolution.
On November 17, 1997, the counsels for the prosecution filed a motion for reconsideration of our October
27 resolution, contending:
Petitioner is charged with a continuing offense.
Since petitioner was arrested without a warrant, his case comes within the purview of Section 7 of
Rule 112.
The filing of the informations in court and the issuance of the warrants of arrest by Executive
Judge Priscila S. Agana cured whatever defect there was in petitioners arrest and detention.
Petitioner is no longer a minor pursuant to R.A. 6809.
Issue: Whether petitioner is entitled to a regular preliminary investigation.
Held: Yes.
17
 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. The facts show that on
September 15, 1997, 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 resisted arrest, called his sister and brother-in-law, and his lawyer. They later met with the PNP
at the CIG headquarters in Camp Crame, Quezon City to talk about the matter. After consulting with his
superiors, Legal Officer Zacarias ordered to stop the arrest and allowed petitioner to go home.
An arrest is defined as the taking of a person into custody in order that he may be bound to answer for the
commission of an offense.
It is made by an actual restraint of the person to be arrested, or by his submission to the custody of the
person making the arrest. An arrest signifies restraint on person, depriving one of his own will and liberty,
binding him to become obedient to the will of the law. The foregoing facts show no restraint upon the
person of petitioner. Neither do they show that petitioner was deprived of his own will and liberty. Hence,
Section 7 of Rule 112 does not apply to petitioner.
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.
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.
Judge Ocampos contention of waiver of preliminary investigation cannot be given weight.
In his omnibus order dated October 14, 1997, Judge Ocampo held that petitioner waived his right to
preliminary investigation when he failed to appear during the preliminary investigation set by the City
Prosecutor in the afternoon of September 17, 1997.
We disagree. A waiver, whether express or implied, must be made in clear and unequivocal manner. Mere
failure of petitioner and his counsel to appear before the City Prosecutor in the afternoon of September 17,
1997 cannot be construed as a waiver of his right to preliminary investigation, considering that petitioner
has been vigorously invoking his right to a regular preliminary investigation since the start of the
proceedings before the City Prosecutor.
Furthermore, petitioner and his counsel cannot be faulted for their refusal to comply with the City
Prosecutors directive to appear before him in the afternoon of September 17, 1997 for preliminary
investigation. As stated above, petitioners counsel appeared before the City Prosecutor earlier that day
and specifically demanded a regular preliminary investigation for his client. The City Prosecutor, however,
insisted that petitioner was entitled only to an inquest investigation.
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.
Side Issues/ Notes/ Pertinent Provisions:
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; and
2H 2016-2017 Criminal Procedure (Atty. Cheska Senga)
(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.
We reject the prosecutors' argument that petitioner was actually committing a crime at the time of the
arrest since kidnapping with serious illegal detention is a continuing crime.
The facts show that the alleged kidnapping was committed on July 16, 1997. One of the victims, Marijoy
Chiong, was found dead in Sitio Tanawan, Barangay Guadalupe, Carcar, Cebu on July 18, 1997, while the
other victim, Jacqueline Chiong, remains missing to date. There is no showing that at the time of the arrest
on September 15, 1997, Jacqueline Chiong was being detained by petitioner who was then residing in
Quezon City.
Court ruled in the negative as to whether or not he should be released from detention.
We held in Sanchez v. Demetriou[22] that the filing of charges and the issuance of the warrant of arrest
against a person invalidly detained will cure the defect of that detention or at least deny him the right to be
released because of such defect.
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.
Facts:
The City Prosecutor of Manila charged petitioner with the crime of Estafa thru Falsification of Public
Document before the Manila Regional Trial Court.
Petitioner executed before a Notary Public in the City of Manila an Affidavit of Self-Adjudication of a parcel
of land stating that she was the sole surviving heir of the registered owner when in fact she knew there
were other surviving heirs. Since the offended party did not reserve the right to file a separate civil action
arising from the criminal offense, the civil action was deemed instituted in the criminal case.
After trial on the merits, the trial court rendered its decision dated January 17, 1994 acquitting petitioner on
the ground of reasonable doubt. In the same decision, the trial court rendered judgment on the civil aspect
of the case, ordering the return to the surviving heirs of the parcel of land located in Bulacan.
On February 10, 1994, petitioner filed by registered mail a motion for reconsideration dated February 7,
1994, assailing the trial courts ruling on the civil aspect of the criminal case.
On April 18, 1994, the trial court denied petitioners motion for reconsideration which was denied.
Petitioner moved for a reconsideration of the trial courts order of April 18, 1994. The trial court denied the
same.
Left with no recourse, petitioner filed a petition for certiorari and mandamus with the Court of Appeals to
nullify the two assailed orders of the trial court.
Issue: Whether or not petitioner can institute a civil action notwithstanding the failure on the part of the petitioner to
reserve such civil action separately.
Held: No.
There are three important requisites which must be present before a court can acquire criminal jurisdiction:
First, the court must have jurisdiction over the subject matter.
Second, the court must have jurisdiction over the territory where the offense was committed.
Third, the court must have jurisdiction over the person of the accused.
In the instant case, the trial court had jurisdiction over the subject matter as the law has conferred on the
court the power to hear and decide cases involving estafa through falsification of a public document. The
trial court also had jurisdiction over the offense charged since the crime was committed within its territorial
18
 jurisdiction. The trial court also acquired jurisdiction over the person of accused-petitioner because she
voluntarily submitted to the courts authority.
Hence, the court necessarily exercises jurisdiction over all issues that the law requires the court to resolve.
One of the issues in a criminal case is the civil liability of the accused arising from the crime. Article 100 of
the Revised Penal Code provides that [E]very person criminally liable for a felony is also civilly liable.
Article 104 of the same Code states that civil liability x x x includes restitution.
The action for recovery of civil liability is deemed instituted in the criminal action unless reserved by the
offended party. In the instant case, the offended party did not reserve the civil action and the civil action
was deemed instituted in the criminal action. Although the trial court acquitted petitioner of the crime
charged, the acquittal, grounded on reasonable doubt, did not extinguish the civil liability.
PEDRO E. BUDIONGAN, JR., Municipal Mayor V. HON. JACINTO M. DELA CRUZ, JR., Asst. Special
Prosecutor I
Facts: By virtue of Municipal Ordinance No. 2, series of 2001, the Municipality of Carmen, Bohol appropriated the
amount of P450,000.00 for the purchase of a road roller for the municipality. However, on November 16, 2001, the
Municipal Development Council through Resolution No. 3 recommended that the amount of P450,000.00 be
realigned and used for the asphalt laying of a portion of the Tan Modesto Bernaldez Street.
Thereafter, the Office of the Municipal Engineer prepared a Program of Works and Cost Estimates duly
noted/approved by Municipal Budget Officer Taciana B. Espejo and Mayor Budiongan.
Bidding was conducted on March 5, 2002. The next day, March 6, 2002, Mayor Budiongan issued the Notice of
Award and Notice to Commence Work in favor of Herbert Malmis General Merchandise and Contractor, Inc. who
emerged as the lowest complying bidder.
On March 22, 2002, the Sangguniang Bayan passed Resolution No. 60, series of 2002, authorizing Mayor
Budiongan to sign and enter into contract with Malmis relative to the above project in the amount of P339,808.00.
With such authority, Malmis commenced with the project despite the fact that there was yet no ordinance approving
the realignment of the funds.
Thus, on May 17, 2002, the Sangguniang Bayan passed Ordinance No. 8, series of 2002, approving the
realignment of the fund. On June 14, 2002, Malmis was paid the contract price.
On July 3, 2002, Arlene P. Palgan and Valeriano U. Nadala filed a complaint against the petitioners before the
Office of the Deputy Ombudsman for Visayas alleging illegality in the conduct of the bidding, award and notice to
commence work since there was no fund appropriated for the purpose.
On July 31, 2003, the Office of the Deputy Ombudsman for Visayas found probable cause and recommended the
filing of an information for violation of Article 220 of the Revised Penal Code against the petitioners.
Upon review, the Case Assessment, Review and Reinvestigation Bureau of the Office of the Special Prosecutor,
issued the assailed Memorandum dated April 28, 2004, modifying the charge from violation of Article 220 of the
Revised Penal Code to (1) violation of Section 3(e) of R.A. No. 3019 against petitioners for allegedly giving
unwarranted benefit to Malmis and (2) violation of Section 3(h) of R.A. No. 3019 against petitioner Budiongan for
allegedly "directly or indirectly having financial or pecuniary interest in a contract or transaction in connection with
which he intervenes or takes part in his official capacity."
Thus, two separate Informations were filed before the Sandiganbayan (1) for violation of Section 3(e) of R.A. No.
3019 against the petitioners docketed as Criminal Case No. 28075 and (2) for violation of Section 3(h) of R.A. No.
3019 against petitioner Budiongan docketed as Criminal Case No. 28076.
Thereafter, petitioners filed a Motion to Quash the information charging them with violation of Sec. 3(e) of R.A. No.
3019. In a Resolution dated June 10, 2005, the Sandiganbayan granted the motion to quash and remanded
2H 2016-2017 Criminal Procedure (Atty. Cheska Senga)
Criminal Case No. 28075 to the Office of the Ombudsman for amendment of the Information. It held that although
Malmis benefited from the contract, the same is not unwarranted considering that the project was implemented,
executed and completed.
On June 27, 2005, an Amended Information was filed charging petitioners with violation of Sec. 3(e) of R.A. No.
3019, alleging that petitioners, by prematurely awarding to Malmis the project despite the absence of funds
specifically appropriated for such purpose, and thereafter paying the contract price from the Municipal Treasury
which was originally appropriated for the purchase of a road roller, caused damage and undue injury to the
government.
Containing material averments necessary to make out a case for the first mode of violating Section 3(e) of R.A. No.
3019, i.e., causing any undue injury to any party, including the government, the Sandiganbayan admitted the
Amended Information in its Resolution dated August 18, 2005.
On even date, petitioners filed with the Sandiganbayan a Motion for Leave of Court to File Motion for
Reinvestigation arguing that the above Informations were filed without affording them the opportunity to file counter-
affidavits to answer/rebut the modified charges.
Petitioners filed a Motion for Reconsideration with the Office of the Special Prosecutor which was denied for lack of
merit in the Resolution dated October 19, 2005.
Issue: I. WHETHER PUBLIC RESPONDENTS ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO
LACK OR IN EXCESS OF JURISDICTION IN REJECTING THE FINDINGS AND AMENDING/MODIFYING THE
RESOLUTION OF THE GRAFT INVESTIGATING OFFICER, OMBUDSMAN VISAYAS, AND IN FILING THE
INFORMATION FOR VIOLATION OF SEC. 3(e) OF RA 3019 WITHOUT AFFORDING PETITIONERS THE
OPPORTUNITY TO PRESENT THEIR COUNTER EVIDENCE IN A RE-INVESTIGATION;
II. WHETHER THE REFUSAL OR FAILURE TO CONDUCT A RE-INVESTIGATION HAS VIOLATED
PETITIONERS' RIGHT TO DUE PROCESS;
Held: The right to a preliminary investigation is not a constitutional right, but is merely a right conferred by statute.
The absence of a preliminary investigation does not impair the validity of the Information or otherwise render the
same defective. It does not affect the jurisdiction of the court over the case or constitute a ground for quashing the
Information. If absence of a preliminary investigation does not render the Information invalid nor affect the
jurisdiction of the court over the case, then the denial of a motion for reinvestigation cannot likewise invalidate the
Information or oust the court of its jurisdiction over the case.
Petitioners were not deprived of due process because they were afforded the opportunity to refute the charges by
filing their counter-affidavits. The modification of the offense charged did not come as a surprise to the petitioners
because it was based on the same set of facts and the same alleged illegal acts. Moreover, petitioners failed to aver
newly discovered evidence nor impute commission of grave errors or serious irregularities prejudicial to their
interest to warrant a reconsideration or reinvestigation of the case as required under Section 8, Rule III of the Rules
of Procedure of the Office of the Ombudsman. Thus, the modification of the offense charged, even without affording
the petitioners a new preliminary investigation, did not amount to a violation of their rights. Furthermore, the right to
preliminary investigation is deemed waived when the accused fails to invoke it before or at the time of entering a
plea at arraignment. The purpose of a preliminary investigation is merely to determine whether a crime has been
committed and whether there is probable cause to believe that the person accused of the crime is probably guilty
thereof and should be held for trial. A finding of probable cause needs only to rest on evidence showing that more
likely than not a crime has been committed and was committed by the suspect. Probable cause need not be based
on clear and convincing evidence of guilt, neither on evidence establishing guilt beyond reasonable doubt and
definitely, not on evidence establishing absolute certainty of guilt." The Office of the Special Prosecutor is an
integral component of the Ombudsman and is under the latter's supervision and control. Thus, whatever course of
action that the Ombudsman may take, whether to approve or to disapprove the recommendation of the investigating
19
prosecutor, is but an exercise of his discretionary powers based upon constitutional mandate. Generally, courts
should not interfere in such exercise. It is beyond the ambit of this Court to review the exercise of discretion of the
Ombudsman in prosecuting or dismissing a complaint filed before it, save in cases where there is clear showing of
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the Ombudsman. Absent any
showing of arbitrariness on the part of the prosecutor or any other officer authorized to conduct preliminary
investigation, as in the instant case, courts as a rule must defer to said officer's finding and determination of
probable cause, since the determination of the existence of probable cause is the function of the prosecutor.
DISMISSED.
HERMILO the motherfucker RODIS, SR.
vs.
THE SANDIGANFUCKINGBAYAN and PEOPLE OF THE PHILIPPINES
FACTS: On May 22, 1985, petitioner Hermilo Rodis, Sr., former President of the Philippine Underwriters Finance
Corporation (PHILFINANCE) together with some other persons, was charged before the Sandiganbayan in
separate informations with five (5) counts of violation of Section 3(b) of Republic Act No. 3019, otherwise known as
the Anti-Graft and Corruption Practices Act. Petitioner then filed a motion to quash said informations as against him
on the ground of lack of preliminary investigation, with the alternative prayer that the "issue and/or enforcement of
the warrant of arrests as against him be held in abeyance while he seeks a reinvestigation by the Tanodbayan
pursuant to his right of preliminary investigation.
In its opposition to said motion, the Prosecution cited as basis therefor Sec. 3, Rule 117 of the 1985 Rules
on Criminal Procedure enumerating the grounds for a motion to quash. It argued that since lack of preliminary
investigation is not among those enumerated thereunder, the motion to quash on this ground should be denied for
lack of merit and instead, petitioner should be ordered to file his Petition for Reinvestigation and/or Motion for
Reconsideration in accordance with Section 13 of the Revised Rules of Procedure of the Tanodbayan. Petitioner
claimed that he would file a petition for re-investigation with the Tanodbayan as suggested. However, during the
pendency of the reinvestigation, Sandiganbayan promulgated the assailed resolution denying petitioner's motion to
quash for lack of merit, stating that the alleged absence of preliminary investigation with respect to the accused
movant (Rodis) or his inability to participate in the preliminary investigation for the reason that he was not duly
served with a subpoena is not a proper ground for a motion to quash. Hence, this petition. The SC issued a TRO
enjoining the respondent Sandiganbayan from proceeding with the arraignment, pre-trial and trial of the case.
Petitioner contends that while it may be true that lack of preliminary investigation neither affects the
jurisdiction of the court nor impairs the validity of the information filed, nonetheless such lack of preliminary
investigation affects the regularity of the proceedings which led to the filing of the information, such that in several
cases, the Court had ordered the quashal of the information on said ground; and that although lack of preliminary
investigation is not enumerated as one of the grounds for a motion to quash, the Sandiganbayan can nevertheless
order the quashal of the informations pursuant to its inherent power to amend and control its processes so as to
make them conformable to law and justice. He further claims that given the chance to be heard on preliminary
investigation, he will demonstrate to the Tanodbayan that he had no participation in the transactions complained of,
except in one where he merely approved for reimbursement representation expense incurred by one subordinate to
him, the Executive Vice-President, and after it had been approved by one superior to him, the vice-Chairman of the
Executive Committee and Chief Executive Officer of the (PHILFINANCE).
Respondent People of the Philippines on the other hand avers that as petitioner does not dispute that a
preliminary investigation was indeed conducted, what he is really protesting against is the lost opportunity to
participate therein due to the alleged failure of the Tanodbayan to serve a subpoena upon him. It is, however,
contended that this alleged failure did not affect the regularity of the preliminary investigation as the Tanodbayan is
justified under Section 3, Rule 112 of the 1985 Rules of Criminal Procedure in proceeding with the preliminary
2H 2016-2017 Criminal Procedure (Atty. Cheska Senga)
investigation after an attempt to subpoena petitioner at the latter's known address proved unavailing, and in basing
its resolution on the evidence presented by the complainant.
ISSUE: Whether or not the lack of a preliminary investigation may cause the quashal of an information
RULING: NO. Under Section 3, sub-section (d) of Rule 112 of the 1985 Rules on Criminal Procedure, "if the
respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits within the ten (10) day
period, the investigating officer shall base his resolution on the evidence presented by the complainant." It is to be
noted that this provision does not require as a condition sine qua non to the validity of the proceedings 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.
Considering that petitioner has voluntarily appeared before the respondent Sandiganbayan in connection
with the criminal cases in question and has appeared in other preliminary investigations of other PHILFINANCE
charges filed in various fiscals' offices and the Ministry (now Department) of Justice, it is apparent that the non-
service of the subpoena upon him was not of his own doing or liking. To apply the full force and effect of section 3,
sub-section (d) of Rule 112 of the 1985 Rules on Criminal Procedure would, to our mind, greatly prejudice him.
It is worthwhile repeating that the avowed purposes of a preliminary investigation are "to secure the
innocent against hasty, malicious and oppressive prosecution, and to protect him from an open and public
accusation of crime, from the trouble, expense and anxiety of' a public trial, and also to protect the state from
useless and expensive trials and while the "absence of preliminary investigations does not affect the court's
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 such investigation, order the
fiscal to conduct it or remand the case to the inferior court so that the preliminary investigation may be conducted. In
this case, the Tanodbayan, has the duty to conduct the said investigation.
Thus, although the Sandiganbayan was correct in ruling that the absence of a preliminary investigation is
not a ground for quashing an information, it should have held the proceedings in the criminal cases in abeyance
pending resolution by the Tanodbayan of petitioner's petition for reinvestigation, as alternatively prayed for by him in
his motion to quash.
GIRLIE M. QUISAY, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.
G.R. No. 216920 January 13, 2016
Facts:
The Office of the City Prosecutor of Makati City (OCP-Makati) issued a Pasiya or Resolution finding probable
cause against petitioner for violation of Section 10 of Republic Act No. (RA) 7610, otherwise known as the "Special
Protection of Children Against Abuse, Exploitation and Discrimination Act." Consequently, a Pabatid Sakdal or
Information was filed before the RTC charging petitioner of such crime.
Petitioner moved for the quashal of Information against her on the ground of lack of authority of the person
who filed the same before the RTC and that the Pasiya issued by the OCP-Makati was penned by Assistant City
Prosecutor De La Cruz and approved by Senior Assistant City Prosecutor Hirang, while the Pabatid Sakdal was
penned by ACP De La Cruz, without any approval from any higher authority, albeit with a Certification claiming that
ACP De La Cruz has prior written authority or approval from the City Prosecutor in filing the said Information.
Quisay claimed that nothing in the Pasiya and Pabatid Sakdal would show that ACP De La Cruz and/or SACP
Hirang had prior written authority or approval from the City Prosecutor to file or approve the filing of the Information
against her and such must be quashed for being tainted with a jurisdictional defect that cannot be cured.
OCP-Makati countered that the review prosecutor, SACP Hirang, was authorized to approve
the Pasiya pursuant to OCP-Makati Office Order No. 32.9 Further, it maintained that the Pabatid Sakdal was filed
with the prior approval of the City Prosecutor as shown in the Certification in the Information itself.
Issue:
20
 Whether or not the review prosecutor had prior written authority or approval from the City Prosecutor to file the
Information against Quisay (in accordance with Section 4, par. 3, Rule 112)
Held:
Section 4, Rule 112 of the Revised Rules on Criminal Procedure states that the filing of a complaint or
information requires a prior written authority or approval of the named officers therein before a complaint or
information may be filed before the courts:
No complaint or information may be filed or dismissed by an investigating prosecutor without the prior
written authority or approval of the provincial or city prosecutor or chief state prosecutor or the
Ombudsman or his deputy.
As a general rule, complaints or information filed before the courts without the prior written authority or
approval of the foregoing authorized officers renders the same defective and, therefore, subject to quashal pursuant
to Section 3 (d), Rule 117 of the same Rules
SECTION 3. Grounds. - The accused may move to quash the complaint or information on any of the
following grounds:
(d) That the officer who filed the information had no authority to do so;
The filing of an Information by an officer without the requisite authority to file the same constitutes a
jurisdictional infirmity which cannot be cured by silence, waiver, acquiescence, or even by express consent. Hence,
such ground may be raised at any stage of the proceedings.
The Pasiya or Resolution finding probable cause to indict petitioner of the crime charged, was validly made as
it bore the approval of one of the designated review prosecutors for OCP-Makati, SACP Hirang, as evidenced by his
signature therein.
The same could not be said of the Pabatid Sakdal or Information filed before the RTC, as there was no
showing that it was approved by either the City Prosecutor of Makati or any of the OCP-Makati's division chiefs or
review prosecutors. All it contained was a Certification from ACP De La Cruz which stated, among others,
that "DAGDAG KO PANG PINATUTUNAYAN na angpaghahain ng sakdal na ito ay may nakasulat na naunang
pahintulot o pagpapatibay ng Panlunsod na Taga-Usig"28 - which translates to "and that the filing of the Information
is with the prior authority and approval of the City Prosecutor."
The Informations were defective as it the officers filing the same in court either lacked the authority to do so or
failed to show that they obtained prior written authority from any of those authorized officers enumerated in Section
4, Rule 112. ACP De La Cruz failed to prove that he was authorized to file the Pabatid Sakdal or Information before
the RTC by himself. Nothing indicates that ACP De La Cruz sought the approval of either the City Prosecutor or any
of those authorized pursuant to OCP-Makati Office Order No. 32 in filing the Pabatid Sakdal.
The court stressed that, "the Rules of Court governs the pleading, practice, and procedure in all courts of the
Philippines. For the orderly administration of justice, the provisions contained therein should be followed by all
litigants, but especially by the prosecution arm of the Government."
DE OCAMPO v. SECRETARY OF JUSTICE
G.R. No. 147932; 25 January 2006
Carpio, J.
FACTS:
Magdalena Dacarra (Magdalena) executed a sworn statement before the Womens Desk of the CPD Police Station
in Batasan Hills, QC of an incident that happened on 4 December 1999 to her 9-year old son, Ronald. She narrated
that Ronald arrived home at around 6PM complaining about dizziness which was eventually followed by vomiting.
Ronald said that his teacher, petitioner Laila De Ocampo, banged hus head against that of his classmate, Lorendo
2H 2016-2017 Criminal Procedure (Atty. Cheska Senga)
Orayan (Lorendo). Upon inspection, Magdalena saw a woundless contusion in his head. He was then brought to an
albularyo. The following morning, Ronald was brought to the East Avenue Medical Center for x-ray. The attending
physician informed Magdalena that Ronalds head had a fracture. He died 4 days after. Lorendo also executed a
sworn statement narrating how petitioner banged his head against Ronalds.
During the inquest proceedings on 14 December 1999, it was ruled that evidence warrants the release of petitioner
for further investigation of the charges against her. The case is not proper for inquest as the incident complained of
happened on December 4. Further, it is found that the evidence was insufficient to support the charge for homicide
against her. 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 Ronald.
Subsequently the case was referred for preliminary investigation. Lorendos mother, Erlinda Orayan (Erlinda)
alleged that De Ocampo 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. 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.
In her counter-affidavit, De Ocampo invoked the disposition of the inquest prosecutor finding insufficient evidence to
support the charges against her. She assailed the omission in Magdalenas sworn statement about Ronald's head
injury due to a vehicular accident in November 1997. Petitioner pointed out the absence of damage/injury on
Lorendo as borne out by his medical certificate. She contended that the head-banging incident was not the
proximate cause of Ronald's death, but the failed medical attention or medical negligence. Petitioner also alleged
that Quirong and Lugales have immature perception. Petitioner further asserted that the causes of death stated in
Ronald's Death Certificate are hearsay and inadmissible in the preliminary investigation.
Ronald's 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 states the cause of death as Intracranial hemorrhage secondary to traumatic injury of
the head. The investigating prosecutor thus, issued a Resolution finding probable cause against petitioner for the
offenses charged.
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. She argued that the investigating prosecutor erred in concluding that her alleged act
of banging Ronalds and Lorendos heads was the cause of Ronald's 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.
The DOJ Secretary upheld the investigating prosecutor's finding that Ronald's injury was the direct and natural
result of petitioner's act of banging Ronalds 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 Ronald's death
was allegedly the failed medical attention or medical negligence. The DOJ Secretary also 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. Thus, the claim that she is innocent as held by the inquest
prosecutor was rejected. According to the DOJ Secretary, the inquest prosecutor did not dismiss the case. She
merely recommended petitioner's release for further investigation since the case was not proper for inquest and the
evidence was then insufficient.
ISSUE:
Is the petitioner denied due process in the preliminary investigation for not conducting a clarificatory hearing?
HELD:
21
No. 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.
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 as well 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. Petitioner cannot successfully invoke denial of due process since she was given the
opportunity of a hearing. She even submitted her counter-affidavit to the investigating prosecutor.
Preliminary investigation is merely inquisitorial. It is not a trial of the case on the merits. Its sole purpose is to
determine whether a crime has been committed and whether the respondent is probably guilty of the crime. It is not
the occasion for the full and exhaustive display of the parties evidence. Hence, 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.
Pemberton V De Lima
A complaint for murder was filed by the PNP Olongapo City Police Office and private respondent Marilou Laude
against petitioner Joseph Scott Pemberton. He received a subpoena directing him to present himself for the lifting of
his fingerprint and of buccal swabs. Pemberton opposed this in his Opposition to the Omnibus Motion, alleging that
there is no probable cause to indict him for killing Jennifer Laude. Further, he averred that there is a lack of
Circumstances Qualifying the Offense to Murder. Through its resolution, RTC Olangapo issued a warrant of arrest
to Pemberton. The accused filed a petition for review before the DOJ but the same was denied by Sec. De Lima.
Aggrieved, Pemberton filed this Petition for Certiorari arguing that De Lima committee grave abuse of discretion
amounting to excess or absence of jurisdiction based on two MAIN grounds: Secretary De Lima found probable
cause to charge Pemberton with the crime of murder when "the evidence on record does not support the existence
of probable cause to indict [him] . . . with either homicide or murder[;]" and Secretary De Lima found that "the killing
was attended with the qualifying circumstances of treachery, abuse of superior strength[,] and cruelty despite
prevailing jurisprudence dictating that the elements of these qualifying circumstances . . . be established by direct
evidence.
Issue:
1. WON there was no probable cause to indict Pemberton of the crime murder.
2. WON the killing was attended with qualifying circumstances.
Ruling:
1. Yes, Sec. De Lima correctly assessed that there was ample evidence to establish probable cause. Citing
Chan v Sec of Justice, Probable cause has been defined as the existence of such facts and
circumstances as would lead a person of ordinary caution and prudence to entertain an honest and strong
suspicion that the person charged is guilty of the crime subject of the investigation. Being based merely on
opinion and reasonable belief, it does not import absolute certainty. Probable cause need not be based on
clear and convincing evidence of guilt, as the investigating officer acts upon reasonable belief. Probable
cause implies probability of guilt and requires more than bare suspicion but less than evidence which
2H 2016-2017 Criminal Procedure (Atty. Cheska Senga)
would justify a conviction. Absence of direct evidence does not preclude a finding of probable cause. It
has been the consistent pronouncement of the Supreme Court that, in such cases, the prosecution may
resort to circumstantial evidence.
In the case at bar, the various pieces of evidence so far presented in this case, i.e., the CCTV footage of
Ambyanz showing Gelviro, Laude and respondent leaving the club together; the unequivocal testimonies
of Gelviro and Gallamos positively identifying respondent as the person who was last seen with Laude on
the night he died; the result of the general physical examination conducted on respondent showing
abrasions and light scratches on different parts of his body; his latent print on one of the condoms found at
the crime scene; and the unequivocal testimonies of respondent's fellow Marine servicemen who were with
him on that fateful night, lead to no other conclusion than that respondent was the perpetrator of the crime.
The results of the physical examination conducted on respondent and Laude's cadaver, as well as the
ocular inspection of the crime scene, demonstrate the attendant qualifying circumstances of treachery,
abuse of superior strength, and cruelty. The convergence of the foregoing circumstances all taken together
leads to the fair and reasonable inference that respondent is probably guilty of killing Laude through
treachery, abuse of superior strength, and cruelty.
2. Yes. Treachery clearly attended the killing of Laude. The evidence reveals that respondent choked him
from behind. In appreciating the element of abuse of superior strength, Pemberton is a member of [the]
United States Marine Corps, which is known to have the strictest recruitment standards among the
Uniformed Services of the United States Armed Forces. In view of the rigorous physical and mental
training requirements for enlistment, all members of the Marine Corps possess superior strength and
exceptional combat skills. On the other hand, Laude, albeit biologically a man, is a transgender who chose
to adapt (sic) a woman's physical appearance and behavior. Thus, it is clear that there is manifest physical
disparity between respondent and Laude and that the former took advantage of his superior strength to
cause the death of Laude, as evidenced by the multiple abrasions and contusions found on the latter.
Cruelty also attended the commission of the crime. The autopsy results that Laude died of "asphyxia due
to drowning and strangulation" shows that while he was still breathing, respondent drowned him by
forcefully submerging his head in the water inside the toilet bowl.
Ching v The Secretary of Justice
Facts: Alfredo Ching was the Senior Vice-President of Philippine Blooming Mills, Inc. (PBMI). PBMI, through
petitioner, applied with the RCBC (respondent bank) for the issuance of commercial letters of credit to finance its
importation of assorted goods. Under the receipts, petitioner agreed to hold the goods in trust for the said bank, with
authority to sell but not by way of conditional sale, pledge or otherwise; and in case such goods were sold, to turn
over the proceeds thereof as soon as received, to apply against the relative acceptances and payment of other
indebtedness to respondent bank. In case the goods remained unsold within the specified period, the goods were to
be returned to respondent bank without any need of demand. Thus, said goods, manufactured products or
proceeds thereof, whether in the form of money or bills, receivables, or accounts separate and capable of
identification were respondent banks property. When the trust receipts matured, petitioner failed to return the
goods to respondent bank, or to return their value amounting to P6,940,280.66 despite demands. Thus, the bank
filed a criminal complaint for estafa against petitioner in the Office of the City Prosecutor of Manila.
After the requisite preliminary investigation, the City Prosecutor found probable cause for estafa under Article 315,
1(b) of the RPC, in relation to (P.D.) No. 115, otherwise known as the Trust Receipts Law. 13 Informations were
filed against the petitioner before the RTC. Petitioner appealed the resolution of the City Prosecutor to the then
Minister of Justice (Secretary of Justice na to guys). The appeal was dismissed and petitioner moved for its
reconsideration. Minister of Justice granted the motion, thus reversing the previous resolution finding probable
cause against petitioner. The City Prosecutor was ordered to move for the withdrawal of the Informations.
Respondent bank filed a motion for reconsideration which was denied.The RTC granted the Motion to Quash the
Informations filed by petitioner on the ground that the material allegations therein did not amount to estafa.
22
Respondent bank re-filed the criminal complaint for estafa against petitioner before the Office of the City Prosecutor
of Manila. Preliminary investigation ensued. City Prosecutor ruled that there was no probable cause to charge
petitioner with violating P.D. No. 115, as petitioners liability was only civil, not criminal, having signed the trust
receipts as surety. Respondent bank appealed the resolution to the Department of Justice (DOJ). Secretary of
Justice issued a Resolution granting the petition and reversing the assailed resolution of the City Prosecutor
because the petitioner executed the 13 trust receipts and thus was the one responsible for the offense. Justice
Secretary further stated that the respondent bound himself under the terms of the trust receipts not only as a
corporate official of PBMI but also as its surety; hence, he could be proceeded against in two (2) ways: first, as
surety and second, as the corporate official responsible for the offense under P.D. No. 115, via criminal prosecution.
Moreover, P.D. No. 115 explicitly allows the prosecution of corporate officers "without prejudice to the civil liabilities
arising from the criminal offense." Thus, according to the Justice Secretary, following Rizal Commercial Banking
Corporation, the civil liability imposed is clearly separate and distinct from the criminal liability of the accused under
P.D. No. 115. Conformably with the Resolution of the Secretary of Justice, the City Prosecutor filed 13 Informations
against petitioner for violation of P.D. No. 115 before the RTC.
Petitioner then filed a petition for certiorari, prohibition and mandamus with the CA, assailing the resolutions of the
Secretary of Justice.
CA ruling: (a) the certification of non-forum shopping executed by petitioner and incorporated in the petition was
defective for failure to comply with the first two of the three-fold undertakings prescribed in Rule 7, Section 5 of the
Revised Rules of Civil Procedure; and (b) the petition for certiorari, prohibition and mandamus was not the proper
remedy of the petitioner (c) petitioner, being the Senior Vice-President of PBMI and the signatory to the trust
receipts, is criminally liable for violation of P.D. No. 115; (d) the issue raised by the petitioner, on whether he
violated P.D. No. 115 by his actuations, had already been resolved and laid to rest in Allied Bank Corporation v.
Ordoez; and (e) petitioner was estopped from raising the City Prosecutors delay in the final disposition of the
preliminary investigation because he failed to do so in the DOJ.
ISSUES:
THE COURT OF APPEALS ERRED WHEN IT DISMISSED THE PETITION ON THE GROUND THAT THE
CERTIFICATION OF NON-FORUM SHOPPING INCORPORATED THEREIN WAS DEFECTIVE. (Di ko alam kung
related ba to basahin niyo na lang din)
WHETHER OR NOT THE JUSTICE SECRTARY COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING
TO LACK OR EXCESS OF JURISDICTION IN COMING OUT WITH THE ASSAILED RESOLUTIONS
RULING:
Forum-shopping issue: We agree with the ruling of the CA that the certification of non-forum shopping petitioner
incorporated in his petition before the appellate court is defective. Petitioner failed to certify that he "had not
heretofore commenced any other action involving the same issues in the Supreme Court, the Court of Appeals or
the different divisions thereof or any other tribunal or agency" as required by paragraph 4, Section 3, Rule 46 of the
Revised Rules of Court.
Justice Secretary grave abuse of discretion: under Section 4, Rule 112 of the 2000 Rules of Criminal Procedure, the
Information shall be prepared by the Investigating Prosecutor against the respondent only if he or she finds
probable cause to hold such respondent for trial. The Investigating Prosecutor acts without or in excess of his
authority under the Rule if the Information is filed against the respondent despite absence of evidence showing
probable cause therefor. If the Secretary of Justice reverses the Resolution of the Investigating Prosecutor who
found no probable cause to hold the respondent for trial, and orders such prosecutor to file the Information despite
the absence of probable cause, the Secretary of Justice acts contrary to law, without authority and/or in excess of
authority. Such resolution may likewise be nullified in a petition for certiorari under Rule 65 of the Revised Rules of
Civil Procedure.A preliminary investigation, designed to secure the respondent against hasty, malicious and
oppressive prosecution, is an inquiry to determine whether (a) a crime has been committed; and (b) whether there
is probable cause to believe that the accused is guilty thereof. It is a means of discovering the person or persons
who may be reasonably charged with a crime. Probable cause need not be based on clear and convincing evidence
of guilt, as the investigating officer acts upon probable cause of reasonable belief. Probable cause implies
probability of guilt and requires more than bare suspicion but less than evidence which would justify a conviction. A
2H 2016-2017 Criminal Procedure (Atty. Cheska Senga)
finding of probable cause needs only to rest on evidence showing that more likely than not, a crime has been
committed by the suspect. However, while probable cause should be determined in a summary manner, there is a
need to examine the evidence with care to prevent material damage to a potential accuseds constitutional right to
liberty and the guarantees of freedom and fair play and to protect the State from the burden of unnecessary
expenses in prosecuting alleged offenses and holding trials arising from false, fraudulent or groundless charges.
In this case, petitioner failed to establish that the Secretary of Justice committed grave abuse of discretion in issuing
the assailed resolutions. Indeed, he acted in accord with law and the evidence.
Ruling sa case: In this case, petitioner signed the trust receipts in question. He cannot, thus, hide behind the cloak
of the separate corporate personality of PBMI.
Roberts, Jr. v. CA
Facts: Several thousand holders of 349 Pepsi crowns in connection with the Pepsi Cola Products Phils Number
Fever Promotion filed with the Office of the City Prosecutor of Quezon City complaints against the petitioners in
their respective capacities as corporate officers of PEPSI. The complaints respectively accuse the petitioners and
the other PEPSI officials of the following crimes: Estafa, violation of R.A. No. 7394 (as the Consumer Act), violation
of E.O. No. 913; and violation of Act No. 2333, entitled An Act Relative to Untrue, Deceptive and Misleading
Advertisements.
After appropriate proceedings, the investigating prosecutor released a Joint Resolution where he
recommended the filing of an information against the petitioners and others for the violation of Article 318 of the
Revised Penal Code and the dismissal of the complaints for the violation of Article 315, 2(d) of the Revised Penal
Code; R.A. No. 7394; Act No. 2333, as amended by Act No. 3740; and E.O. No. 913. City Prosecutor approved the
recommendation.
The information for Estafa attached to the Joint Resolution was approved by Chief of the Prosecution Division,
upon authority of the City Prosecutor of Quezon City, and was filed with the RTC of Quezon City.
The petitioners filed with the Office of the City Prosecutor a motion for the reconsideration of the Joint
Resolution.
The petitioners filed with the DOJ a Petition for Review wherein, for the same grounds adduced in the
aforementioned motion for reconsideration, they prayed that the Joint Resolution be reversed and the complaints
dismissed. They further stated that the approval of the Joint Resolution by the City prosecutor was not the result of
a careful scrutiny and independent evaluation of the relevant facts and the applicable law but of the grave threats,
intimidation, and actual violence which the complainants had inflicted on him and his assistant prosecutors.
On that same date, the petitioners filed Motions to Suspend Proceedings and to Hold in Abeyance Issuance of
Warrants of Arrest on the ground that they had filed the aforesaid Petition for Review.
Acting on the Petition for Review, Chief State Prosecutor issued a 1st Indorsement, directing the City
Prosecutor of Quezon City to inform the DOJ whether the petitioners have already been arraigned, and if not, to
move in court for the deferment of further proceedings in the case and to elevate to the DOJ the entire records of
the case, for the case is being treated as an exception pursuant to Section 4 of Department Circular No. 7.
Criminal Case was raffled to RTC of Quezon City.
23
 Private prosecutor filed an Ex-Parte Motion for Issuance of Warrants of Arrest.
In the afternoon of that same day, petitioner Paul Roberts, Jr., filed a Supplemental Urgent Motion to hold in
Abeyance Issuance of Warrant of Arrest and to Suspend Proceedings. He stressed that the DOJ had taken
cognizance of the Petition for Review by directing the City Prosecutor to elevate the records of I.S. No. P-4401 and
its related cases and asserted that the petition for review was an essential part of the petitioners right to a
preliminary investigation.
The next day, respondent Judge Asuncion, Presiding Judge of Branch 104 of the RTC of Quezon City, issued
an order advising the parties that his court would be guided by the doctrine laid down by the Supreme Court in the
case of Crespo vs. Mogul, 151 SCRA 462 and not by the resolution of the Department of Justice on the petition for
review undertaken by the accused.
Assistant City Prosecutor filed with the trial court a Motion to Defer Arraignment wherein he also prayed that
further proceedings be held in abeyance pending final disposition by the Department of Justice.
An Amended Information accompanied by a corresponding motion to admit it was filed. The amendments
merely consist in the statement that the complainants therein were only among others who were defrauded by the
accused and that the damage or prejudice caused amounted to several billions of pesos, representing the amounts
due them from their winning 349 crowns/caps. The trial court admitted the amended information on the same date.
The petitioners filed a Memorandum in support of their Motion to Suspend Proceedings and to Hold in
Abeyance the Issuance of the Warrants of Arrest.
Respondent Judge Asuncion issued the challenged order (1) denying the petitioners Motion to Suspend
Proceedings and to Hold In Abeyance Issuance of Warrants of Arrest and the public prosecutors Motion to Defer
Arraignment and (2) directing the issuance of the warrants of arrest.
Trial Prosecutor Tirso M. Gavero in his Motion to Defer Arraignment averred that there is a pending petition for
review with the Department of Justice filed by the accused and the Office of the City Prosecutor was directed,
among other things, to cause for the deferment of further proceedings pending final disposition of said petition by
the Department of Justice.
The motions filed by the accused and the Trial Prosecutor were DENIED.
ISSUE: Whether or not respondent Judge acted with grave abuse of discretion when he ordered the arrest of the
petitioners without examining the record of the preliminary investigation and in determining for himself on the basis
thereof the existence of probable cause.
HELD: Yes.
The real and ultimate test of the independence and integrity of this court is not the filing of the aforementioned
motions at that stage of the proceedings but the filing of a motion to dismiss or to withdraw the information on the
basis of a resolution of the petition for review reversing the Joint Resolution of the investigating prosecutor.
However, once a motion to dismiss or withdraw the information is filed the trial judge may grant or deny it, not out of
subservience to the Secretary of Justice, but in faithful exercise of judicial prerogative. This Court pertinently stated
so in Martinez vs. Court of Appeals:
Whether to approve or disapprove the stand taken by the prosecution is not the exercise of discretion
required in cases like this. The trial judge must himself be convinced that there was indeed no sufficient
evidence against the accused, and this conclusion can be arrived at only after an assessment of the evidence
2H 2016-2017 Criminal Procedure (Atty. Cheska Senga)
in the possession of the prosecution. What was imperatively required was the trial judges own assessment of
such evidence, it not being sufficient for the valid and proper exercise of judicial discretion merely to accept
the prosecutions word for its supposed insufficiency.
As aptly observed the Office of the Solicitor General, in failing to make an independent finding of the merits of
the case and merely anchoring the dismissal on the revised position of the prosecution, the trial judge relinquished
the discretion he was duty bound to exercise. In effect, it was the prosecution, through the Department of Justice
which decided what to do and not the court which was reduced to a mere rubber stamp in violation of the ruling
in Crespo vs. Mogul.
SOLIVEN vs. MAKASIAR
FACTS: Luis Beltran is among the petitioners in this case. He, together with others, was charged with libel by the
then president Corzaon Aquino (Soliven broadcasted the statement that President Aquino hid under her bed during
a coup d' etat). Cory herself filed a complaint-affidavit against him and others.
ISSUE: Whether or not the constitutional rights of Beltran were violated when respondent RTC judge issued a
warrant for his arrest without personally examining the complainant and the witnesses, if any, to determine probable
cause
HELD: With respect to petitioner Beltran, the allegation of denial of due process of law in the preliminary
investigation is negated by the fact that instead of submitting his counter- affidavits, he filed a "Motion to Declare
Proceedings Closed," in effect waiving his right to refute the complaint by filing counter-affidavits. Due process of
law does not require that the respondent in a criminal case actually file his counter-affidavits before the preliminary
investigation is deemed completed. All that is required is that the respondent be given the opportunity to submit
counter-affidavits if he is so minded.
The second issue, raised by petitioner Beltran, calls for an interpretation of the constitutional provision on the
issuance of warrants of arrest. The pertinent provision reads:
Art. III, Sec. 2. The right of the people to be secure in their persons, houses, papers and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search
warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge
after examination nder oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or things to be seized.
The addition of the word "personally" after the word "determined" and the deletion of the grant of authority by the
1973 Constitution to issue warrants to "other responsible officers as may be authorized by law," does not mean that
the Constitution now requires the judge to personally examine the complainant and his witnesses in his
determination of probable cause for the issuance of warrants of arrest.
What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself
of the existence of probable cause for the issuance of a warrant of arrest and the judge is not required to personally
examine the complainant and his witnesses. Following established doctrine and procedure, he shall: (1) personally
evaluate the report and the supporting documents submitted by the fiscal regarding the existence of probable cause
and, on the basis thereof, issue a warrant of arrest; or (2) if on the basis thereof he finds no probable cause, he may
disregard the fiscal's report and require the submission of supporting affidavits of witnesses to aid him in arriving at
a conclusion as to the existence of probable cause.
24
It has not been shown that respondent judge has deviated from the prescribed procedure. Thus, with regard to the
issuance of the warrants of arrest, a finding of grave abuse of discretion amounting to lack or excess of jurisdiction
cannot be sustained.
PEOPLE vs DELA TORRE- YADAO
G.R. Nos. 162144-54 November 13, 2012
FACTS:
The combined forces of the Philippine National Police's Anti-Bank Robbery and Intelligence Task Group
(PNP ABRITG) killed 11 suspected members of the Kuratong Baleleng Gang 2 along Commonwealth
Avenue in Quezon City.
Subsequently, SPO2 Eduardo Delos Reyes of the Criminal Investigation Command told the press that it
was a summary execution, not a shoot-out between the police and those who were slain.
After investigation, the Deputy Ombudsman for Military Affairs absolved all the police officers involved,
including respondents
On review, however, the Office of the Ombudsman reversed the finding and filed charges of murder
against the police officers involved before the Sandiganbayan except that in the cases of respondents
Zubia, Acop, and Lacson, their liabilities were downgraded to mere accessory.
On arraignment, Lacson pleaded not guilty.
Upon respondents motion, the Sandiganbayan ordered the transfer of their cases to the Regional Trial Court (RTC)
of Quezon City on the ground that none of the principal accused had the rank of Chief Superintendent or higher.
Pending the resolution, Congress passed Republic Act (R.A.) 8249 that expanded the Sandiganbayans jurisdiction
by deleting the word "principal" from the phrase "principal accused" to apply to all pending cases where trial had not
begun. As a result of this new law, the Sandiganbayan opted to retain and try the Kuratong Baleleng murder cases.
Nonetheless, the Court ordered the transfer of the trial of the cases to the RTC of Quezon City since the amended
informations contained no allegations that respondents committed the offenses charged in relation to, or in the
discharge of, their official functions as required by R.A. 8249.
However, before arraignment, SPO2 Delos Reyes and the other prosecution witnesses recanted their
affidavits and some of the victims heirs also executed affidavits of desistance.
These prompted the respondents to file separate motions for the determination of probable cause
before the issuance of warrants of arrests.
RTC of QC ordered the provisional dismissal of the cases for lack of probable cause to hold the accused
for trial following the recantation of the principal prosecution witnesses and the desistance of the private
complainants.
TWO YEARS LATER, upon request of PNP Director to revive the cases against respondents, DOJ
Secretary constituted a panel of prosecutors to conduct the requested investigation.
Lacson invokes their constitutional right against double jeopardy; prays for TRO and writ of preliminary
injunction. Court denied such.
Panel of prosecutors found probable cause to hold Lacson and his co-accused liable as principals for 11
counts of murder, resulting in the filing of separate informations against them
Lacson filed petition for certiorari and a motion for judicial determination of probable cause.
CA rendered a Decision, granting Lacsons petition on the ground of double jeopardy since, although the
dismissal provisional, such dismissal became permanent two years after when they were not revived.
Upon the prosecutions appeal to this Court, the Court ruled that Lacson failed to prove compliance with
the requirements of Section 8, Rule 117 governing provisional dismissals.
2H 2016-2017 Criminal Procedure (Atty. Cheska Senga)
The Court thus set aside the CA Decision and directed the RTC of Quezon City to try the cases with
dispatch. Upon re-raffle, however, the cases went to Branch 81, which was now presided over by Judge
Yadao.
Thereafter, the parents of two of the victims submitted birth certificates showing that they were minors.
Apparently reacting to this, the prosecution amended the informations to show such minority and asked
respondent Executive Judge Ma. Natividad M. Dizon to recall the assignment of the cases to Branch 81
and re-raffle them to a family court. The request for recall was denied.
Judge Yadao issued an order, denying the prosecutions motion for re-raffle to a family court on the ground
that Section 5 of R.A. 8369 applied only to living minors. She also granted the motions for determination of
probable cause and dismissed the cases against the respondents since the affidavits of the
prosecution witnesses were inconsistent with those they submitted in the preliminary investigations before
the Ombudsman for the crime of robbery.
Prosecution filed motion to recuse or disqualify and an administrative complaint Judge Yadao
Judge Yadao issued an order, denying such.
ISSUE: Whether or not Judge Yadao gravely abused her discretion when she dismissed the criminal actions on the
ground of lack of probable cause and barred the presentation of additional evidence in support of the prosecutions
motion for reconsideration.
RULING:
PETITIONERS CONTENTION:
The prosecution claims that Judge Yadao gravely abused her discretion when she set the motions for
determination of probable cause for hearing, deferred the issuance of warrants of arrest, and allowed the
defense to mark its evidence and argue its case. The prosecution stresses that under Section 6, Rule 112
of the Rules of Court Judge Yadaos duty was to determine probable cause for the purpose of issuing the
arrest warrants solely on the basis of the investigating prosecutors resolution as well as the informations
and their supporting documents. And, if she had some doubts as to the existence of probable cause, the
rules required her to order the investigating prosecutor to present additional evidence to support the finding
of probable cause within five days from notice.
The general rule of course is that the judge is not required, when determining probable cause for the issuance of
warrants of arrests, to conduct a de novo hearing. The judge only needs to personally review the initial
determination of the prosecutor finding a probable cause to see if it is supported by substantial evidence. 13
But here, the prosecution conceded that their own witnesses tried to explain in their new affidavits the inconsistent
statements that they earlier submitted to the Office of the Ombudsman. Consequently, it was not unreasonable
for Judge Yadao, for the purpose of determining probable cause based on those affidavits, to hold a
hearing and examine the inconsistent statements and related documents that the witnesses themselves brought up
and were part of the records. Besides, she received no new evidence from the respondents. 14
The Court agrees with Judge Yadao that the above affidavits and reports, taken together with the other documents
of record, fail to establish probable cause against the respondents.
The prosecution points out that, rather than dismiss the criminal action outright, Judge Yadao should have ordered
the panel of prosecutors to present additional evidence pursuant to Section 6, Rule 112 of the Rules of Court which
provides:
25
 Sec. 6. When warrant of arrest may issue. (a) By the Regional Trial Court. Within ten (10)
days from the filing of the complaint or information, the judge shall personally evaluate the
resolution of the prosecutor and its supporting evidence. He may immediately dismiss the case if
the evidence on record clearly fails to establish probable cause. If he finds probable cause, he
shall issue a warrant of arrest, or a commitment order if the accused has already been arrested
pursuant to a warrant issued by the judge who conducted the preliminary investigation or when
the complaint or information was filed pursuant to section 7 of this Rule. In case of doubt on the
existence of probable cause, the judge may order the prosecutor to present additional evidence
within five (5) days from notice and the issue must be resolved by the court within thirty (30) days
from the filing of the complaint of information.
Section 6, Rule 112 of the Rules of Court gives the trial court three options upon the filing of the criminal
information: (1) dismiss the case if the evidence on record clearly failed to establish probable cause; (2)
issue a warrant of arrest if it finds probable cause; and (3) order the prosecutor to present additional
evidence within five days from notice in case of doubt as to the existence of probable cause. 24
But the option to order the prosecutor to present additional evidence is not mandatory. The courts first option under
the above is for it to "immediately dismiss the case if the evidence on record clearly fails to establish probable
cause." That is the situation here: the evidence on record clearly fails to establish probable cause against the
respondents.
It is only "in case of doubt on the existence of probable cause" that the judge may order the prosecutor to present
additional evidence within five days from notice. But that is not the case here. Discounting the affidavits of Ramos,
Medes, Enad, and Seno, nothing is left in the record that presents some doubtful probability that respondents
committed the crime charged. PNP Director Leandro Mendoza sought the revival of the cases in 2001, six years
after it happened. It would have been ridiculous to entertain the belief that the police could produce new witnesses
in the five days required of the prosecution by the rules.
In the absence of probable cause to indict respondents for the crime of multiple murder, they should be insulated
from the tribulations, expenses and anxiety of a public trial.25
JOSE U. PUA and BENJAMIN HANBEN U. PUA v CITIBANK, N. A.,
SUMMARY:
Pua filed before the RTC a complaint for declaration of nullity of contract and sums of money with damages for the
sale of securities which were not registered with the Securities and Exchange Commission.
Citibank aver that RTC did not have jurisdiction over the case because the Securities and Regulation Code provides
that the Securities and Exchange Commission had primary jurisdiction to
POSSIBLE CRIM PRO DOCTRINE: (napakatangential kasi talaga)
it is a fundamental rule in procedural law that jurisdiction is conferred by law; 34 it cannot be inferred but must be
explicitly stated therein. Thus, when Congress confers exclusive jurisdiction to a judicial or quasi-judicial entity over
certain matters [*such as the power to conduct preliminary investigation*] by law, this, absent any other indication to
the contrary, evinces its intent to exclude other bodies from exercising the same.
FACTS:
2H 2016-2017 Criminal Procedure (Atty. Cheska Senga)
On December 2, 2002, petitioners filed before the RTC a Complaint6 for declaration of nullity of contract and sums
of money with damages against respondent,7 docketed as Civil Case No. 19-1159.8 In their complaint, petitioners
alleged that they had been depositors of Citibank Binondo Branch (Citibank Binondo) since 1996. Sometime in
1999, Guada Ang, Citibank Binondos Branch Manager, invited Jose to a dinner party at the Manila Hotel where he
was introduced to several officers and employees of Citibank Hongkong Branch (Citibank Hongkong).9 A few
months after, Chingyee Yau (Yau), Vice-President of Citibank Hongkong, came to the Philippines to sell securities
to Jose. They averred that Yau required Jose to open an account with Citibank Hongkong as it is one of the
conditions for the sale of the aforementioned securities.10 After opening such account, Yau offered and sold to
petitioners numerous securities11 issued by various public limited companies established in Jersey, Channel Isands.
The offer, sale, and signing of the subscription agreements of said securities were all made and perfected at
Citibank Binondo in the presence of its officers and employees.12 Later on, petitioners discovered that the securities
sold to them were not registered with the Securities and Exchange Commission (SEC) and that the terms and
conditions covering the subscription were not likewise submitted to the SEC for evaluation, approval, and
registration.13
Asserting that respondents actions are in violation of Republic Act No.8799, entitled the "Securities Regulation
Code" (SRC), they assailed the validity of the subscription agreements and the terms and conditions thereof for
being contrary to law and/or public policy.14
For its part, respondent filed a motion to dismiss 15 alleging, inter alia, that petitioners complaint should be
dismissed outright for violation of the doctrine of primary jurisdiction. It pointed out that the merits of the case would
largely depend on the issue of whether or not there was a violation of the SRC, in particular, whether or not there
was a sale of unregistered securities. In this regard, respondent contended that the SRC conferred upon the SEC
jurisdiction to investigate compliance with its provisions and thus, petitioners complaint should be first filed with the
SEC and not directly before the RTC.16
Petitioners opposed17 respondents motion to dismiss, maintaining that the RTC has jurisdiction over their
complaint. They asserted that Section 63of the SRC expressly provides that the RTC has exclusive jurisdiction to
hear and decide all suits to recover damages pursuant to Sections 56 to 61 of the same law. 18
RTC RULING:
RTC denied respondents motion to dismiss. Petitioners complaint is for declaration of nullity of contract and sums
of money with damages and, as such, it has jurisdiction to hear and decide upon the case even if it involves the
alleged sale of securities.
THE CA RULING
The CA reversed and set aside the RTCs Orders and dismissed petitioners complaint for violation of the doctrine
of primary jurisdiction. Citing the case of Baviera v. Paglinawan26(Baviera), the CA opined that all complaints
involving violations of the SRC should be first filed before the SEC. 27
ISSUE
The essential issue in this case is whether or not petitioners action falls within the primary jurisdiction of the SEC.
RULING
The petition is meritorious.
At the outset, the Court observes that respondent erroneously relied on the Baviera ruling to support its position that
all complaints involving purported violations of the SRC should be first referred to the SEC. A careful reading of the
Baviera case would reveal that the same involves a criminal prosecution of a purported violator of the SRC, and not
a civil suit such as the case at bar. The pertinent portions of the Baviera ruling thus read:
A criminal charge for violation of the Securities Regulation Code is a specialized dispute. Hence, it must first
be referred to an administrative agency of special competence, i.e., the SEC. Under the doctrine of primary
26
 jurisdiction, courts will not determine a controversy involving a question within the jurisdiction of the
administrative tribunal, where the question demands the exercise of sound administrative discretion requiring
the specialized knowledge and expertise of said administrative tribunal to determine technical and intricate
matters of fact. The Securities Regulation Code is a special law. Its enforcement is particularly vested in the
SEC.
Hence, all complaints for any violation of the Code and its implementing rules and regulations should be filed
with the SEC. Where the complaint is criminal in nature, the SEC shall indorse the complaint to the DOJ for
preliminary investigation and prosecution as provided in Section 53.1 earlier quoted.
We thus agree with the Court of Appeals that petitioner committed a fatal procedural lapse when he filed his
criminal complaint directly with the DOJ. Verily, no grave abuse of discretion can be ascribed to the DOJ in
dismissing petitioners complaint.32 (Emphases and underscoring supplied)
Records show that petitioners complaint constitutes a civil suit for declaration of nullity of contract and sums of
money with damages, which stemmed from respondents alleged sale of unregistered securities, in violation of the
various provisions of the SRC and not a criminal case such as that involved in Baviera.
In this light, when the Court ruled in Baviera that "all complaints for any violation of the [SRC] x x x should be filed
with the SEC,"33 it should be construed as to apply only to criminal and not to civil suits such as petitioners
complaint.
Moreover, it is a fundamental rule in procedural law that jurisdiction is conferred by law;34 it cannot be inferred but
must be explicitly stated therein. Thus, when Congress confers exclusive jurisdiction to a judicial or quasi-judicial
entity over certain matters by law, this, absent any other indication to the contrary, evinces its intent to exclude other
bodies from exercising the same.
It is clear that cases falling under Section 57of the SRC, which pertain to civil liabilities arising from violations of the
requirements for offers to sell or the sale of securities, as well as other civil suits under Sections 56, 58, 59, 60, and
61 of the SRC shall be exclusively brought before the regional trial courts. It is a well-settled rule in statutory
construction that the term "shall" is a word of command, and one which has always or which must be given a
compulsory meaning, and it is generally imperative or mandatory. 35 Likewise, it is equally revelatory that no SRC
provision of similar import is found in its sections governing criminal suits; quite the contrary, the SRC states that
criminal cases arising from violations of its provisions should be first referred to the SEC.
Therefore, based on these considerations, it stands to reason that civil suits falling under the SRC are under the
exclusive original jurisdiction of the regional trial courts and hence, need not be first filed before the SEC, unlike
criminal cases wherein the latter body exercises primary jurisdiction.
All told, petitioners' filing of a civil suit against respondent for purported violations of the SRC was properly filed
directly before the RTC.
CRUZ VS AREOLA
FACTS:
On November 26, 1998, the Evaluation and Preliminary Investigation Bureau of the
Office of the Ombudsman issued a Resolution recommending the filing of an Information for
Estafa against Marilyn Carreon, an employee of the Land Transportation Office, based on the
complaint filed by herein complainants. The Office of the City Prosecutor found no cogent reason
2H 2016-2017 Criminal Procedure (Atty. Cheska Senga)
to reverse, modify, or alter the resolution of the Office of the Ombudsman and recommended that
the case be set for trial.Complainants filed the instant complaint charging both respondent Judge and his
BranchClerk of Court with ignorance of the law. Complainants take issue of the fact that althoughrespondent Judge
already issued a warrant of arrest, he still deferred its implementation to give way to a reinvestigation of the case on
motion of the accused. They believe that there is no
longer any reason why the respondent Judge should withhold the issuance of a warrant of arrest
considering that the Office of the City Prosecutor already made a finding that there exists
probable cause to indict the accused.
In their Joint Comment, respondent Judge manifests that the issuance of a warrant of
arrest is not a ministerial function of a judge as he is mandated to determine the existence of
probable cause before issuing a warrant. Respondent Branch Clerk of Court, on the other hand,
claims that it is a ministerial duty on her part to release duly signed orders, resolutions and
decisions of the presiding judge of her branch.
ISSUE:
Whether or not the respondent Judge erred in deferring the implementations of the warrant of arrest?
HELD:
NO. The 1987 Constitution provides that no warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce.
Preliminary investigation should be distinguished as to whether it is an investigation for
the determination of a sufficient ground for the filing of the information or it is an investigation for
the determination of a probable cause for the issuance of a warrant of arrest.
The first kind of preliminary investigation is executive in nature. It is part of the prosecutions job. The
second kind of preliminary investigation is judicial in nature and is lodged with the judge.
In making the required personal determination, a judge is not precluded from relying on
the evidence earlier gathered by responsible officers.
The extent of reliance depends on the circumstances of each case and is subject to the judges sound
discretion. It is not obligatory, but merely discretionary, upon the investigating judge to issue a warrant for the arrest
of the accused, even after having personally examined the complainant and his witnesses in the form of searching
questions and answers. For the determination of whether a probable cause exists and whether it is necessary to
arrest the accused in order not to frustrate
the ends of justice, is left to his sound judgment or discretion. It appears from the records that the challenged
Orders issued by the respondent Judge were not at all baseless. The respondent Judge merely exercised his sound
discretion in notimmediately issuing the warrant of arrest and in suspending further proceedings pending
reinvestigation of the case. On her part, respondent Branch Clerk of Court cannot be faulted for performing a
ministerial function, that is, releasing Orders duly signed by the respondent Judge.
RAMISCAL v Sandiganbayan
G.R. No. 169727-28. August 18,2006
Preliminary Investigation-Authorized officers
FACTS:
Ret Gen. Jose Ramiscal was charged with violating sec 3(e) of RA 3019 & for estafa through falsification
of a public document.
RAMISCALs CONTENTION: insists that, in finding probable cause against him for estafa through
falsification of public document and violation of Section 3(e) of R.A. 3019, the Sandiganbayan committed
grave abuse of discretion amounting to lack of jurisdiction, as it relied solely on the Memorandum of the
27
 investigation panel of Ombudsman Prosecutors. He posits that it behooved the anti-graft court to review
the Ombudsmans findings and scrutinize the evidence, the affidavits on record, including the transcript of
stenographic notes
ISSUE: WON the Ombudsman has the authority to conduct preliminary investigation and determine
probable cause?
RULING: Yes
RATIO:
the determination of probable cause during the preliminary investigation, or reinvestigation for that matter, is a
function that belongs to the Office of the Ombudsman. The Ombudsman is empowered to determine, in the
exercise of his discretion, whether probable cause exists, and to charge the person believed to have committed the
crime as defined by law
As a rule, courts should not interfere with the Ombudsmans investigatory power, exercised through the
Ombudsman Prosecutors, and the authority to determine the presence or absence of probable cause, except when
the finding is tainted with grave abuse of discretion amounting to lack or excess of jurisdiction
petitioner failed to establish that the Ombudsman committed grave abuse of discretion amounting to excess or lack
of jurisdiction in finding probable cause to charge him with violation of Section 3(e) of R.A. No. 3019 and for estafa
through falsification of a public document.
Okabe vs Guttierez
Cecilia Maruyama executed a fifteen-page affidavit-complaint 2 and filed the same with the Office of the City
Prosecutor of Pasay City, on December 29, 1999, charging Lorna Tanghal and petitioner Teresita Tanghal Okabe,
a.k.a. Shiela Okabe, with estafa. In her affidavit, Maruyama alleged, inter alia, that on December 11, 1998, she
entrusted 11,410,000 with the peso equivalent of P3,993,500 to the petitioner, who was engaged in the business
of door-to-door delivery from Japan to the Philippines. It was alleged that the petitioner failed to deliver the money
as agreed upon, and, at first, denied receiving the said amount but later returned only US$1,000 through Lorna
Tanghal.
During the preliminary investigation, Maruyama, submitted the affidavit of her witnesses and other documentary
evidence. After the requisite preliminary investigation, 2nd Assistant City Prosecutor Joselito J. Vibandor came out
with a resolution finding probable cause for estafa against the petitioner. Attached to the resolution, which was
submitted to the city prosecutor for approval, was the Information against the petitioner and Maruyama's affidavit-
complaint. It was then approved by the city prosecutor. Information against the petitioner was filed in Pasay RTC.
The trial court issued a warrant for the arrest of the petitioner with a recommended bond of P40,000. The petitioner
posted a personal bail bond in the said amount. The petitioner left the Philippines for Japan two times without the
trial courts permission. The trial court issued an Order setting the petitioners arraignment and pre-trial. On the
same day, the private prosecutor filed an urgent ex parte motion for the issuance of the hold departure order which
was approved by the court. For her part, the petitioner filed a verified motion for judicial determination of probable
cause and to defer proceedings/arraignment, alleging that the only documents appended to the Information
submitted by the investigating prosecutor were respondent Maruyama's affidavit-complaint for estafa and the
resolution of the investigating prosecutor; the affidavits of the witnesses of the complainant, the respondents
counter-affidavit and the other evidence adduced by the parties were not attached thereto. The petitioner further
alleged that the documents submitted by the investigating prosecutor were not enough on which the trial court could
base a finding of probable cause for estafa against her. She also filed a Very Urgent Motion To Lift/Recall Hold
Departure Order and/or allow her to regularly travel to Japan alleging that she is a widow and the legitimate mother
of three minors who are permanently residing in Japan and that her only source of income and livelihood is door-to-
2H 2016-2017 Criminal Procedure (Atty. Cheska Senga)
door delivery from Japan to the Philippines and vice versa. he petitioner filed a manifestation objecting to her
arraignment prior to the resolution of her pending motions. The court denied the petitioners motions on the
following grounds:
(a) Based on its personal examination and consideration of the Information, the affidavit-complaint of
respondent Maruyama and the resolution of the investigating prosecutor duly approved by the city prosecutor, the
court found probable cause for the petitioners arrest. Since the petitioners motion for a determination of probable
cause was made after the court had already found probable cause and issued a warrant for the petitioners arrest,
and after the latter filed a personal bail bond for her provisional liberty, such motion was a mere surplusage;
(b) When the petitioner posted a personal bail bond for her provisional liberty, she thereby waived her right to
question the courts finding of the existence of probable cause for her arrest and submitted herself to the jurisdiction
of the court, more so when she filed the motion for the lifting of the hold departure order the court issued, and the
motion to defer the proceedings and her arraignment; and
(c) The hold departure order issued by the trial court was in accord with Supreme Court Circular No. 39-97
dated June 19, 1997, as well as the ruling of this Court in Manotoc, Jr. v. Court of Appeals.
ISSUE: WON there was error in determining existence of probable cause when the trial court merely relied on the
resolution of the investigating prosecutor
HELD: YES. before the RTC judge issues a warrant of arrest under Section 6, Rule 112 of the Rules of Court 42 in
relation to Section 2, Article III of the 1987 Constitution, the judge must make a personal determination of the
existence or non-existence of probable cause for the arrest of the accused. The duty to make such determination is
personal and exclusive to the issuing judge. He cannot abdicate his duty and rely on the certification of the
investigating prosecutor.
Under Section 1, Rule 112 of the Rules on Criminal Procedure, the investigating prosecutor is tasked to determine
whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the
respondent therein is probably guilty thereof and should be held for trial. A preliminary investigation is for the
purpose of securing the innocent against hasty, malicious and oppressive prosecution, and to protect him from an
open and public accusation of a crime, from the trouble, expense and anxiety of a public trial. In determining the
existence or non-existence of probable cause for the arrest of the accused, the judge should not rely solely on the
said report.
SIDE NOTE:
It is not required that the complete or entire records of the case during the preliminary investigation be submitted to
and examined by the judge. What is required, rather, is that the judge must have sufficient supporting documents
upon which to make his independent judgment or, at the very least, upon which to verify the findings of the
prosecutor as to the existence of probable cause. The rulings of this Court are now embedded in Section 8(a), Rule
112 of the Revised Rules on Criminal Procedure which provides that an Information or complaint filed in court shall
be supported by the affidavits and counter-affidavits of the parties and their witnesses, together with the other
supporting evidence of the resolution
LEVISTE vs. ALAMEDA
G.R. No. 182677, August 3, 2010
CARPIO MORALES, J.:
Jose Antonio C. Leviste was, by Information charged with homicide for the death of Rafael de las Alas before the
Regional Trial Court of Makati City by Judge Elmo Alameda who forthwith issued a commitment order against
petitioner who was placed under police custody while confined at the Makati Medical Center.
28
The private complainants-heirs of De las Alas prayed for the deferment of the proceedings to allow the public
prosecutor to re-examine the evidence on record or to conduct a reinvestigation to determine the proper offense.
The RTC thereafter issued an (1) Order deferring petitioners arraignment and allowing the prosecution to conduct a
reinvestigation to determine the proper offense and (2) Order denying reconsideration of the first order.
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, or alternatively, to grant him time to comment on the prosecutors recommendation and thereafter
set a hearing for the judicial determination of probable cause. Petitioner also separately moved for the inhibition of
Judge Alameda with prayer to defer action on the admission of the Amended Information.
The trial court nonetheless issued the other assailed order, admitting the Amended Information for murder and
directed the issuance of a warrant of arrest.
Petitioner assailed these before the Court of Appeals.
The appellate court dismissed petitioners petition, hence, his present petition, arguing that: PRIVATE
RESPONDENT (heirs of de las Alas) DID NOT HAVE THE RIGHT TO CAUSE THE REINVESTIGATION OF THE
CRIMINAL CASE BELOW WHEN THE CRIMINAL INFORMATION HAD ALREADY BEEN FILED WITH THE
LOWER COURT.
The trial court, absent any writ of preliminary injunction from the appellate court, went on to try petitioner under the
Amended Information. the trial court found petitioner guilty of homicide. From the Decision, petitioner filed an appeal
to the appellate court.
CONTENTION OF THE RESPONDENTS. The Office of the Solicitor General (OSG) later argued that the present
petition had been rendered moot since the presentation of evidence, wherein petitioner actively participated, had
been concluded.
CONTENTION OF PETITIONER. In his first assignment of error, petitioner posits that the prosecution has no right
under the Rules to seek from the trial court an investigation or reevaluation of the case except through a petition for
review before the Department of Justice (DOJ). In cases when an accused is arrested without a warrant, petitioner
contends that the remedy of preliminary investigation belongs only to the accused.
ISSUE: (1) Whether or not petitioner has been precluded from questioning the illegal arrest of the lack of or irregular
preliminary investigation. / Whether or not there has been the petition of the accused has been rendered moot by
his active participation in the trial.
ISSUE (2): Whether or not the remedy of preliminary investigation belongs only to the accused, in cases when an
accused is arrested without a warrant
RULING (1): Waiver on the part of the accused must be distinguished from mootness of the petition, for in the
present case, petitioner did not, by his active participation in the trial, waive his stated objections.
2H 2016-2017 Criminal Procedure (Atty. Cheska Senga)
By applying for bail, petitioner did not waive his right to challenge the regularity of the reinvestigation of the charge
against him, the validity of the admission of the Amended Information, and the legality of his arrest under the
Amended Information, as he vigorously raised them prior to his arraignment.
The principle that the accused is precluded after arraignment from questioning the illegal arrest or the lack of or
irregular preliminary investigation applies "only if he voluntarily enters his plea and participates during trial, without
previously invoking his objections thereto." There must be clear and convincing proof that petitioner had an actual
intention to relinquish his right to question the existence of probable cause. When the only proof of intention rests
on what a party does, his act should be so manifestly consistent with, and indicative of, an intent to voluntarily and
unequivocally relinquish the particular right that no other explanation of his conduct is possible.
The petition is now moot, however, in view of the trial courts rendition of judgment.
The judgment convicting petitioner of homicide under the Amended Information for murder operates as a
supervening event that mooted the present petition. Assuming that there is ground to annul the finding of probable
cause for murder, there is no practical use or value in abrogating the concluded proceedings and retrying the case
under the original Information for homicide just to arrive, more likely or even definitely, at the same conviction of
homicide. Mootness would have also set in had petitioner been convicted of murder, for proof beyond reasonable
doubt, which is much higher than probable cause, would have been established in that instance.
RULING (2): The contention lacks merit.
Section 6, Rule 112 of the Rules of Court reads:
When a person is lawfully arrested without a warrant involving an offense which requires a preliminary investigation,
the complaint or information may be filed by a prosecutor without need of such investigation provided an inquest
has been conducted in accordance with existing rules. In the absence or unavailability of an inquest prosecutor, the
complaint may be filed by the offended party or a peace officer directly with the proper court on the basis of the
affidavit of the offended party or arresting officer or person.
Before the complaint or information is filed, the person arrested may ask for a preliminary investigation in
accordance with this Rule, but he must sign a waiver of the provisions of Article 125 of the Revised Penal Code, as
amended, in the presence of his counsel. Notwithstanding the waiver, he may apply for bail and the investigation
must be terminated within fifteen (15) days from its inception.
After the filing of the complaint or information in court without a preliminary investigation, the accused may, within
five (5) days from the time he learns of its filing, ask for a preliminary investigation with the same right to adduce
evidence in his defense as provided in this Rule.
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
29
purpose of determining whether said persons should remain under custody and correspondingly be charged in
court.
BEFORE THE FILING OF COMPLAINT OR INFORMATION IN COURT, the private complainant may proceed in
coordinating with the arresting officer and the inquest officer during the latters conduct of inquest. Meanwhile, the
arrested person has the option to avail of a 15-day preliminary investigation, provided he duly signs a waiver of any
objection against delay in his delivery to the proper judicial authorities under Article 125 of the Revised Penal
Code. For obvious reasons, this remedy is not available to the private complainant since he cannot waive what he
does not have. The benefit of the provisions of Article 125, which requires the filing of a complaint or information
with the proper judicial authorities within the applicable period,[32] belongs to the arrested person.
Contrary to petitioners position that private complainant should have appealed to the DOJ Secretary, such
remedy is not immediately available in cases subject of inquest.
The rule referred to is the 2000 National Prosecution Service Rule on Appeal, 36 Section 1 of which provides that the
Rule shall "apply to appeals from resolutions x x x in cases subject of preliminary investigation/ reinvestigation." In
cases subject of inquest, therefore, the private party should first avail of a preliminary investigation or
reinvestigation, if any, before elevating the matter to the DOJ Secretary.
In case the inquest proceedings yield no probable cause, the private complainant may pursue the case
through the regular course of a preliminary investigation.
ONCE A COMPLAINT OR INFORMATION IS FILED IN COURT, the rules yet provide the accused with another
opportunity to ask for a preliminary investigation within five days from the time he learns of its filing. The Rules of
Court and the New Rules on Inquest are silent, however, on whether the private complainant could invoke, as
respondent heirs of the victim did in the present case, a similar right to ask for a reinvestigation.
The Court holds that the private complainant can move for reinvestigation, subject to and in light of the ensuing
disquisition.
All criminal actions commenced by a complaint or information shall be prosecuted under the direction and control of
the public prosecutor.[37] The private complainant in a criminal case is merely a witness and not a party to the case
and cannot, by himself, ask for the reinvestigation of the case after the information had been filed in court, the
proper party for that being the public prosecutor who has the control of the prosecution of the case. [38] Thus, in
cases where the private complainant is allowed to intervene by counsel in the criminal action,[39] and is granted the
authority to prosecute,[40] the private complainant, by counsel and with the conformity of the public prosecutor, can
file a motion for reinvestigation.
In fact, the DOJ instructs that before the arraignment of the accused, trial prosecutors must examine the Information
vis--vis the resolution of the investigating prosecutor in order to make the necessary corrections or revisions and to
ensure that the information is sufficient in form and substance.
The standing principle is that once an information is filed in court, any remedial measure such as a reinvestigation
must be addressed to the sound discretion of the court.
2H 2016-2017 Criminal Procedure (Atty. Cheska Senga)
The question to be resolved is whether the amendment of the Information from homicide to murder is considered a
substantial amendment, which would make it not just a right but a duty of the prosecution to ask for a preliminary
investigation.
The Court answers in the affirmative.
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.
Petitioner proceeds to discuss at length evidentiary matters, arguing that no circumstances exist that would qualify
the crime from homicide to murder.
WHEREFORE, the petition is DENIED. The assailed Decision and Resolution of the Court of Appeals are
AFFIRMED.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MARIO SERZO, JR., accused-appellant.
G.R. No. 118435. June 20, 1997
PANGANIBAN, J.
FACTS:
Appellant Mario Serzo was convicted of murder by the lower court for the stabbing/killing of Alfredo
Casabal after the latter rescued minors being held by the former.
Pre-trial was waived and the case proceeded to trial on the merits.
The accused alleged that he was denied the right to counsel. During the arraignment he appeared without
counsel,so the court appointed a counsel de officio. Thereafter, he moved that the arraignment be reset so he can
engage the services of his own counsel however, during the arraignment, he still appeared without one. The
arraignment proceeded with him being assisted by the counsel de officio but appellant doesnt want to cooperate
with the counsel de officio.
The trial court convicted appellant on the basis of the evidence presented by the prosecution. The trial
court noted that appellant simply refused to secure the services of a counsel de parte and to present evidence in his
defense despite ample opportunity accorded to him.
Not satisfied with the trial courts Decision, appellant through Counsel Carmelo L. Arcilla appealed to this
Court.
ISSUE:
30
 W/O the accused was denied of his right to counsel.
HELD:
No. The right of an accused to counsel is guaranteed by the Constitution, the supreme law of the land.
This right is granted to minimize the imbalance in the adversarial system where the accused is pitted against the
awesome prosecutory machinery of the state.
The right covers the period beginning from custodial investigation, well into the rendition of judgment, and even on
appeal. Article III of the 1987 Constitution provides this right to an accused not only during trial but even before an
information is filed. It provides:
SEC. 12. (1) Any person under investigation for the commission of an offense shall have the right to be informed of
his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person
cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in
writing and in the presence of counsel.
SEC. 14 (1) No person shall be held to answer for a criminal offense without due process of law.
(2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy
the right to be heard by himself and counsel, x x x.
With these precepts as springboard, the Rules of Court grants an accused the right to counsel under the following
provisions, viz.:
RULE 112
PRELIMINARY INVESTIGATION
xxxxxxxxx
SEC. 7. When accused lawfully arrested without warrant.--x x x
However, before the filing of such complaint or information, the person arrested may ask for a preliminary
investigation by a proper officer in accordance with this Rule, but he must sign a waiver of the provisions of Article
125 of the Revised Penal Code, as amended, with the assistance of a lawyer and in case of non-availability of a
lawyer, a responsible person of his choice. x x x.
The Solicitor General, in his eleven-page Brief, rebuts this, arguing that appellants actions during the trial showed
instead a lackadaisical stance on his own defense.
Appellant had been given ample time to secure the services of a counsel de parte, but his subsequent appearances
in court without such counsel and his act of allowing this situation to continue until the presentation of his evidence
betrays his lack of intention to do so. It even appears that he was merely delaying his own presentation of evidence
on purpose to the prejudice of the offended party, the trial court and the orderly administration of justice.
Furthermore, appellant did not demonstrate in what way the services of his counsels de oficio were unsatisfactory.
He did not cite any instance substantiating his claim that he was not effectively represented. In short, he was
afforded a chance to be heard by counsel of his own choice, but by his own neglect or mischief, he effectively
waived such right. It taxes the mind to think that, almost two years since appellant first invoked his right to be
represented by counsel de parte, he still could not find one who would suit his needs and desires. Neither did he
cooperate with his court-named lawyers.
The facts of this case do not constitute a deprivation of appellants constitutional right to counsel because he was
adequately represented by three court-appointed lawyers: Atty. Lina-ac, Atty. Antonano and Atty. Garcia. Courts are
not required to await indefinitely the pleasure and convenience of the accused as they are also mandated to
promote the speedy and orderly administration of justice. Nor should they countenance such an obvious trifling with
the rules. Indeed, public policy requires that the trial continue as scheduled, considering that appellant was
adequately represented by counsels who were not shown to be negligent, incompetent or otherwise unable to
represent him.
WHEREFORE, the assailed Decision is hereby AFFIRMED, but the award of moral damages is DELETED. Instead,
appellant is ORDERED TO PAY the amount of P50,000.00 as civil indemnity and actual damages of P2,000.00 as
burial expenses.
2H 2016-2017 Criminal Procedure (Atty. Cheska Senga)
Mangila vs. Pangilinan
G.R. No. 160739, July 17, 2013
BERSAMIN, J.:
Restraint that is lawful and pursuant to a court process cannot be inquired into through habeas corpus.
Facts:
On June 16, 2003, seven criminal complaints charging Anita Mangila and four others with
syndicated estafa in violation of Article 315 of the Revised Penal Code, in relation to Presidential Decree
No. 1689, and with violations of Section 7(b) of Republic Act No. 8042 (Migrant Workers and Overseas
Filipino Act of 1995). Case was filed in the MTCC in Puerto Princesa City.
The complaints arose from the recruiting and promising of employment by Mangila and the others to the
private complainants as overseas contract workers in Toronto, Canada, and from the collection of visa
processing fees, membership fees and on-line application fees from the private complainants without
lawful authority from the Philippine Overseas Employment Administration (POEA).
On the following day, Judge Heriberto M. Pangilinan, conducted a preliminary investigation on the
complaints. Judge Pangilinan issued a warrant for the arrest of Mangila and her cohorts without bail.
Mangila was arrested on June 18, 2003 and detained at the headquarters on Taft Avenue, Manila of the
National Bureau of Investigation (NBI).
Petitioners claims
Claiming that Judge Pangilinan did not have the authority to conduct the preliminary investigation; that the
preliminary investigation he conducted was not yet completed when he issued the warrant of arrest; and
that the issuance of the warrant of arrest was without sufficient justification or without a prior finding of
probable cause
Mangila filed in the Court of Appeals (CA)a petition for habeas corpusto obtain her release from detention.
Her petition averred that the remedy of habeas corpus was available to her because she could no longer
file a motion to quash or a motion to recall the warrant of arrest considering that Judge Pangilinan had
already forwarded the entire records of the case to the City Prosecutor who had no authority to lift or recall
the warrant.
CA Resolution
CA denied the petition for habeas corpus for its lack of merit, explaining:cralavvonlinelawlibrary
As a general rule, a writ of habeas corpus will not be granted where relief may be had or could have been
procured by resort to another general remedy. As pointed out inLuna vs. Plaza, if petitioner is detained by
virtue of a warrant of arrest, which is allegedly invalid, the remedy available to her is not a petition
for habeas corpus but a petition to quash the warrant of arrest or a petition for a reinvestigation of the case
by the Municipal Judge or by the Provincial Fiscal.
31
 Section 5, Rule 112 of the Revised Rules of Criminal Procedure provides that the Municipal Judge who
conducted the preliminary investigation shall transmit his resolution, together with the record of the case,
including the warrant of arrest, to the Provincial Prosecutor, who shall review the same and order the
release of an accused who is detained if no probable cause is found against him. Thus, the proper remedy
available to petitioner is for her to file with the Provincial Prosecutor a motion to be released from detention
on the grounds alleged in the instant petition.
Relief: petition for review on certiorari.
Issue:
Did the CA err in ruling that habeas corpus was not the proper remedy to obtain the release of Mangila from
detention?
Ruling:
The petition for review lacks merit.
The high prerogative writ of habeas corpus has been devised as a speedy and effective remedy to relieve
persons from unlawful restraint.
The inquiry in a habeas corpusproceeding is addressed to the question of whether the
proceedings and the assailed order are, for any reason, null and void. The writ is not ordinarily
granted where the law provides for other remedies in the regular course, and in the absence of
exceptional circumstances. Moreover, habeas corpusshould not be granted in advance of trial.
The orderly course of trial must be pursued and the usual remedies exhausted before resorting to
the writ where exceptional circumstances are extant.
In another case, it was held that habeas corpus cannot be issued as a writ of error or as a means of
reviewing errors of law and irregularities not involving the questions of jurisdiction occurring
during the course of the trial, subject to the caveat that constitutional safeguards of human life and
liberty must be preserved, and not destroyed.
It has also been held that where restraint is under legal process, mere errors and irregularities,
which do not render the proceedings void, are not grounds for relief by habeas corpus because in
such cases, the restraint is not illegal.
Habeas corpus is a summary remedy. It is analogous to a proceeding in rem when instituted for the sole
purpose of having the person of restraint presented before the judge in order that the cause of his
detention may be inquired into and his statements final.
The writ of habeas corpus does not act upon the prisoner who seeks relief, but upon the person who holds
him in what is alleged to be the unlawful authority. Hence, the only parties before the court are the
petitioner (prisoner) and the person holding the petitioner in custody, and the only question to be resolved
is whether the custodian has authority to deprive the petitioner of his liberty.
The object of the writ of habeas corpusis to inquire into the legality of the detention, and, if the detention is
found to be illegal, to require the release of the detainee.
There is no question that when the criminal complaints were lodged against Mangila and her cohorts on
June 16, 2003, Judge Pangilinan, as the Presiding Judge of the MTCC, was empowered to conduct
preliminary investigations involving all crimes cognizable by the proper court in their respective territorial
jurisdictions.
His authority was expressly provided in Section 2, Rule 112 of the Revised Rules of Criminal Procedure, to
wit:cralavvonlinelawlibrary
2H 2016-2017 Criminal Procedure (Atty. Cheska Senga)
Section 2. Officers authorized to conduct preliminary investigations. The following may conduct preliminary
investigations:cralavvonlinelawlibrary
(a) Provincial or City Prosecutors and their assistants;chanroblesvirtualawlibrary
(b) Judges of the Municipal Trial Courts and Municipal Circuit Trial Courts;
(c) National and Regional State Prosecutors; and
(d) Other officers as may be authorized by law.
Their authority to conduct preliminary investigations shall include all crimes cognizable by the proper court
in their respective territorial jurisdictions. (2a)
Under Section 6(b) of Rule 112of the Revised Rules of Criminal Procedure, the investigating judge could
issue a warrant of arrest during the preliminary investigation even without awaiting its conclusion should he
find after an examination in writing and under oath of the complainant and the witnesses in the form of
searching questions and answers that a probable cause existed, and that there was a necessity of placing
the respondent under immediate custody in order not to frustrate the ends of justice.
In the context of this rule, Judge Pangilinan issued the warrant of arrest against Mangila and her cohorts.
Consequently, the CA properly denied Mangilas petition for habeas corpusbecause she had been arrested
and detained by virtue of the warrant issued for her arrest by Judge Pangilinan, a judicial officer undeniably
possessing the legal authority to do so.
It was clear that under Section 5,16 Rule 112 of the Revised Rules of Criminal Procedure, the resolution of
the investigating judge was not final but was still subject to the review by the public prosecutor who had the
power to order the release of the detainee if no probable cause should be ultimately found against her.
In the context of the rule, Mangila had no need to seek the issuance of the writ of habeas corpus to secure
her release from detention. Her proper recourse was to bring the supposed irregularities attending the
conduct of the preliminary investigation and the issuance of the warrant for her arrest to the attention of the
City Prosecutor, who had been meanwhile given the most direct access to the entire records of the case,
including the warrant of arrest, following Judge Pangilinans transmittal of them to the City Prosecutor for
appropriate action.
Ampatuan vs. Macaraig
FACTS:
PETITIONERS VERSION of the Facts:
Petitioner alleged in her petition that her husband PO1 Ampatuan was assigned at
Sultan Kudarat Municipal Police Station. On 14 April 2008, he was asked by his Chief of Police to report to the
Provincial Director of Shariff Kabunsuan, Superintendent Esmael Pua Ali (Supt. Ali). The latter brought PO1
Ampatuan to Superintendent Piang Adam, Provincial Director of the Philippine National Police (PNP) Maguindanao.
PO1 Ampatuan was directed to stay at the Police Provincial Office of Maguindanao without being informed of the
cause of his restraint.
32

The next day, 15 April 2008, PO1 Ampatuan was brought to the General Santos City Airport and was
made to board a Philippine Airlines plane bound for Manila. Upon landing at the Manila Domestic Airport, PO1
Ampatuan was turned over to policemen of Manila and brought to Manila Mayor Alfredo Lim by Police Director
Geary Barias and General Roberto Rosales. A press briefing was then conducted where it was announced that
PO1 Ampatuan was arrested for the killing of two Commission on Elections (COMELEC) Officials. He was then
detained at the Police Jail in United Nations Avenue, Manila.
Thereafter, PO1 Ampatuan was brought to inquest Prosecutor Renato Gonzaga of the Office of the City
Prosecutor of Manila due to the alleged murder of Atty. Alioden D. Dalaig, head of the Law Department of the
COMELEC. On 20 April 2008, PO1 Ampatuan was turned-over to the Regional Headquarters Support Group in
Camp Bagong Diwa, Taguig City.
Petitioner continues that on 21 April 2008, Chief Inquest Prosecutor Nelson Salva ordered the release for
further investigation of PO1 Ampatuan. The Order was approved by the City Prosecutor of Manila. But Police
Senior Superintendent Co Yee Co, Jr., and Police Chief Inspector Agapito Quimson refused to release PO1
Ampatuan. This prompted Petitioner to file the petition for writ of habeas corpus in the RTC of Manila, Branch 37.
RESPONDENTS VERSION of the facts:
Private respondents narrated that at around 7:08 oclock in the evening of 10 November 2007, a sixty-four-
year-old man, later identified as Atty. Alioden D. Dalaig, Head of the COMELEC Legal Department, was killed at the
corner of M. H. Del Pilar and Pedro Gil Streets, Ermita, Manila.
Investigation conducted by the Manila Police District (MPD) Homicide Section yielded the identity of the
male perpetrator as PO1 Ampatuan. Consequently, PO1 Ampatuan was commanded to the MPD District Director
for proper disposition. Likewise, inquest proceedings were conducted by the Manila Prosecutors Office.
On 18 April 2008, Police Senior Superintendent Atty. Clarence V. Guinto, rendered his Pre-Charge
Evaluation Report against PO1 Ampatuan, finding probable cause to charge PO1 Ampatuan with Grave Misconduct
(Murder) and recommending that said PO1 Ampatuan be subjected to summary hearing. A charge sheet for Grave
Misconduct was executed against PO1 Ampatuan.
Also, through a Memorandum dated 18 April 2008, Police Director General Avelino I. Razon, Jr. directed
the Regional Director of the National Capital Regional Police Office (NCRPO) to place PO1 Ampatuan under
restrictive custody. Respondent Police Director Geary L. Barias requested for the creation of the Summary
Hearing Board to hear the case of PO1 Ampatuan.
Special Order No. 921 was issued by Police Director Edgardo E. Acua, placing PO1 Ampatuan under
restrictive custody of the Regional Director, NCRPO, effective 19 April 2008.
The City Prosecutor of Manila recommended that the case against PO1 Ampatuan be set for further
investigation and that the latter be released from custody unless he is being held for other charges/legal grounds.
Armed with the 21 April 2008 recommendation ofmend the Manila Citys Prosecution Office, petitioner, the
wife of PO1 Ampatuan, filed a Petition for the Issuance of a Writ of Habeas Corpus before the RTC of Manila on 22
April 2008.
On 24 April 2008, finding the petition to be sufficient in form and substance, respondent Judge Virgilio V.
Macaraig ordered the issuance of a writ of habeas corpus commanding therein respondents to produce the
2H 2016-2017 Criminal Procedure (Atty. Cheska Senga)
body of PO1 Ampatuan and directing said respondents to show cause why they are withholding or restraining the
liberty of PO1 Ampatuan.
The function of habeas corpus is to determine the legality of ones detention, meaning, if there is
sufficient cause for deprivation or confinement and if there is none to discharge him at once. For habeas
corpus to issue, the restraint of liberty must be in the nature of illegal and involuntary deprivation of
freedom which must be actual and effective, not nominal or moral.
RTCs ruling:
Granting arguendo that the administrative case was ante-dated, the Court cannot simply
ignore the filing of an administrative case filed against PO1 Ampatuan. It cannot be denied that
the PNP has its own administrative disciplinary mechanism and as clearly pointed out by the
respondents, the Chief PNP is authorized to place PO1 Ampatuan under restrictive custody
pursuant to Section 52, Par. 4 of R.A. 8551.
The filing of the administrative case against PO1 Ampatuan is a process done by
the PNP and this Court has no authority to order the release of the subject police officer.
Lastly, anent the contention of the petitioner that the letter resignation of PO1 Ampatuan has
rendered the administrative case moot and academic, the same could not be accepted by this
Court. It must be stressed that the resignation has not been acted by the appropriate police
officials of the PNP, and that the administrative case was filed while PO1 Ampatuan is still in the
active status of the PNP.
The petition for habeas corpus is hereby DISMISSED
ISSUE:
1) Whether or not denial of the RTC of the petition for writ of habeas corpus by petitioner was proper
RULING: Yes.
A writ of habeas corpus applies to all cases of illegal confinement or detention by which any person is
deprived of his liberty. he objective of the writ is to determine whether the confinement or detention is valid or lawful.
If it is, the writ cannot be issued. What is to be inquired into is the legality of a person's detention as of, at the
earliest, the filing of the application for the writ of habeas corpus, for even if the detention is at its inception illegal, it
may, by reason of some supervening events, such as the instances mentioned in Section 4 of Rule 102, be no
longer illegal at the time of the filing of the application.
Plainly stated, the writ obtains immediate relief for those who have been illegally confined or imprisoned
without sufficient cause. The writ, however, should not be issued when the custody over the person is by virtue of a
judicial process or a valid judgment. The writ of habeas corpus was devised and exists as a speedy and effectual
remedy to relieve persons from unlawful restraint, and as the best and only sufficient defense of personal freedom.
A prime specification of an application for a writ of habeas corpus is restraint of liberty. The essential object and
purpose of the writ of habeas corpus is to inquire into all manner of involuntary restraint as distinguished from
voluntary, and to relieve a person therefrom if such restraint is illegal.
33
 The trial court correctly denied the subject petition. Respondents maintain that while the Office of the City
Prosecutor of Manila had recommended that PO1 Ampatuan be released from custody, said recommendation was
made only insofar as the criminal action for murder that was filed with the prosecution office is concerned and is
without prejudice to other legal grounds for which he may be held under custody. In the instant case, PO1
Ampatuan is also facing administrative charges for Grave Misconduct.

They cited the case of Manalo v. Calderon, where the Court held that a petition for habeas corpus will be
given due course only if it shows that petitioner is being detained or restrained of his liberty unlawfully, but a
restrictive custody and monitoring of movements or whereabouts of police officers under investigation by their
superiors is not a form of illegal detention or restraint of liberty. In this case, PO1 Ampatuan has been placed under
Restrictive Custody. Republic Act No. 6975 (also known as the Department of Interior and Local Government Act of
1990), as amended by Republic Act No. 8551 (also known as the Philippine National Police Reform and
Reorganization Act of 1998), clearly provides that members of the police force are subject to the administrative
disciplinary machinery of the PNP. Section 41(b) of the said law enumerates the disciplinary actions, including
restrictive custody that may be imposed by duly designated supervisors and equivalent officers of the PNP as a
matter of internal discipline. The pertinent provision of Republic Act No. 8551 reads:

Sec. 52 x x x.

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4. The Chief of the PNP shall have the power to impose the disciplinary punishment of dismissal from
the service; suspension or forfeiture of salary; or any combination thereof for a period not exceeding one hundred
eighty (180) days. Provided, further, That the Chief of the PNP shall have the authority to place police
personnel under restrictive custody during the pendency of a grave administrative case filed against him or
even after the filing of a criminal complaint, grave in nature, against such police personnel.

Given that PO1 Ampatuan has been placed under restrictive custody, such constitutes a valid argument for
his continued detention. This Court has held that a restrictive custody and monitoring of movements or whereabouts
of police officers under investigation by their superiors is not a form of illegal detention or restraint of liberty.

Restrictive custody is, at best, nominal restraint which is beyond the ambit of habeas corpus. It is neither
actual nor effective restraint that would call for the grant of the remedy prayed for. It is a permissible precautionary
measure to assure the PNP authorities that the police officers concerned are always accounted for. Since the basis
of PO1 Ampatuans restrictive custody is the administrative case filed against him, his remedy is within such
administrative process. petitioner is unable to discharge the burden of showing that she is entitled to the issuance of
the writ prayed for in behalf of her husband, PO1 Ampatuan. The petition fails to show on its face that the latter is
unlawfully deprived of his liberty guaranteed and enshrined in the Constitution.

2H 2016-2017 Criminal Procedure (Atty. Cheska Senga) 34