SECOND DIVISION

January 11, 2016

G.R. No. 209330

SECRETARY LEILA DE LIMA, ASSISTANT STATE PROSECUTOR STEWART ALLAN A. MARIANO, ASSISTANT STATE
PROSECUTOR VIMAR M. BARCELLANO and ASSISTANT STATE PROSECUTOR GERARD E. GAERLAN, Petitioners,
vs.
MARIO JOEL T. REYES, Respondent.

DECISION

LEONEN, J.:

The Secretary of Justice has the discretion, upon motion or motu proprio, to act on any matter that may cause a probable
miscarriage of justice in the conduct of a preliminary investigation. This action may include, but is not limited to, the
conduct of a reinvestigation. Furthermore, a petition for certiorari under Rule 65 questioning the regularity of preliminary
investigation becomes moot after the trial court completes its determination of probable cause and issues a warrant of
arrest.

This Petition for Review on Certiorari assails the Decision 1 dated March 19, 2013 and Resolution 2 dated September 27,
2013 of the Court of Appeals, which rendered null and void Department of Justice Order No. 710 3 issued by the Secretary
of Justice.4 The Department Order created a second panel of prosecutors to conduct a reinvestigation of a murder case in
view of the first panel of prosecutors' failure to admit the complainant's additional evidence.

Dr. Gerardo Ortega (Dr. Ortega), also known as "Doc Gerry," was a veterinarian and anchor of several radio shows in
Palawan. On January 24, 2011, at around 10:30 am, he was shot dead inside the Baguio Wagwagan Ukay-ukay in San Pedro,
Puerto Princesa City, Palawan.5 After a brief chase with police officers, Marlon B. Recamata was arrested. On the same day,
he made an extrajudicial confession admitting that he shot Dr. Ortega. He also implicated Rodolfo "Bumar" O. Edrad
(Edrad), Dennis C. Aranas, and Armando "Salbakotah" R. Noel, Jr.6

On February 6, 2011, Edrad executed a Sinumpaang Salaysay before the Counter-Terrorism Division of the National Bureau
of Investigation where he alleged that it was former Palawan Governor Mario Joel T. Reyes (former Governor Reyes) who
ordered the killing of Dr. Ortega.7

On February 7, 2011, Secretary of Justice Leila De Lima issued Department Order No: 0918 creating a special panel of
prosecutors (First Panel) to conduct preliminary investigation. The First Panel was composed of Senior Assistant
Prosecutor Edwin S. Dayog, Assistant State Prosecutor Bryan Jacinto S. Cacha, and Assistant State Prosecutor John Benedict
D. Medina.9

On February 14, 2011, Dr. Patria Gloria Inocencio-Ortega (Dr. Inocencio-Ortega), Dr. Ortega's wife, filed a Supplemental
Affidavit-Complaint implicating former Governor Reyes as the mastermind of her husband's murder. Former Governor
Reyes' brother, Coron Mayor Mario T. Reyes, Jr., former Marinduque Governor Jose T. Carreon, former Provincial
Administrator Atty. Romeo Seratubias, Marlon Recamata, Dennis Aranas, Valentin Lesias, Arturo D. Regalado; Armando
Noel, Rodolfo O. Edrad, and several John and Jane Does were also implicated.10

On June 8, 2011, the First Panel concluded its preliminary investigation and issued the Resolution 11 dismissing the
Affidavit-Complaint.

On June 28, 2011, Dr. 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.12 On July 7, 2011, while the
Motion to Re-Open was still pending, Dr. Inocencio-Ortega filed a Motion for Partial Reconsideration Ad Cautelam of the
Resolution dated June 8, 2011. Both Motions were denied by the First Panel in the Resolution 13dated September 2, 2011.14

On September 7, 2011, the Secretary of Justice issued Department Order No. 710 creating a new panel of investigators
(Second Panel) to conduct a reinvestigation of the case. The Second Panel was composed of Assistant State Prosecutor
Stewart Allan M. Mariano, Assistant State Prosecutor Vimar M. Barcellano, and Assistant State Prosecutor Gerard E. Gaerlan.

Department Order No. 710 ordered the reinvestigation of the case "in the interest of service and due process"15 to address
the offer of additional evidence denied by the First Panel in its Resolution dated September 2, 2011. The Department Order
also revoked Department Order No. 091.16
Pursuant to Department Order No. 710, the Second Panel issued a Subpoena requiring former Governor Reyes to appear
before them on October 6 and 13, 2011 and to submit his counter-affidavit and supporting evidence.17

On September 29, 2011, Dr. Inocencio-Ortega filed before the Secretary of Justice a Petition for Review (Ad Cautelam)
assailing the First Panel's Resolution dated September 2, 2011.18

On October 3, 2011, former Governor Reyes filed before the Court of Appeals a Petition for Certiorari and Prohibition with
Prayer for a Writ of Preliminary Injunction and/or Temporary Restraining Order assailing the creation of the Second Panel.
In his Petition, he argued that the Secretary of Justice gravely abused her discretion when she constituted a new panel. He
also 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.19

On March 12, 2012, the Second Panel issued the Resolution finding probable cause and recommending the filing of
informations on all accused, including former Governor Reyes.20 Branch 52 of the Regional Trial Court of Palawan
subsequently issued warrants of arrest on March 27, 2012.21 However, the warrants against former Governor Reyes and his
brother were ineffective since the two allegedly left the country days before the warrants could be served.22

On March 29, 2012, former Governor Reyes filed before the Secretary of Justice a Petition for Review Ad
Cautelam23 assailing the Second Panel's Resolution dated March 12, 2012.

On April 2, 2012, he also filed before the Court of Appeals a Supplemental Petition for Certiorari and Prohibition with
Prayer for Writ of Preliminary Injunction and/or Temporary Restraining Order impleading Branch 52 of the Regional Trial
Court of Palawan.24

In his Supplemental Petition, former Governor Reyes argued that the Regional Trial Court could not enforce the Second
Panel's Resolution dated March 12, 2012 and proceed with the prosecution of his case since this Resolution was void. 25

On March 19, 2013, the Court of Appeals, in a Special Division of Five, rendered the Decision 26 declaring Department Order
No. 710 null and void and reinstating the First Panel's Resolutions dated June 8, 2011 and September 2, 2011.

According to the Court of Appeals, the Secretary of Justice committed grave abuse of discretion when she issued
Department Order No. 710 and created the Second Panel. The Court of Appeals found that she should have modified or
reversed the Resolutions of the First Panel pursuant to the 2000 NPS Rule on Appeal 27 instead of issuing Department'
Order No. 710 and creating the Second Panel. It found that because of her failure to follow the procedure in the 2000 NPS
Rule on Appeal, two Petitions for Review Ad Cautelam filed by the opposing parties were pending before her.28

The Court of Appeals also found that the Secretary of Justice's admission that the issuance of Department Order No. 710
did not set aside the First Panel's Resolution dated June 8, 2011 and September 2, 2011 "[compounded] the already
anomalous situation."29 It also stated that Department Order No. 710 did not give the Second Panel the power to reverse,
affirm, or modify the Resolutions of the First Panel; therefore, the Second Panel did not have the authority to assess the
admissibility and weight of any existing or additional evidence.30

The Secretary of Justice, the Second Panel, and Dr. Inocencio-Ortega filed a Motion for Reconsideration of the Decision
dated March 19, 2013. The Motion, however, was denied by the Court of Appeals in the Resolution 31 dated September 27,
2013.

In its Resolution, the Court of Appeals stated that the Secretary of Justice had not shown the alleged miscarriage of justice
sought to be prevented by the creation of the Second Panel since both parties were given full opportunity to present their
evidence before the First Panel. It also ruled that the evidence examined by the Second Panel was not additional evidence
but "forgotten evidence"32 that was already available before the First Panel during the conduct of the preliminary
investigation.33

Aggrieved, the Secretary of Justice and the Second Panel filed the present Petition for Review on Certiorari 34assailing the
Decision dated March 19, 2013 and Resolution dated September 27, 2013 of the Court of Appeals. Respondent Mario Joel
T. Reyes filed his Comment35 to the Petition in compliance with this court's Resolution dated February 17,
2014.36 Petitioners' Reply37 to the Comment was filed on October 14, 2014 in compliance with this court's Resolution dated
June 23, 2014.38

Petitioners argue that the Secretary of Justice acted within her authority when she issued Department Order No. 710. They
argue that 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.39 In their submissions, they point out that under Republic Act No. 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 miscarriage of justice.40
Petitioners' position was that the First Panel "appear[ed] to have ignored the rules of preliminary investigation" 41when it
refused to receive additional evidence that would have been crucial for the determination of the existence of probable
cause.42 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. 43 Petitioners argue
that since the Information had been filed, the disposition of the case was already within the discretion of the trial court. 44

Respondent, on the other hand, argues that the Secretary of Justice 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. 45

Respondent argues that the Secretary of Justice's discretion to create a new panel of prosecutors was not
"unbridled"46 since 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.47 He argues that the Second Panel's Resolution dated March
12, 2012 was void since the Panel was created by a department order that was beyond the Secretary of Justice's 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.48

The issues for this court's resolution are:

First, whether the Court of Appeals erred in ruling that the Secretary of Justice committed grave abuse of discretion when
she issued Department Order No. 710, and with regard to this:

a. Whether the issuance of Department Order No. 710 was an executive function beyond the scope of a petition for
certiorari or prohibition; and

b. Whether the Secretary of Justice is authorized to create motu proprio another panel of prosecutors in order to
conduct a reinvestigation of the case.

Lastly, whether this Petition for Certiorari has already been rendered moot by the filing of the information in court,
pursuant to Crespo v. Mogul.49

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.

Under the Rules of Court, a writ of certiorari is directed against "any tribunal, board or officer exercising judicial or quasi-
judicial functions."50 A quasi-judicial function is "the action, discretion, etc., of public administrative officers or bodies,
who are required to investigate facts, or ascertain the existence of facts, hold hearings, and draw conclusions from them,
as a basis for their official action and to exercise discretion of a judicial nature."51 Otherwise stated, an administrative
agency performs quasi-judicial functions if it renders awards, determines the rights of opposing parties, or if their
decisions have the same effect as the judgment of a court.52

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." 53 As such, the prosecutor does not perform
quasi-judicial functions. In Santos v. Go:54

[T]he prosecutor in a preliminary investigation does not determine the guilt or innocence of the accused. He does not
exercise adjudication nor rule-making functions. Preliminary investigation is merely inquisitorial, and is often the only
means of discovering the persons who may be reasonably charged with a crime and to enable the fiscal to prepare his
complaint or information. It is not a trial of the case on the merits and has no purpose except that of determining whether
a crime has been committed and whether there is probable cause to believe that the accused is guilty thereof. While the
fiscal makes that determination, he cannot be said to be acting as a quasi-court, for it is the courts, ultimately, that pass
judgment on the accused, not the fiscal.

Though some cases describe the public prosecutors power to conduct a preliminary investigation as quasi-judicial in
nature, this is true only to the extent that, like quasi-judicial bodies, the prosecutor is an officer of the executive
department exercising powers akin to those of a court, and the similarity ends at this point. A quasi-judicial body is as an
organ of government other than a court and other than a legislature which affects the rights of private parties through
either adjudication or rule-making. A quasi-judicial agency performs adjudicatory functions such that its awards,
determine the rights of parties, and their decisions have the same effect as judgments of a court. Such is not the case
when a public prosecutor conducts a preliminary investigation to determine probable cause to file an information against
a person charged with a criminal offense, or when the Secretary of Justice is reviewing the formers order or resolutions.55

In Spouses Dacudao v. Secretary of Justice,56 a petition for certiorari, prohibition, and. mandamus was filed.against the
Secretary of Justice's issuance of a department order. The assailed order directed all prosecutors to forward all cases
already filed against Celso de los Angeles of the Legacy Group to the Secretariat of the Special Panel created by the
Department of Justice.

This court dismissed the petition on the ground that petitions for certiorari and prohibition are directed on]y to tribunals
that exercise judicial or quasi-judicial functions. The issuance of the department order was a purely administrative or
executive function of the Secretary of Justice. While the Department of Justice may perform functions similar to that of a
court of law, it is not a quasi-judicial agency:

The fact that the DOJ is the primary prosecution arm of the Government does not make it a quasi-judicial office or agency.
Its preliminary investigation of cases is not a quasi-judicial proceeding. Nor does the DOJ exercise a quasi-judicial function
when it reviews the findings of a public prosecutor on the finding of probable cause in any case. Indeed, in Bautista v. Court
of Appeals, the Supreme Court has held that a preliminary investigation is not a quasi-judicial proceeding, stating:

... [t]he prosecutor in a preliminary investigation does not determine the guilt or innocence of the accused. He does not
exercise adjudication nor rule-making functions. Preliminary investigation is merely inquisitorial, and is often the only
means of discovering the persons who may be reasonably charged with a crime and to enable the fiscal to prepare his
complaint or information. It is not a trial of the case on the merits and has no purpose except that of determining whether
a crime has been committed and whether there is probable cause to believe that the accused is guilty thereof. While the
fiscal makes that determination, he cannot be said to be acting as a quasi-court, for it is the courts, ultimately, that pass
judgment on the accused, not the fiscal.

There may be some decisions of the Court that have characterized the public prosecutor's power to conduct a preliminary
investigation as quasi-judicial in nature. Still, this characterization is true only to the extent that the public prosecutor, like
a quasi-judicial body, is an officer of the executive department exercising powers akin to those of a court of law.

But the limited similarity. between the public prosecutor and a quasi-judicial body quickly ends there. For sure, a quasi-
judicial body is an organ of government other than a court of law or a legislative office that affects the rights of private
parties through either adjudication or rulemaking; it performs adjudicatory functions, and its awards and adjudications
determine the rights of the parties coming before it; its decisions have the same effect as the judgments of a court of law.
In contrast, that is not the effect whenever a public prosecutor conducts a preliminary investigation to determine. probable
cause in order to file a criminal information against a person properly charged with the offense, or whenever the Secretary
of Justice reviews the public prosecutor's orders or resolutions.57(Emphasis supplied)

Similarly, in Callo-Claridad v. Esteban,58 we have stated that a petition for review under Rule 43 of the Rules of Court
cannot be brought to assail the Secretary of Justice's resolution dismissing a complaint for lack of probable cause since
this is an "essentially executive function":59

A petition for review under Rule 43 is a mode of appeal to be taken only to review the decisions, resolutions or awards by
the quasi-judicial officers, agencies or bodies, particularly those specified in Section 1 of Rule 43. In the matter before us,
however, the Secretary of Justice was not an officer performing a quasi-judicial function. In reviewing the findings of the
OCP of Quezon City on the matter of probable cause, the Secretary of Justice performed an essentially executive function
to determine whether the crime alleged against the respondents was committed, and whether there was 'probable cause to
believe that the respondents _were guilty thereof.60

A writ of prohibition, on the other hand, is directed against "the proceedings of any tribunal, corporation, board, officer or
person, whether exercising judicial, quasi-judicial or ministerial functions."61 The Department of Justice is not a court of
law and its officers do not perform quasi-judicial functions. The Secretary of Justice's review of the resolutions of
prosecutors is also not a ministerial function.

An act is considered ministerial if "an officer or tribunal performs in the context of a given set of facts, in a prescribed
manner and without regard for the exercise of his or its own judgment, upon the propriety or impropriety of the act
done."62 In contrast, an act is considered discretionary "[i]f the law imposes a duty upon a public officer, and gives him the
right to decide how or when the duty shall be performed."63 Considering that "full discretionary authority has been
delegated to the executive branch in the determination of probable cause during a preliminary investigation,"64the
functions of the prosecutors and the Secretary of Justice are not ministerial.
However, even when an administrative agency does not perform a judicial, quasi-judicial, or ministerial function, the
Constitution mandates the exercise of judicial review when there is an allegation of grave abuse of discretion. 65 In Auto
Prominence Corporation v. Winterkorn:66

In ascertaining whether the Secretary of Justice committed grave abuse of discretion amounting to lack or excess of
jurisdiction in his determination of the existence of probable cause, the party seeking the writ of certiorari must be able to
establish that the Secretary of Justice exercised his executive power in an arbitrary and despotic manner, by reason of
passion or personal hostility, and the abuse of discretion must be so patent and gross as would amount to an evasion or to
a unilateral refusal to perform the duty enjoined or to act in contemplation of law. Grave abuse of discretion is not
enough; it must amount to lack or excess of jurisdiction. Excess of jurisdiction signifies that he had jurisdiction over the
case, but (he) transcended the same or acted without authority.67

Therefore, any question on whether the Secretary of Justice committed grave abuse of discretion amounting to lack or
excess of jurisdiction in affirming, reversing, or modifying the resolutions of prosecutors may be the subject of a petition
for certiorari under Rule 65 of the Rules of Court.

II

Under existing laws, rules of procedure, and jurisprudence, the Secretary of Justice is authorized to issue Department
Order No. 710.

Section 4 of Republic Act No. 1007168 outlines the powers granted by law to the Secretary of Justice. The provision reads:

Section 4. Power of the Secretary of Justice. - The power vested in the Secretary of Justice includes authority to act directly
on any matter involving national security or a probable miscarriage of justice within the jurisdiction of the prosecution
staff, regional prosecution office, and the provincial prosecutor or the city prosecutor and to review, reverse, revise,
modify or affirm on appeal or petition for review as the law or the rules of the Department of Justice (DOJ) may provide,
final judgments and orders of the prosecutor general, regional prosecutors, provincial prosecutors, and city prosecutors.

A criminal prosecution is initiated by the filing of a complaint to a prosecutor who shall then conduct a preliminary
investigation in order to determine whether there is probable cause to hold the accused for trial in court. 69 The
recommendation of the investigating prosecutor on whether to dismiss the complaint or to file the corresponding
information in court is still subject to the approval of the provincial or city prosecutor or chief state prosecutor.70

However, a party is not precluded from appealing the resolutions of the provincial or city prosecutor or chief state
prosecutor to the Secretary of Justice. Under the 2000 NPS Rule on Appeal, 71 appeals may be taken within 15 days within
receipt of the resolution by filing a verified petition for review before the Secretary of Justice.72

In this case, the Secretary of Justice designated a panel of prosecutors to investigate on the Complaint filed by Dr.
Inocencio-Ortega. The First Panel, after conduct of the preliminary investigation, resolved to dismiss the Complaint on the
ground that the evidence was insufficient to support a finding of probable cause. Dr. Inocencio-Ortega filed a Motion to Re-
Open and a Motion for Partial Investigation, which were both denied by the First Panel. Before Dr. Inocencio-Ortega could
file a petition for review, the Secretary of Justice issued Department Order No. 710 and constituted another panel of
prosecutors to reinvestigate the case. The question therefore is whether, under the 2000 NPS Rule on Appeal, the Secretary
of Justice may, even without a pending petition for review, motu proprio order the conduct of a reinvestigation.

The 2000 NPS Rule on Appeal requires the filing of a petition for review before the Secretary of Justice can reverse, affirm,
or modify the appealed resolution of the provincial or city prosecutor or chief state prosecutor. 73 The Secretary of Justice
may also order the conduct of a reinvestigation in order to resolve the petition for review. Under Section 11:

SECTION 11. Reinvestigation. If the Secretary of Justice finds it necessary to reinvestigate the case, the reinvestigation shall
be held by the investigating prosecutor, unless, for compelling reasons, another prosecutor is designated to conduct the
same.

Under Rule 112, Section 4 of the Rules of Court, however, the Secretary of Justice may motu proprio reverse or modify
resolutions of the provincial or city prosecutor or the chief state prosecutor even without a pending petition for review.
Section 4 states:

SEC. 4. Resolution of investigating prosecutor and its review. - If the investigating prosecutor finds cause to hold the
respondent for trial, he shall prepare the resolution and information. He shall certify under oath in the information that
he, or as shown by the record, an authorized officer, has personally examined the complainant and his witnesses; that
there is reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof; that
the accused was informed of the complaint and of the evidence submitted against him; and that he was given an
opportunity to submit controverting evidence. Otherwise, he shall recommend the dismissal of the complaint.

....

If upon petition by a proper party under such rules as the Department of Justice may prescribe or motu proprio, the
Secretary of Justice reverses or modifies the resolution of the provincial or city prosecutor or chief state prosecutor, he shall
direct the prosecutor concerned either to file the corresponding information without conducting another preliminary
investigation, or to dismiss or move for dismissal of the complaint or information with notice to the parties. The same rule
shall apply in preliminary investigations conducted by the officers of the Office of the Ombudsman. (Emphasis supplied)

The Secretary of Justice exercises control and supervision over prosecutors and it is within her authority to affirm, nullify,
reverse, or modify the resolutions of her prosecutors. In Ledesma v. Court of Appeals:74

Decisions or resolutions of prosecutors are subject to appeal to the secretary of justice who, under the Revised
Administrative Code, exercises the power of direct control and supervision over said prosecutors; and who may thus
affirm, nullify, reverse or modify their rulings.

Section 39, Chapter 8, Book IV in relation to Section 5, 8, and 9, Chapter 2, Title III of the Code gives the secretary of
justice supervision and control over the Office of the Chief Prosecutor and the Provincial and City Prosecution Offices. The
scope of his power of supervision and control is delineated in Section 38, paragraph 1, Chapter 7, Book IV of the Code:

(1) Supervision and Control. Supervision and control shall include authority to act directly whenever a specific function is
entrusted by law or regulation to a subordinate; direct the performance of duty; restrain the commission of acts; review,
approve, reverse or modify acts and decisions of subordinate officials or units[.]75

Similarly, in Rural Community Bank of Guimba v. Hon. Talavera: 76

The actions of prosecutors are not unlimited; they are subject to review by the secretary of justice who may affirm, nullify,
reverse or modify their actions or opinions. · Consequently the secretary may direct them to file either a motion to dismiss
the case or information against the accused.

In short, the secretary of justice, who has the power of supervision and control over prosecuting officers, is the ultimate
authority who decides which of the conflicting theories of the complainants and the respondents should be believed. 77

Section 4 of Republic Act No. 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.

Dr. Inocencio-Ortega filed a Motion to Re-Open the preliminary Investigation before the First Panel in order to admit as
evidence mobile phone conversations between Edrad and respondent and argued that these phone conversations tend to
prove that respondent was the mastermind of her husband's murder. The First Panel, however, dismissed the Motion on
the ground that it was filed out of time. The First Panel stated:

Re-opening of the preliminary investigation for the purpose of receiving additional evidence presupposes that the case has
been submitted for resolution but no resolution has been promulgated therein by the investigating prosecutor. Since a
resolution has already been promulgated by the panel of prosecutors in this case, the motion to re-open the. preliminary
investigation is not proper and has to be denied.78

In the same Resolution, the First Panel denied Dr. Inocencio-Ortega's Motion for Partial Reconsideration on the ground that
"the evidence on record does not suffice to establish probable cause."79 It was then that the Secretary of Justice issued
Department Order No. 710, which states:

In the interest of service and due process, and to give both parties all the reasonable opportunity to present their evidence
during the preliminary investigation, a new panel is hereby created composed of the following for the purpose of
conducting a reinvestigation....

....

The reinvestigation in this case is hereby ordered to address the offer of additional evidence by the complainants, which was
denied by the former panel in its Resolution of 2 September 2011 on the ground that an earlier resolution has already been
promulgated prior to the filing of the said motion, and such other issues which may be raised before the present
panel.80 (Emphasis supplied)

In her reply-letter dated September 29, 2011 to respondent's counsel, the Secretary of Justice further explained that:

The order to reinvestigate was dictated by substantial justice and our desire to have a comprehensive investigation. We do
not want any stone unturned, or any evidence overlooked. As stated in D.O. No. 710, we want to give "both parties all the
reasonable opportunity to present their evidence. "81

Under these circumstances, it is clear that the Secretary of Justice issued Department Order 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." 82

Accordingly, Dr. Inocencio-Ortega's Petition for Review before the Secretary of Justice was rendered moot with the
issuance by the Second Panel of the Resolution dated March 12, 2012 and the filing of the Information against respondent
before the trial court.

III

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.

It is settled that executive determination of probable cause is different from the judicial determination of probable cause.
In People v. Castillo and Mejia:83

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.84 (Emphasis supplied)

The courts do not interfere with the prosecutor's conduct of a preliminary investigation. The prosecutor's determination of
probable cause is solely within his or her discretion. Prosecutors are given a wide latitude of discretion to determine
whether an information should be filed in court or whether the complaint should be dismissed.85

A preliminary investigation .is "merely inquisitorial,"86 and is only conducted to aid the prosecutor in preparing the
information.87 It serves a two-fold purpose: first, to protect the innocent against wrongful prosecutions; and second, to
spare the state from using its funds and resources in useless prosecutions. In Salonga v. Cruz-Paño:88

The purpose of a preliminary investigation is 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.89

Moreover, a preliminary investigation is merely preparatory to a trial. It is not a trial on the merits. An accused's right to a
preliminary investigation is merely statutory; it is not a right guaranteed by the Constitution. Hence, any alleged
irregularity in an investigation's conduct does not render the information void nor impair its validity.
In Lozada v. Fernando:90

It has been said time and again that a preliminary investigation is not properly" a trial or any part thereof but is merely
preparatory thereto, its only purpose being to determine whether a crime has been committed and whether there is
probable cause to believe the accused guilty thereof. The right to such investigation is not a fundamental right guaranteed
by the constitution. At most, it is statutory. And rights conferred upon accused persons to participate in preliminary
investigations concerning themselves depend upon the provisions of law by which such rights are specifically secured,
rather than upon the phrase "due process of law."91 (Citations omitted)
People V. Narca92 further states:

It must be emphasized that the preliminary investigation is not the venue for the full exercise of the rights of the parties.
This is why preliminary investigation is not considered as a part of trial but merely preparatory thereto and that the
records therein shall not form part of the records of the case in court. Parties' may submit affidavits but have no right to
examine witnesses though they can propound questions through the investigating officer. In fact, a preliminary
investigation may even be conducted ex-parte in certain cases. Moreover, in Section 1 of Rule 112, the purpose of a
preliminary investigation is only to determine a well grounded belief if a crime was probably committed by an accused. In
any case, the invalidity or absence of a preliminary investigation does not affect the jurisdiction of the court which may have
taken cognizance of the information nor impair the validity of the information or otherwise render it defective. 93 (Emphasis
supplied)

Once the 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 the sound discretion of the court. In Crespo v. Mogul:94

The filing of a complaint or information in Court initiates a criminal action. The Court thereby acquires jurisdiction over
the case, which is the authority to hear and determine the case. When after the filing of the complaint or information a
warrant for the arrest of the accused is issued by the trial court and the accused either voluntarily submitted himself to
the Court or was duly arrested, the Court thereby acquired jurisdiction over the person of the accused.

The preliminary investigation conducted by the fiscal for the purpose of determining whether a prima facie case exists
warranting the prosecution of the accused is terminated upon the filing of the information in the proper court. In turn, as
above stated, the filing of said information sets in motion the criminal action against the accused in Court. Should the
fiscal find it proper to conduct a reinvestigation of the case, at such stage, the permission of the Court must be secured.
After such reinvestigation the finding and recommendations of the fiscal should be submitted to the Court for appropriate
action. While it is true that the fiscal has the quasi-judicial discretion to determine whether or not a criminal case should
be filed in court or not, once the case had already been brought to Court whatever disposition the fiscal may feel should be
proper in the case thereafter should be addressed for the consideration of the Court, the only qualification is that the
action of the Court must not impair the substantial rights of the accused or the right of the People to due process of
law.1âwphi1

Whether the accused had been arraigned or not and whether it was due to a reinvestigation by the fiscal or a review by the
Secretary of Justice whereby a motion to dismiss was submitted to the Court, the Court in the exercise of its discretion may
grant the motion or deny it and require that the trial on the merits proceed for the proper determination of the case.

However, one may ask, if the trial court refuses to grant the motion to dismiss filed by the fiscal upon the directive of the
Secretary of Justice will there not be a vacuum in the prosecution? A state prosecutor to handle the case cannot possibly
be designated by the Secretary of Justice who does not believe that there is a basis for prosecution nor can the fiscal be
expected to handle the prosecution of the case thereby defying the superior order of the Secretary of Justice.

The answer is simple. The role of the fiscal or prosecutor as We all know is to see that justice is -done and not necessarily
to secure the conviction of the person accused before the Courts. Thus, in spite of his opinion to the contrary, it is the
duty of the fiscal to proceed with the presentation of evidence of the prosecution to the Court to enable the Court to arrive
at its own independent judgment as to whether the accused should be convicted or acquitted. The fiscal should not shirk
from the responsibility of appearing for the People of the Philippines even under such circumstances much less should he
abandon the prosecution of the case leaving it to the hands of a private prosecutor for then the entire proceedings will be
null and void. The least that the fiscal should do is to continue to appear for the prosecution although he may turn over
the presentation of the evidence to the private prosecutor but still under his direction and control.

The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any disposition of the case as to
its dismissal or the conviction or acquittal of the accused rests in the sound discretion of the Court. Although the fiscal
retains the direction and control of the prosecution of criminal cases even while the case is already in Court he cannot
impose his opinion on the trial court. The Court is the best and sole judge on what to do with the case before it. · The
determination of the case is within its exclusive jurisdiction and competence. A motion to dismiss the case filed by the fiscal
should be addressed to the Court who has the option to grant or deny the same. It does not matter if this is done before or
after the arraignment of the accused or that the motion was filed after a reinvestigation or upon instructions of the
Secretary of Justice who reviewed the records of the investigation. 95 (Emphasis supplied)

Thus, it would be ill-advised for the Secretary of Justice to proceed with resolving respondent's Petition for Review
pending before her. It would be more prudent to refrain from entertaining the Petition considering that the trial court
already issued a warrant of arrest against respondent.96 The issuance of the warrant signifies that the trial court has made
an independent determination of the existence of probable cause. In Mendoza v. People:97
While it is within the trial court's 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 prosecutor's determination of probable cause; rather, the judge makes a
determination of probable cause independent of the prosecutor's finding.98

Here, the 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.

The Court of Appeals 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"99 provided by law. Since this Petition for Review is an appeal from .a moot
Petition for Certiorari, it must also be rendered moot.

The prudent course of action at this stage would be to proceed to trial. Respondent, however, is not without remedies. He
may still file any appropriate action before the trial court or question any alleged irregularity in the preliminary
investigation during pre-trial.

WHEREFORE, the Petition is DISMISSED for being moot. Branch 52 of the Regional Trial Court of Palawan is DIRECTED to
proceed with prosecution of Criminal Case No. 26839.

SO ORDERED.
G.R. No. 130191 April 27, 1998

RODRIGO R. DUTERTE and BENJAMIN C. DE GUZMAN, petitioners,

vs.
THE HONORABLE SANDIGANBAYAN, respondent.

KAPUNAN, J.:

The right to a preliminary investigation is not a mere formal right; it is a substantive right. To deny the accused of such
right would be to deprive him of due process.

In this special civil action for certiorari with preliminary injunction, petitioners seek to set aside the Order of the
Sandiganbayan dated 27 June 1997 denying the Motion to Quash the information filed against them for violating Sec. 3(g)
of R.A. No. 3019, otherwise known as the Anti-Graft And Corrupt Practices Act. Petitioners similarly impugn the Resolution
of the Sandiganbayan dated 5 August 1997 which denied their Motion for Reconsideration thereof.

Pertinent to this case are the following facts:

In 1990, the Davao City Local Automation Project was launched by the city government of Davao. The goal of said project
was to make Davao City a leading center for computer systems and technology development. It also aimed to provide
consultancy and training services and to assist all local government units in Mindanao set up their respective computer
systems.

To implement the project, a Computerization Program Committee, composed of the following was formed:

Chairman : Atty. Benjamin C. de Guzman, City Administrator

Members : Mr. Jorge Silvosa, Acting City Treasurer

Atty. Victorino Advincula, City Councilor

Mr. Alexis Almendras, City Councilor

Atty. Onofre Francisco, City Legal Officer

Mr. Rufino Ambrocio, Jr., Chief of Internal Control Office

Atty. Mariano Kintanar, COA Resident Auditor. 1

The Committee's duty was to "conduct a thorough study of the different computers in the market, taking into account the
quality and acceptability of the products, the reputation and track record of the manufacturers and/or their Philippine
distributors, the availability of the replacement parts and accessories in the Philippines, the availability of service centers
in the country that can undertake preventive maintenance of the computer hardwares to ensure a long and uninterrupted
use and, last but not the least, the capability of the manufacturers and/or Philippine distributors to design and put into
place the computer system — complete with the flow of paperwork, forms to be used and personnel required." 2

Following these guidelines, the Committee recommended the acquisition of Goldstar computers manufactured by Goldstar
Information and Communication, Ltd., South Korea and exclusively distributed in the Philippines by Systems Plus, Inc.
(SPI).

After obtaining prior clearance from COA Auditor Kintanar, the Committee proceeded to negotiate with SPI, represented
by its President Rodolfo V. Jao and Executive Vice President Manuel T. Asis, for the acquisition and installation of the
computer hardware and the training of personnel for the Electronic Data-Processing Center. The total contract cost
amounted to P11,056,810.00.

On 5 November 1990, the City Council (Sangguniang Panlungsod) of Davao unanimously passed Resolution No. 1402 and
Ordinance No. 173 approving the proposed contract for computerization between Davao City and SPI. The Sanggunian,
likewise, authorized the City Mayor (petitioner Duterte) to sign the said contract for and in behalf of Davao City. 3

On the same day, the Sanggunian issued Resolution No. 1403 and Ordinance No. 174, the General Fund Supplemental
Budget No. 07 for CY 1990 appropriating P3,000,000.00 for the city's computerization project.
Given the go-signal, the contract was duly signed by the parties thereto and on 8 November 1990, petitioner City
Administrator de Guzman released to SPI PNB Check No. 65521 in the amount of P1,748,521.58 as downpayment.

On 27 November 1990, the Office of the Ombudsman-Mindanao received a letter-complaint from a "concerned citizen,"
stating that "some city officials are going to make a killing" in the transaction.4 The complaint was docketed as OMB-MIN-
90-0425. However, no action was taken thereon.5

Thereafter, sometime in February 1991, a complaint docketed as Civil Case No. 20,550-91, was instituted before the
Regional Trial Court of Davao City, Branch 12 by Dean Pilar Braga, Hospicio C. Conanan, Jr. and Korsung Dabaw
Foundation, Inc. against the petitioners, the City Council, various city officials and SPI for the judicial declaration of nullity
of the aforestated resolutions and ordinances and the computer contract executed pursuant thereto.

On 22 February 1991, Goldstar, through its agent, Mr. S.Y. Lee sent a proposal to petitioner Duterte for the cancellation of
the computerization contract.

Consequently, on 8 April 1991, the Sanggunian issued Resolution No. 449 and Ordinance No. 53 accepting Goldstar's offer
to cancel the computerization contract provided the latter return the advance payment of P1,748,521.58 to the City
Treasurer's Office within a period of one month. Petitioner Duterte, as city mayor, was thus authorized to take the proper
steps for the mutual cancellation of the said contract and to sign all documents relevant thereto.6

Pursuant to the aforestated authority, on 6 May 1991, petitioner Duterte, in behalf of Davao City, and SPI mutually
rescinded the contract and the downpayment was duly refunded.

In the meantime, a Special Audit Team of the Commission on Audit was tasked to conduct an audit of the Davao City Local
Automation Project to determine if said contract conformed to government laws and regulations.

On 31 May 1991, the team submitted its Special Audit Report (SAR) No. 91-05 recommending rescission of the subject
contract. A copy of the report was sent to petitioner Duterte by COA Chairman Eufemio C. Domingo on 7 June 1991. In the
latter's transmittal letter, Chairman Domingo summarized the findings of the special audit team, thus:

1. The award of the contract for the "Davao City Local Automation Project" to Systems Plus, Inc., for P11,656,810
was done thru negotiated contract rather than thru competitive public bidding in violation of Sections 2 and 8 of
PD 526. Moreover, there was no sufficient appropriation for this particular contract in violation of Sec. 85 of PD
1445.

2. Advance payment of P1.7M was made to Systems Plus, Inc. covering 15% of the contract cost of P11.6M in
violation of Sec. 45 of PD 477 and Sec. 88 of PD 1445.

3. The cost of computer hardware and accessories under contract with "Systems Plus, Inc. (SPI)" differed from the
team's canvass by as much as 1200% or a total of P1.8M.

4. The City had no Information Systems Plan (ISP) prior to the award of the contract to SPI in direct violation of
Malacañang Memo. Order No. 287 and NCC Memo. Circular 89-1 dated June 22, 1989. This omission resulted in
undue disadvantage to the City Government.

5. To remedy the foregoing deficiencies, the team recommends that the contract with Systems Plus, Inc. be
rescinded in view of the questionable validity due to insufficient funding. Further, the provisions of NCC-MC 89-1
dated June 22, 1989 regarding procurement and/or installation of computer hardware/system should be strictly
adhered to. 7

The city government, intent on pursuing its computerization plan, decided to follow the audit team's recommendation and
sought the assistance of the National Computer Center (NCC). After conducting the necessary studies, the NCC
recommended the acquisition of Philips computers in the amount of P15,792,150.00. Davao City complied with the NCC's
advice and hence, was finally able to obtain the needed computers.

Subsequently, on 1 August 1991, the Anti-Craft League-Davao City Chapter, through one Miguel C. Enriquez, filed an
unverified complaint with the Ombudsman-Mindanao against petitioners, the City Treasurer, City Auditor, the whole city
government of Davao and SPI. The League alleged that the respondents, in entering into the computerization contract,
violated R.A. No. 3019 (Anti-Graft and Corrupt Practices Act), PD No. 1445 (Government Auditing Code of the Philippines),
COA circulars and regulations, the Revised Penal Code and other pertinent penal laws. The case was docketed as OMB-3-
91-1768.8
On 9 October 1991, Graft Investigation Officer (GIO) Pepito A. Manriquez of the Office of the Ombudsman sent a letter 9 to
COA Chairman Domingo requesting the Special Audit Team to submit their joint affidavit to substantiate the complaint in
compliance with Section 4, par. (a) of the Rules of Procedure of the Office of the Ombudsman (A.O. No. 07).

On 14 October 1991, Judge Paul T. Arcangel, issued an Order dismissing Civil Case No. 20,550-91. The dispositive portion
reads, thus:

WHEREFORE, in view of all the foregoing, this case is hereby dismissed on the ground of prematurity and that it
has become moot and academic with the mutual cancellation of the contract. The other claims of the parties are
hereby denied. No pronouncement as to costs.

SO ORDERED. 10

On 12 November 1991, Graft Investigator Manriquez issued an order in OMB-3-91-1768 directing petitioners, Jorge Silvosa
(City Treasurer), Mariano Kintanar (City Auditor) and Manuel T. Asis of SPI to:

. . . file in ten (10) days (1) their respective verified point-by-point comment under oath upon every allegation of
the complaint in Civil Case No. 20,550-91 in the Regional Trial Court (RTC), Branch 12, Davao City "Dean Pilar C.
Braga, et al. vs. Hon. Rodrigo Duterte," for Judicial Declaration of Nullity and Illegality of City Council of Davao
Resolutions and Ordinances, and the Computer Contract executed Pursuant Thereto, for Recovery of Sum of
Money, Professional Fees and Costs — with Injunctive Relief, including the Issuance of a Restraining Order and/or
a Writ of Preliminary Prohibitory Injunction in which they filed a motion to dismiss, not an answer and (2) the
respective comments, also under oath, on the Special Audit Report No. 91-05, a copy of which is attached. 11

On 4 December 1991, the Ombudsman received the affidavits of the Special Audit Team but failed to furnish petitioners
copies thereof.

On 18 February 1992, petitioners submitted a manifestation adopting the comments filed by their co-respondents Jorge
Silvosa and Mariano Kintanar dated 25 November 1991 and 17 January 1992, respectively.

Four years after, or on 22 February 1996, petitioners received a copy of a Memorandum prepared by Special Prosecution
Officer I, Lemuel M. De Guzman dated 8 February 1996 addressed to Ombudsman Aniano A. Desierto regarding OMB-MIN-
90-0425 and OMB-3-91-1768. Prosecutor De Guzman recommended that the charges of malversation, violation of Sec. 3(e),
R.A. No. 3019 and Art. 177, Revised Penal Code against petitioners and their co-respondents be dismissed. He opined that
any issue pertaining to unwarranted benefits or injury to the government and malversation were rendered moot and
academic by the mutual rescission of the subject contract before the COA submitted its findings (SAR No. 91-05) or before
the disbursement was disallowed. However, Prosecutor De Guzman recommended that petitioners be charged under Sec.
3(g) of R.A. No. 3019 "for having entered into a contract manifestly and grossly disadvantageous to the government, the
elements of profit, unwarranted benefits or loss to government being immaterial."12

Accordingly, the following information dated 8 February 1996 was filed against petitioners before the Sandiganbayan
(docketed as Criminal Case No. 23193):

That on or about November 5, 1990, in the City of Davao, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, both public officers, accused Rodrigo R. Duterte being then the City Mayor and
accused Benjamin C. De Guzman being then the City Administrator of Davao City, committing the crime herein
charged in relation to, while in the performance and taking advantage of their official functions, and conspiring
and confederating with each other, did then and there willfully, unlawfully and criminally enter into a negotiated
contract for the purchase of computer hardware and accessories with the Systems Plus, Incorporated for and in
consideration of the amount of PESOS: ELEVEN MILLION SIX HUNDRED FIFTY-SIX THOUSAND EIGHT HUNDRED
TEN (P11,656,810.00), which contract is manifestly and grossly disadvantageous to the government, said accused
knowing fully-well that the said acquisition cost has been overpriced by as much as twelve hundred (1200%)
percent and without subjecting said acquisition to the required public bidding.

CONTRARY TO LAW. 13

On 27 February 1996, petitioners filed a motion for reconsideration and on 29 March 1996, a Supplemental Motion for
Reconsideration on the following grounds:

1. Petitioners were deprived of their right to a preliminary investigation, due process and the speedy disposition of
their case;

2. Petitioner Duterte acted in good faith and was clothed with authority to enter into the subject contract;
 3. There is no contract manifestly and grossly disadvantageous to the government since the subject contract has
been duly rescinded.

On 19 March 1996, the Ombudsman issued a Resolution denying petitioners' motion for reconsideration.

On 18 June 1997, petitioners filed a Motion to Quash which was denied by the Sandiganbayan in its Order dated 27 June
1997. The Sandiganbayan ruled:

It appears, however, that the accused were able to file motions for the reconsideration of the Resolution
authorizing the filing of the Information herein with the Ombudsman in Manila. This would mean, therefore, that
whatever decision which might have occurred with respect to the preliminary investigation would have been
remedied by the motion for reconsideration in the sense that whatever the accused had to say in their behalf, they
were able to do in that motion for reconsideration.

Considering the denial thereof by the Office of the Ombudsman, the Court does not believe itself empowered to
authorize a reinvestigation on the ground of an inadequacy of the basic preliminary investigation nor with respect
to a dispute as to the proper appreciation by the prosecution of the evidence at that time.

In view hereof, upon further representation by Atty. Medialdea that he represents not only Mayor Duterte but City
Administrator de Guzman as well, upon his commitment, the arraignment hereof is now set for July 25, 1997 at
8:00 o'clock in the morning. 14

On 15 July 1997, petitioners moved for reconsideration of the above order but the same was denied by the Sandiganbayan
for lack of merit in its Resolution dated 5 August 1997.15

Hence, the present recourse.

Petitioners allege that:

THE HONORABLE SANDIGANBAYAN COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR

EXCESS OF JURISDICTION IN DENYING PETITIONERS' MOTION TO QUASH AND MOTION FOR RECONSIDERATION,
CONSIDERING THAT:

(1) PETITIONERS WERE EFFECTIVELY DEPRIVED OF THEIR RIGHT TO A PRELIMINARY

INVESTIGATION PURSUANT TO SEC. 4, RULE II OF ADMINISTRATIVE ORDER NO. 07 (RULES OF
PROCEDURE OF THE OFFICE OF THE OMBUDSMAN); AND

(2) ASSUMING THAT A PRELIMINARY INVESTIGATION WAS PROPERLY CONDUCTED, THERE WAS
AN INORDINATE DELAY IN TERMINATING THE SAME THEREBY DEPRIVING THEM OF THEIR RIGHT
TO DUE PROCESS AND SPEEDY DISPOSITION OF THE CASE.

THERE IS NO SUFFICIENT BASIS, IN FACT AND IN LAW, TO CHARGE PETITIONERS DUTERTE AND DE GUZMAN OF
VIOLATING SEC. 3 (G) OF R.A. 3019 IN THAT:

(1) PETITIONER DUTERTE ACTED IN GOOD FAITH AND WAS CLOTHED WITH FULL LEGAL
AUTHORITY FROM THE CITY COUNCIL TO ENTER INTO A CONTRACT WITH SYSTEMS PLUS, INC.;

(2) THERE IS NO CONTRACT MANIFESTLY AND GROSSLY DISADVANTAGEOUS TO THE

GOVERNMENT TO SPEAK OF AS THE SAME HAS BEEN RESCINDED AND NO DAMAGE WAS
SUFFERED BY THE CITY GOVERNMENT;

(3) ASSUMING THAT THE CONTRACT WAS NOT RESCINDED, THE SAME CANNOT BE CONSIDERED
AS MANIFESTLY AND GROSSLY DISADVANTAGEOUS TO THE GOVERNMENT. 16

On 4 September 1997, the Court issued a Temporary Restraining Order enjoining the Sandiganbayan from further
proceeding with Criminal Case No. 23193.
The Court finds the petition meritorious.

We have judiciously studied the case records and we find that the preliminary investigation of the charges against
petitioners has been conducted not in the manner laid down in Administrative Order No. 07.

In the 12 November 1991 Order of Graft Investigator Manriquez, petitioners were merely directed to submit a point-by-
point comment under oath on the allegations in Civil Case No. 20,550-91 and on SAR No. 91-05. The said order
was not accompanied by a single affidavit of any person charging petitioners of any offense as required by law. 17They were
just required to comment upon the allegations in Civil Case No. 20,550-91 of the Regional Trial Court of Davao City which
had earlier been dismissed and on the COA Special Audit Report. Petitioners had no inkling that they were being subjected
to a preliminary investigation as in fact there was no indication in the order that a preliminary investigation was being
conducted. If Graft Investigator Manriquez had intended merely to adopt the allegations of the plaintiffs in the civil case or
the Special Audit Report (whose recommendation for the cancellation of the contract in question had been complied with)
as his bases for criminal prosecution, then the procedure was plainly anomalous and highly irregular. As a consequence,
petitioners' constitutional right to due process was violated.

Sections (2) and (4), Rule II of Administrative Order No. 07 (Rules of Procedure of the Office of the Ombudsman) provide:

Sec. 2. Evaluation. — Upon evaluating the complaint, the investigating officer shall recommend whether or not it
may be:

a) dismissed outright for want of palpable merit;

b) referred to respondent for comment;

c) endorsed to the proper government office or agency which has jurisdiction over the case;

d) forwarded to the appropriate office or official for fact-finding investigation;

e) referred for administrative adjudication; or

f) subjected to a preliminary investigation

xxx xxx xxx

Sec. 4. Procedure. — The preliminary investigation of cases falling under the jurisdiction of the Sandiganbayan and
Regional Trial Courts shall be conducted in the manner prescribed in Section 3, Rule 112 of the Rules of Court,
subject to the following provisions:

a) If the complaint is not under oath or is based only on official reports, the investigating officer shall require the
complainant or supporting witnesses to execute affidavits to substantiate the complaints.

b) After such affidavits have been secured, the investigating officer shall issue an order, attaching thereto a copy
of the affidavits and other supporting documents, directing the respondent to submit, within ten (10) days from
receipt thereof, his counter-affidavits and controverting evidence with proof of service thereof on the complainant.
The complainant may file reply affidavits within ten (10) days after service of the counter-affidavits.

c) If the respondent does not file a counter-affidavit, the investigating officer may consider the comment filed by
him, if any, as his answer to the complaint. In any event, the respondent shall have access to the evidence on
record.

d) No motion to dismiss shall be allowed except for lack of jurisdiction. Neither may a motion for a bill of
particulars be entertained. If respondent desires any matter in the complainant's affidavit to be clarified, the
particularization thereof may be done at the time of clarificatory questioning in the manner provided in paragraph
(f) of this section.

e) If the respondent cannot be served with the order mentioned in paragraph 6 hereof, or having been served, does
not comply therewith, the complaint shall be deemed submitted for resolution on the basis of the evidence on
record.
 f) If, after the filing of the requisite affidavits and their supporting evidences, there are facts material to the case
which the investigating officer may need to be clarified on, he may conduct a clarificatory hearing during which
the parties shall be afforded the opportunity to be present but without the right to examine or cross-examine the
witness being questioned. Where the appearance of the parties or witnesses is impracticable, the clarificatory
questioning may be conducted in writing, whereby the questions desired to be asked by the investigating officer or
a party shall be reduced into writing and served on the witness concerned who shall be required to answer the
same in writing and under oath.

g) Upon the termination of the preliminary investigation, the investigating officer shall forward the records of the
case together with his resolution to the designated authorities for their appropriate action thereon.

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 Sandiganbayan, or the proper Deputy Ombudsman in all
other cases.

In what passes off as application of the foregoing rules, all that petitioners were asked to do was merely to file their
comment upon every allegation of the complaint in Civil Case No. 20,550-91 in the Regional Trial Court (RTC) and on the
COA Special Audit Report. The comment referred to in Section 2(b) Rule II, of A.O. No. 07 is not part of or is equivalent to
the preliminary investigation contemplated in Sec. 4, Rule II, of the same Administrative Order. A plain reading of Sec. 2
would convey the idea that upon evaluation of the complaint, the investigating officer may recommend its outright
dismissal for palpable want of merit; otherwise, or if the complaint appears to have some merit, the investigator may
recommend action under any of those enumerated from (b) to (f), that is, the investigator may recommend that the
complaint be: referred to respondent for comment, or endorsed to the proper government office or agency which has
jurisdiction over the case; or forwarded to the appropriate office or official for fact-finding investigation; or referred for
administrative adjudication; or subjected to preliminary investigation. Now, if the investigator opts to recommend the
filing of a comment by the respondent, it is presumably because he needs more facts and information for further
evaluation of the merits of the complaint. That being done, the investigating officer shall again recommend any one of the
actions enumerated in Section 2, which include the conduct of a preliminary investigation.

A preliminary investigation, on the other hand, takes on an adversarial quality and an entirely different procedure comes
into play. This must be so because the purpose of a preliminary investigation or a previous inquiry of some kind, before an
accused person is placed on trial, is to secure the innocent against hasty, malicious and oppressive prosecution, and to
protect him from an open and public accusation of a crime, from the trouble, expenses and anxiety of public trial. 18 It is
also intended to protect the state from having to conduct useless and expensive trials. 19While the right is statutory rather
than constitutional in its fundament, 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. To deny the accused's
claim to a preliminary investigation would be to deprive him of the full measure of his right to due process. 20

Note that in preliminary investigation, if the complaint is unverified or based only on official reports (which is the
situation obtaining in the case at bar), the complainant is required to submit affidavits to substantiate the complaint. The
investigating officer, thereafter, shall issue an order, to which copies of the complaint-affidavit are attached, requiring the
respondent to submit his counter-affidavits. In the preliminary investigation, what the respondent is required to file is a
counter-affidavit, not a comment. It is only when the respondent fails to file a counter-affidavit may the investigating
officer consider the respondent's comment as the answer to the complaint. Against the foregoing backdrop, there was a
palpable non-observance by the Office of the Ombudsman of the fundamental requirements of preliminary investigation.

Apparently, in the case at bar, the investigating officer considered the filing of petitioner's comment as a substantial
compliance with the requirements of a preliminary investigation. Initially, Graft Investigator Manriquez directed the
members of the Special Audit Team on 9 October 1991 to submit their affidavits relative to SAR No. 91-05. However, on 12
November 1991, before the affidavits were submitted, Manriquez required petitioners to submit their respective comments
on the complaint in the civil case and on Special Audit Report (SAR) 91-05. Even when the required affidavits were filed by
the audit team on 4 December 1991, petitioners were still not furnished copies thereof. The Ombudsman contends that
failure to provide petitioners the complaint-affidavits is immaterial since petitioners were well aware of the existence of
the civil complaint and SAR No. 91-05. We find the Ombudsman's reasoning flawed. The civil complaint and the COA
Special Audit Report are not equivalent to the complaint-affidavits required by the rules. Moreover, long before petitioners
were directed to file their comments, the civil complaint (Civil Case No. 20,550-91) was rendered moot and academic and,
accordingly, dismissed following the mutual cancellation of the computerization contract. In SAR No. 91-05, on the other
hand, petitioners were merely advised to rescind the subject contract — which was accomplished even before the audit
report came out. In light of these circumstances, the Court cannot blame petitioners for being unaware of the proceedings
conducted against them.

In Olivas vs. Office of the Ombudsman,21 this Court, speaking through Justice Vicente V. Mendoza, emphasized that it is
mandatory requirement for the complainant to submit his affidavit and those of his witnesses before the respondent can
be compelled to submit his counter-affidavits and other supporting documents. Thus:
 Even in investigations looking to the prosecution of a party, Rule I, § 3 can only apply to the general criminal
investigation, which in the case at bar was already conducted by the PCGG. But after the Ombudsman and his
deputies have gathered evidence and their investigation has ceased to be a general exploratory one and they
decide to bring the action against a party, their proceedings become adversary and Rule II 4(a) then applies. This
means that before the respondent can be required to submit counter-affidavits and other supporting documents,
the complaint must submit his affidavit and those of his witnesses. This is true not only of prosecutions of graft
cases under Rep. Act No. 3019 but also of actions for the recovery of unexplained wealth under Rep. Act No. 1379,
because § 2 of this latter law requires that before a petition is filed there must be a "previous inquiry similar to
preliminary investigation in criminal cases."

Indeed, since a preliminary investigation is designed to screen cases for trial, only evidence may be considered.
While reports and even raw information may justify the initiation of an investigation, the stage of preliminary
investigation can be held only after sufficient evidence has been gathered and evaluated warranting the eventual
prosecution of the case in court. As this Court held in Cojuangco, Jr. v. PCGG:

Although such a preliminary investigation is not a trial and is not intended to usurp the function
of the trial court, it is not a casual affair. The officer conducting the same investigates or inquires
into the facts concerning the commission of the crime with the end in view of determining
whether or not an information may be prepared against the accused. Indeed, a preliminary
investigation is in effect a realistic judicial appraisal of the merits of the case. Sufficient proof of
the guilt of the accused must be adduced so that when the case is tried, the trial court may not be
bound as a matter of law to order an acquittal. A preliminary investigation has then been called a
judicial inquiry. It is a judicial proceeding. An act becomes judicial when there is opportunity to
be heard and for the production and weighing of evidence, and a decision is rendered thereof.

II

Compounding the deprivation of petitioners of their right to a preliminary investigation was the undue and unreasonable
delay in the termination of the irregularly conducted preliminary investigation. Petitioners' manifestation adopting the
comments of their co-respondents was filed on 18 February 1992. However, it was only on 22 February 1996 or four (4)
years later, that petitioners received a memorandum dated 8 February 1996 submitted by Special Prosecutor Officer I
Lemuel M. De Guzman recommending the filing of information against them for violation of Sec. 3(g) of R.A. No. 3019
(Anti-Graft and Corrupt Practices Act). The inordinate delay in the conduct of the "preliminary investigation" infringed
upon their constitutionally guaranteed right to a speedy disposition of their case.22 In Tatad vs. Sandiganbayan,23 we held
that an undue delay of close to three (3) years in the termination of the preliminary investigation in the light of the
circumstances obtaining in that case warranted the dismissal of the case:

We find the long delay in the termination of the preliminary investigation by the Tanodbayan in the instant case to
be violative of the constitutional right of the accused to due process. Substantial adherence to the requirements of
the law governing the conduct of preliminary investigation, including substantial compliance with the time
limitation prescribed by the law for the resolution of the case by the prosecutor, is part of the procedural due
process constitutionally guaranteed by the fundamental law. Not only under the broad umbrella of the due
process clause, but under the constitutional guarantee of "speedy disposition" of cases as embodied in Section 16
of the Bill of Rights (both in the 1973 and 1987 Constitution), the inordinate delay is violative of the petitioner's
constitutional rights. A delay of close to three (3) years can not be deemed reasonable or justifiable in the light of
the circumstances obtaining in the case at bar. We are not impressed by the attempt of the Sandiganbayan to
sanitize the long delay by indulging in the speculative assumption that "the delay may be due to a painstaking and
grueling scrutiny by the Tanodbayan as to whether the evidence presented during the preliminary investigation
merited prosecution of a former high-ranking government official." In the first place, such a statement suggests a
double standard of treatment, which must be emphatically rejected. Secondly, three out of the five charges against
the petitioner were for his alleged failure to file his sworn statement of assets and liabilities required by Republic
Act No. 3019, which certainly did not involve complicated legal and factual issues necessitating such "painstaking
and grueling scrutiny" as would justify a delay of almost three years in terminating the preliminary investigation.
The other two charges relating to alleged bribery and alleged giving of unwarranted benefits to a relative, while
presenting more substantial legal and factual issues, certainly do not warrant or justify the period of three years,
which it took the Tanodbayan to resolve the case.

It has been suggested that the long delay in terminating the preliminary investigation should not be deemed fatal,
for even the complete absence of a preliminary investigation does not warrant dismissal of the information. True
— but the absence of a preliminary investigation can be corrected by giving the accused such investigation. But an
undue delay in the conduct of the preliminary investigation can not be corrected, for until now, man has not yet
invented a device for setting back time.

In the recent case of Angchangco, Jr. vs. Ombudsman,24 the Court upheld Angchangco's right to the speedy disposition of
his case. Angchangco was a sheriff in the Regional Trial Court of Agusan del Norte and Butuan City. In 1990 criminal
complaints were filed against him which remained pending before the Ombudsman even after his retirement in 1994. The
Court thus ruled:

Here, the Office of the Ombudsman, due to its failure to resolve the criminal charges against petitioner for more
than six years, has transgressed on the constitutional right of petitioner to due process and to a speedy
disposition of the cases against him, as well as the Ombudsman's own constitutional duty to act promptly on
complaints filed before it. For all these past 6 years, petitioner has remained under a cloud, and since his
retirement in September 1994, he has been deprived of the fruits of his retirement after serving the government
for over 42 years all because of the inaction of respondent Ombudsman. If we wait any longer, it may be too late
for petitioner to receive his retirement benefits, not to speak of clearing his name. This is a case of plain injustice
which calls for the issuance of the writ prayed for. 25

We are not persuaded by the Ombudsman's argument that the Tatad ruling does not apply to the present case which is not
politically motivated unlike the former, pointing out the following findings of the Court in the Tatad decision:

A painstaking review of the facts can not but leave the impression that political motivations played a vital role in
activating and propelling the prosecutorial process in this case. Firstly, the complaint came to life, as it were, only
after petitioner Tatad had a falling out with President Marcos. Secondly, departing from established procedures
prescribed by law for preliminary investigation, which require the submission of affidavits and counter-affidavits
by the complainant and the respondent and their witnesses, the Tanodbayan referred the complaint to the
Presidential Security Command for fact-finding investigation and report.

We find such blatant departure from the established procedure as a dubious, but revealing attempt to involve an
office directly under the President in the prosecutorial process, lending credence to the suspicion that the
prosecution was politically motivated. We cannot emphasize too strongly that prosecutors should not allow, and
should avoid, giving the impression that their noble office is being used or prostituted, wittingly or unwittingly,
for political ends, or other purposes alien to, or subversive of, the basic and fundamental objective observing the
interest of justice evenhandedly, without fear or favor to any and all litigants alike whether rich or poor, weak or
strong, powerless or mighty. Only by strict adherence to the established procedure may be public's perception of
the impartiality of the prosecutor be enhanced. 26

The Ombudsman endeavored to distinguish the present suit from the Angchangco case by arguing that in the latter,
Angchangco filed several motions for early resolution, implying that in the case at bar petitioners were not as vigilant in
asserting or protecting their rights.

We disagree. The constitutional right to speedy disposition of cases does not come into play only when political
considerations are involved. The Constitution makes no such distinction. While political motivation in Tatad may have
been a factor in the undue delay in the termination of the preliminary investigation therein to justify the invocation of
their right to speedy disposition of cases, the particular facts of each case must be taken into consideration in the grant of
the relief sought. In the Tatad case, we are reminded:

In a number of cases, this Court has not hesitated to grant the so-called "radical relief" and to spare the accused
from undergoing the rigors and expense of a full-blown trial where it is clear that he has been deprived of due
process of law or other constitutionally guaranteed rights. Of course, it goes without saying that in the application
of the doctrine enunciated in those cases, particular regard must be taken of the facts and circumstances peculiar
to its case. 27

In Alviso vs. Sandiganbayan,28 the Court observed that the concept of speedy disposition of cases "is a relative term and
must necessarily be a flexible concept" and that the factors that may be considered and balanced are the "length of the
delay, the assertion or failure to assert such right by the accused, and the prejudice caused by the delay."

Petitioners in this case, however, could not have urged the speedy resolution of their case because they were completely
unaware that the investigation against them was still on-going. Peculiar to this case, we reiterate, is the fact that
petitioners were merely asked to comment, and not file counter-affidavits which is the proper procedure to follow in a
preliminary investigation. After giving their explanation and after four long years of being in the dark, petitioners,
naturally, had reason to assume that the charges against them had already been dismissed.

On the other hand, the Office of the Ombudsman failed to present any plausible, special or even novel reason which could
justify the four-year delay in terminating its investigation. Its excuse for the delay — the many layers of review that the
case had to undergo and the meticulous scrutiny it had to entail — has lost its novelty and is no longer appealing, as was
the invocation in the Tatad case. The incident before us does not involve complicated factual and legal issues, specially in
view of the fact that the subject computerization contract had been mutually cancelled by the parties thereto even before
the Anti-Graft League filed its complaint.
The Office of the Ombudsman capitalizes on petitioners' three motions for extension of time to file comment which it
imputed for the delay. However, the delay was not caused by the motions for extension. The delay occurred after
petitioners filed their comment. Between 1992 to 1996, petitioners were under no obligation to make any move because
there was no preliminary investigation within the contemplation of Section 4, Rule II of A.O. No. 07 to speak of in the first
place.

III

Finally, under the facts of the case, there is no basis in law or in fact to charge petitioners for violation of Sec. 3(g) of R.A.
No. 3019. To establish probable cause against the offender for violation of Sec. 3(g), the following elements must be
present: (1) the offender is a public officer; (2) he entered into a contract or transaction in behalf of the government; and
(3) the contract or transaction is grossly and manifestly disadvantageous to the government. The second element of the
crime — that the accused public officers entered into a contract in behalf of the government — is absent. The
computerization contract was rescinded on 6 May 1991 before SAR No. 91-05 came out on 31 May 1991 and before the
Anti-Graft League filed its complaint with the Ombudsman on 1 August 1991. Hence, at that time the Anti-Graft League
instituted their complaint and the Ombudsman issued its Order on 12 November 1991, there was no longer any contract to
speak of. The contract, after 6 May 1991 became in contemplation of law, non-existent, as if no contract was ever executed.

WHEREFORE, premises considered, the petition is GRANTED and Criminal Case No. 23193 is hereby DISMISSED. The
temporary restraining order issued on 4 September 1997 is made PERMANENT.

SO ORDERED.
G.R. No. 101837 February 11, 1992

ROLITO GO y TAMBUNTING, petitioner,

vs.
THE COURT OF APPEALS, THE HON. BENJAMIN V. PELAYO, Presiding Judge, Branch 168, Regional Trial Court, NCJR
Pasig, M.M., and PEOPLE OF THE PHILIPPINES, respondents.

FELICIANO, J.:

According to the findings of the San Juan Police in their Investigation Report, 1 on 2 July 1991, Eldon Maguan was driving
his car along Wilson St., San Juan, Metro Manila, heading towards P. Guevarra St. Petitioner entered Wilson St., where it is a
one-way street and started travelling in the opposite or "wrong" direction. At the corner of Wilson and J. Abad Santos Sts.,
petitioner's and Maguan's cars nearly bumped each other. Petitioner alighted from his car, walked over and shot Maguan
inside his car. Petitioner then boarded his car and left the scene. A security guard at a nearby restaurant was able to take
down petitioner's car plate number. The police arrived shortly thereafter at the scene of the shooting and there retrieved
an empty shell and one round of live ammunition for a 9 mm caliber pistol. Verification at the Land Transportation Office
showed that the car was registered to one Elsa Ang Go.

The following day, the police returned to the scene of the shooting to find out where the suspect had come from; they
were informed that petitioner had dined at Cravings Bake Shop shortly before the shooting. The police obtained a facsimile
or impression of the credit card used by petitioner from the cashier of the bake shop. The security guard of the bake shop
was shown a picture of petitioner and he positively identified him as the same person who had shot Maguan. Having
established that the assailant was probably the petitioner, the police launched a manhunt for petitioner.

On 8 July 1991, petitioner presented himself before the San Juan Police Station to verify news reports that he was being
hunted by the police; he was accompanied by two (2) lawyers. The police forthwith detained him. An eyewitness to the
shooting, who was at the police station at that time, positively identified petitioner as the gunman. That same day, the
police promptly filed a complaint for frustrated homicide 2 against petitioner with the Office of the Provincial Prosecutor
of Rizal. First Assistant Provincial Prosecutor Dennis Villa Ignacio ("Prosecutor") informed petitioner, in the presence of his
lawyers, that he could avail himself of his right to preliminary investigation but that he must first sign a waiver of the
provisions of Article 125 of the Revised Penal Code. Petitioner refused to execute any such waiver.

On 9 July 1991, while the complaint was still with the Prosecutor, and before an information could be filed in court, the
victim, Eldon Maguan, died of his gunshot wound(s).

Accordingly, on 11 July 1991, the Prosecutor, instead of filing an information for frustrated homicide, filed an information
for murder 3 before the Regional Trial Court. No bail was recommended. At the bottom of the information, the Prosecutor
certified that no preliminary investigation had been conducted because the accused did not execute and sign a waiver of
the provisions of Article 125 of the Revised Penal Code.

In the afternoon of the same day, 11 July 1991, counsel for petitioner filed with the Prosecutor an omnibus motion for
immediate release and proper preliminary investigation,4 alleging that the warrantless arrest of petitioner was unlawful
and that no preliminary investigation had been conducted before the information was filed. Petitioner also prayed that he
be released on recognizance or on bail. Provincial Prosecutor Mauro Castro, acting on the omnibus motion, wrote on the
last page of the motion itself that he interposed no objection to petitioner being granted provisional liberty on a cash bond
of P100,000.00.

On 12 July 1991, petitioner filed an urgent ex-parte motion for special raffle 5 in order to expedite action on the
Prosecutor's bail recommendation. The case was raffled to the sala of respondent Judge, who, on the same date, approved
the cash bond 6 posted by petitioner and ordered his release. 7 Petitioner was in fact released that same day.

On 16 July 1991, the Prosecutor filed with the Regional Trial Court a motion for leave to conduct preliminary
investigation8 and prayed that in the meantime all proceedings in the court be suspended. He stated that petitioner had
filed before the Office of the Provincial Prosecutor of Rizal an omnibus motion for immediate release and preliminary
investigation, which motion had been granted by Provincial Prosecutor Mauro Castro, who also agreed to recommend cash
bail of P100,000.00. The Prosecutor attached to the motion for leave a copy of petitioner's omnibus motion of 11 July
1991.

Also on 16 July 1991, the trial court issued an Order 9 granting leave to conduct preliminary investigation and cancelling
the arraignment set for 15 August 1991 until after the prosecution shall have concluded its preliminary investigation.

On 17 July 1991, however, respondent Judge motu proprio issued an Order, 10 embodying the following: (1) the 12 July
1991 Order which granted bail was recalled; petitioner was given 48 hours from receipt of the Order to surrender himself;
(2) the 16 July 1991 Order which granted leave to the prosecutor to conduct preliminary investigation was recalled and
cancelled; (3) petitioner's omnibus motion for immediate release and preliminary investigation dated 11 July 1991 was
treated as a petition for bail and set for hearing on 23 July 1991.

On 19 July 1991, petitioner filed a petition for certiorari, prohibition and mandamus before the Supreme Court assailing
the 17 July 1991 Order, contending that the information was null and void because no preliminary investigation had been
previously conducted, in violation of his right to due process. Petitioner also moved for suspension of all proceedings in
the case pending resolution by the Supreme Court of his petition; this motion was, however, denied by respondent Judge.

On 23 July 1991, petitioner surrendered to the police.

By a Resolution dated 24 July 1991, this Court remanded the petition for certiorari, prohibition and mandamus to the
Court of Appeals.

On 16 August 1991, respondent Judge issued an order in open court setting the arraignment of petitioner on 23 August
1991.

On 19 August 1991, petitioner filed with the Court of Appeals a motion to restrain his arraignment.

On 23 August 1991, respondent judge issued a Commitment Order directing the Provincial Warden of Rizal to admit
petitioner into his custody at the Rizal Provincial Jail. On the same date, petitioner was arraigned. In view, however, of his
refusal to enter a plea, the trial court entered for him a plea of not guilty. The Trial court then set the criminal case for
continuous hearings on 19, 24 and 26 September; on 2, 3, 11 and 17 October; and on 7, 8, 14, 15, 21 and 22 November
1991. 11

On 27 August 1991, petitioner filed a petition for habeas corpus 12 in the Court of Appeals. He alleged that in view of
public respondent's failure to join issues in the petition for certiorari earlier filed by him, after the lapse of more than a
month, thus prolonging his detention, he was entitled to be released on habeas corpus.

On 30 August 1991, the Court of Appeals issued the writ of habeas corpus. 13 The petition for certiorari, prohibition
and mandamus, on the one hand, and the petition for habeas corpus, upon the other, were subsequently consolidated in
the Court of Appeals.

The Court of Appeals, on 2 September 1991, issued a resolution denying petitioner's motion to restrain his arraignment on
the ground that that motion had become moot and academic.

On 19 September 1991, trial of the criminal case commenced and the prosecution presented its first witness.

On 23 September 1991, the Court of Appeals rendered a consolidated decision 14

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

a. Petitioner's warrantless arrest was valid because the offense for which he was arrested and charged had
been "freshly committed." His identity had been established through investigation. At the time he showed
up at the police station, there had been an existing manhunt for him. During the confrontation at the San
Juan Police Station, one witness positively identified petitioner as the culprit.

b. Petitioner's act of posting bail constituted waiver of any irregularity attending his arrest. He waived his
right to preliminary investigation by not invoking it properly and seasonably under the Rules.

c. The trial court did not abuse its discretion when it issued the 17 July 1991 Order because the trial court
had the inherent power to amend and control its processes so as to make them conformable to law and
justice.

d. Since there was a valid information for murder against petitioner and a valid commitment order (issued
by the trial judge after petitioner surrendered to the authorities whereby petitioner was given to the
custody of the Provincial Warden), the petition for habeas corpus could not be granted.

On 3 October 1991, the prosecution presented three (3) more witnesses at the trial. Counsel for petitioner also filed a
"Withdrawal of Appearance" 15 with the trial court, with petitioner's conformity.

On 4 October 1991, the present Petition for Review on Certiorari was filed. On 14 October 1991, the Court issued a
Resolution directing respondent Judge to hold in abeyance the hearing of the criminal case below until further orders from
this Court.
In this Petition for Review, two (2) principal issues need to be addressed: first, whether or not a lawful warrantless arrest
had been effected by the San Juan Police in respect of petitioner Go; and second, whether petitioner had effectively waived
his right to preliminary investigation. We consider these issues seriatim.

In respect of the first issue, the Solicitor General argues that under the facts of the case, petitioner had been validly
arrested without warrant. Since petitioner's identity as the gunman who had shot Eldon Maguan on 2 July 1991 had been
sufficiently established by police work, petitioner was validly arrested six (6) days later at the San Juan Police Station. The
Solicitor General invokes Nazareno v. Station Commander, etc., et al., 16 one of the seven (7) cases consolidated with In the
Matter of the Petition for Habeas Corpus of Roberto Umil, etc., v. Ramos, et al. 17 where a majority of the Court upheld a
warrantees arrest as valid although effected fourteen (14) days after the killing in connection with which Nazareno had
been arrested. Accordingly, in the view of the Solicitor General, the provisions of Section 7, Rule 112 of the Rules of Court
were applicable and because petitioner had declined to waive the provisions of Article 125 of the Revised Penal Code, the
Prosecutor was legally justified in filing the information for murder even without preliminary investigation.

On the other hand, petitioner argues that he was not lawfully arrested without warrant because he went to the police
station six (6) days after the shooting which he had allegedly perpetrated. Thus, petitioner argues, the crime had not been
"just committed" at the time that he was arrested. Moreover, none of the police officers who arrested him had been an
eyewitness to the shooting of Maguan and accordingly none had the "personal knowledge" required for the lawfulness of a
warrantees arrest. Since there had been no lawful warrantless arrest. Section 7, Rule 112 of the Rules of Court which
establishes the only exception to the right to preliminary investigation, could not apply in respect of petitioner.

The reliance of both petitioner and the Solicitor General upon Umil v. Ramos is, in the circumstances of this case,
misplaced. In Umil v. Ramos, by an eight-to-six vote, the Court sustained the legality of the warrantless arrests of
petitioners made from one (1) to fourteen days after the actual commission of the offenses, upon the ground that such
offenses constituted "continuing crimes." Those offenses were subversion, membership in an outlawed organization like
the New People's Army, etc. In the instant case, the offense for which petitioner was arrested was murder, an offense
which was obviously commenced and completed at one definite location in time and space. No one had pretended that the
fatal shooting of Maguan was a "continuing crime."

Secondly, we do not believe that the warrantees "arrest" or detention of petitioner in the instant case falls within the terms
of Section 5 of Rule 113 of the 1985 Rules on Criminal Procedure which provides as follows:

Sec. 5 Arrest without warrant; when lawful. — A peace officer or a private person may, without warrant,
arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is
attempting to commit an offense;

(b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating
that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place
where he is serving final judgment or temporarily confined while his case is pending, or has escaped while
being transferred from one confinement to another.

In cases falling under paragraphs (a) and (b) hereof, the person arrested without a warrant shall be
forthwith delivered to the nearest police station or jail, and he shall be proceed against in accordance with
Rule 112, Section 7.

Petitioner's "arrest" took place six (6) days after the shooting of Maguan. The "arresting" officers obviously were not
present, within the meaning of Section 5(a), at the time petitioner had allegedly shot Maguan. Neither could the "arrest"
effected six (6) days after the shooting be reasonably regarded as effected "when [the shooting had] in fact just been
committed" within the meaning of Section 5(b). Moreover, none of the "arresting" officers had any "personal knowledge" of
facts indicating that petitioner was the gunman who had shot Maguan. The information upon which the police acted had
been derived from statements made by alleged eyewitnesses to the shooting — one stated that petitioner was the gunman;
another was able to take down the alleged gunman's car's plate number which turned out to be registered in petitioner's
wife's name. That information did not, however, constitute "personal knowledge." 18

It is thus clear to the Court that there was no lawful warrantless arrest of petitioner within the meaning of Section 5 of
Rule 113. It is clear too that Section 7 of Rule 112, which provides:

Sec. 7 When accused lawfully arrested without warrant. — When a person is lawfully arrested without a
warrant for an offense cognizable by the Regional Trial Court the complaint or information may be filed
 by the offended party, peace officer or fiscal without a preliminary investigation having been first
conducted, on the basis of the affidavit of the offended party or arresting office or person

However, before the filing of such complaint or information, the person arrested may ask for a preliminary
investigation by a proper officer in accordance with this Rule, but he must sign a waiver of the provisions
of Article 125 of the Revised Penal Code, as amended, with the assistance of a lawyer and in case of non-
availability of a lawyer, a responsible person of his choice. Notwithstanding such waiver, he may apply for
bail as provided in the corresponding rule and the investigation must be terminated within fifteen (15)
days from its inception.

If the case has been filed in court without a preliminary investigation having been first conducted, the
accused may within five (5) days from the time he learns of the filing of the information, ask for a
preliminary investigation with the same right to adduce evidence in his favor in the manner prescribed in
this Rule. (Emphasis supplied)

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

Turning to the second issue of whether or not petitioner had waived his right to preliminary investigation, we note that
petitioner had from the very beginning demanded that a preliminary investigation be conducted. As earlier pointed out, on
the same day that the information for murder was filed with the Regional Trial Court, petitioner filed with the Prosecutor
an omnibus motion for immediate release and preliminary investigation. The Solicitor General contends that that omnibus
motion should have been filed with the trial court and not with the Prosecutor, and that the petitioner should accordingly
be held to have waived his right to preliminary investigation. We do not believe that waiver of petitioner's statutory right
to preliminary investigation may be predicated on such a slim basis. The preliminary investigation was to be conducted by
the Prosecutor, not by the Regional Trial Court. It is true that at the time of filing of petitioner's omnibus motion, the
information for murder had already been filed with the Regional Trial Court: it is not clear from the record whether
petitioner was aware of this fact at the time his omnibus motion was actually filed with the Prosecutor. In Crespo
v. Mogul, 19 this Court held:

The preliminary investigation conducted by the fiscal for the purpose of determining whether a prima
facie case exists to warranting the prosecution of the accused is terminated upon the filing of the
information in the proper court. In turn, as above stated, the filing of said information sets in motion the
criminal action against the accused in Court. Should the fiscal find it proper to conduct a reinvestigation of
the case, at such stage, the permission of the Court must be secured. After such reinvestigation the finding
and recommendations of the fiscal should be submitted to the Court for appropriate action.While it is true
that the fiscal has the quasi-judicial discretion to determine whether or not a criminal case should be filed
in court or not, once the case had already been brought to Court whatever disposition the fiscal may feel
should be proper in the case thereafter should be addressed for the consideration of the Court. The only
qualification is that the action of the Court must not impair the substantial rights of the accused., or the
right of the People to due process of law.

xxx xxx xxx

The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any
disposition of the case [such] as its dismissal or the conviction or acquittal of the accused rests in the sound
discretion of the Court. Although the fiscal retains the direction and control of the prosecution of criminal
cases even while the case is already in Court he cannot impose his opinion on the trial court. The Court is
the best and sole judge on what to do with the case before it. . . . 20 (Citations omitted; emphasis supplied)

Nonetheless, since petitioner in his omnibus motion was asking for preliminary investigation and not for a re-
investigation (Crespo v. Mogul involved a re-investigation), and since the Prosecutor himself did file with the trial
court, on the 5th day after filing the information for murder, a motion for leave to conduct preliminary
investigation (attaching to his motion a copy of petitioner's omnibus motion), we conclude that petitioner's
omnibus motion was in effect filed with the trial court. What was crystal clear was that petitioner did ask for a
preliminary investigation on the very day that the information was filed without such preliminary investigation,
 and that the trial court was five (5) days later apprised of the desire of the petitioner for such preliminary
investigation. Finally, the trial court did in fact grant the Prosecutor's prayer for leave to conduct preliminary
investigation. Thus, even on the (mistaken) supposition apparently made by the Prosecutor that Section 7 of Rule
112 of the Revised Court was applicable, the 5-day reglementary period in Section 7, Rule 112 must be held to
have been substantially complied with.

We believe and so hold that petitioner did not waive his right to a preliminary investigation. While that right is statutory
rather than constitutional in its fundament, since it has in fact been established by statute, it is a component part of due
process in criminal justice. 21 The right to have a preliminary investigation conducted before being bound over to trial for a
criminal offense and hence formally at risk of incarceration or some other penalty, is not a mere formal or technical right;
it is a substantive right. The accused in a criminal trial is inevitably exposed to prolonged anxiety, aggravation, humiliation,
not to speak of expense; the right to an opportunity to avoid a process painful to any one save, perhaps, to hardened
criminals, is a valuable right. To deny petitioner's claim to a preliminary investigation would be to deprive him the full
measure of his right to due process.

The question may be raised whether petitioner still retains his right to a preliminary investigation in the instant case
considering that he was already arraigned on 23 August 1991. The rule is that the right to preliminary investigation is
waived when the accused fails to invoke it before or at the time of entering a plea at arraignment. 22 In the instant case,
petitioner Go had vigorously insisted on his right to preliminary investigation before his arraignment. At the time of his
arraignment, petitioner was already before the Court of Appeals on certiorari, prohibition and mandamusprecisely asking
for a preliminary investigation before being forced to stand trial.

Again, in the circumstances of this case, we do not believe that by posting bail petitioner had waived his right to
preliminary investigation. In People v. Selfaison, 23 we did hold that appellants there had waived their right to preliminary
investigation because immediately after their arrest, they filed bail and proceeded to trial "without previously claiming that
they did not have the benefit of a preliminary investigation." 24 In the instant case, petitioner Go asked for release on
recognizance or on bail and for preliminary investigation in one omnibus motion. He had thus claimed his right to
preliminary investigation before respondent Judge approved the cash bond posted by petitioner and ordered his release on
12 July 1991. Accordingly, we cannot reasonably imply waiver of preliminary investigation on the part of petitioner. In
fact, when the Prosecutor filed a motion in court asking for leave to conduct preliminary investigation, he clearly if
impliedly recognized that petitioner's claim to preliminary investigation was a legitimate one.

We would clarify, however, that contrary to petitioner's contention the failure to accord preliminary investigation, while
constituting a denial of the appropriate and full measure of the statutory process of criminal justice, did not impair the
validity of the information for murder nor affect the jurisdiction of the trial court. 25

It must also be recalled that the Prosecutor had actually agreed that petitioner was entitled to bail. This was equivalent to
an acknowledgment on the part of the Prosecutor that the evidence of guilt then in his hands was not strong. Accordingly,
we consider that the 17 July 1991 order of respondent Judge recalling his own order granting bail and requiring petitioner
to surrender himself within forty-eight (48) hours from notice, was plainly arbitrary considering that no evidence at all —
and certainly no new or additional evidence — had been submitted to respondent Judge that could have justified the recall
of his order issued just five (5) days before. It follows that petitioner was entitled to be released on bail as a matter of
right.

The final question which the Court must face is this: how does the fact that, in the instant case, trial on the merits has
already commenced, the Prosecutor having already presented four (4) witnesses, impact upon, firstly, petitioner's right to a
preliminary investigation and, secondly, petitioner's right to be released on bail? Does he continue to be entitled to have a
preliminary investigation conducted in respect of the charge against him? Does petitioner remain entitled to be released
on bail?

Turning first to the matter of preliminary investigation, we consider that petitioner remains entitled to a preliminary
investigation although trial on the merits has already began. Trial on the merits should be suspended or held in abeyance
and a preliminary investigation forthwith accorded to petitioner. 26 It is true that the Prosecutor might, in view of the
evidence that he may at this time have on hand, conclude that probable cause exists; upon the other hand, the Prosecutor
conceivably could reach the conclusion that the evidence on hand does not warrant a finding of probable cause. In any
event, the constitutional point is that petitioner was not accorded what he was entitled to by way of procedural due
process. 27 Petitioner was forced to undergo arraignment and literally pushed to trial without preliminary investigation,
with extraordinary haste, to the applause from the audience that filled the courtroom. If he submitted to arraignment at
trial, petitioner did so "kicking and screaming," in a manner of speaking . During the proceedings held before the trial
court on 23 August 1991, the date set for arraignment of petitioner, and just before arraignment, counsel made very clear
petitioner's vigorous protest and objection to the arraignment precisely because of the denial of preliminary
investigation. 28 So energetic and determined were petitioner's counsel's protests and objections that an obviously angered
court and prosecutor dared him to withdraw or walkout, promising to replace him with counsel de oficio. During the trial,
before the prosecution called its first witness, petitioner through counsel once again reiterated his objection to going to
trial without preliminary investigation: petitioner's counsel made of record his "continuing objection." 29 Petitioner had
promptly gone to the appellate court on certiorari and prohibition to challenge the lawfulness of the procedure he was
being forced to undergo and the lawfulness of his detention.30 If he did not walk out on the trial, and if he cross-examined
the prosecution's witnesses, it was because he was extremely loath to be represented by counsel de oficio selected by the
trial judge, and to run the risk of being held to have waived also his right to use what is frequently the only test of truth in
the judicial process.

In respect of the matter of bail, we similarly believe and so hold that petitioner remains entitled to be released on bail as a
matter of right. Should the evidence already of record concerning petitioner's guilt be, in the reasonable belief of the
Prosecutor, strong, the Prosecutor may move in the trial court for cancellation of petitioner's bail. It would then be up to
the trial court, after a careful and objective assessment of the evidence on record, to grant or deny the motion for
cancellation of bail.

To reach any other conclusions here, that is, to hold that petitioner's rights to a preliminary investigation and to bail were
effectively obliterated by evidence subsequently admitted into the record would be to legitimize the deprivation of due
process and to permit the Government to benefit from its own wrong or culpable omission and effectively to dilute
important rights of accused persons well-nigh to the vanishing point. It may be that to require the State to accord
petitioner his rights to a preliminary investigation and to bail at this point, could turn out ultimately to be largely a
ceremonial exercise. But the Court is not compelled to speculate. And, in any case, it would not be idleceremony; rather, it
would be a celebration by the State of the rights and liberties of its own people and a re-affirmation of its obligation and
determination to respect those rights and liberties.

ACCORDINGLY, the Court resolved to GRANT the Petition for Review on Certiorari. The Order of the trial court dated 17
July 1991 is hereby SET ASIDE and NULLIFIED, and the Decision of the Court of Appeals dated 23 September 1991 hereby
REVERSED.

The Office of the Provincial Prosecutor is hereby ORDERED to conduct forthwith a preliminary investigation of the charge
of murder against petitioner Go, and to complete such preliminary investigation within a period of fifteen (15) days from
commencement thereof. The trial on the merits of the criminal case in the Regional Trial Court shall be SUSPENDED to
await the conclusion of the preliminary investigation.

Meantime, petitioner is hereby ORDERED released forthwith upon posting of a cash bail bond of One Hundred Thousand
Pesos (P100,000.00). This release shall be without prejudice to any lawful order that the trial court may issue, should the
Office of the Provincial Prosecutor move for cancellation of bail at the conclusion of the preliminary investigation.

No pronouncement as to costs. This Decision is immediately executory.

SO ORDERED.

G.R. No. L-14732 January 28, 1961

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
JOSEFINO G. SELFAISON, NEMESIO DALISAY, DOMINGO URETA and BERNARDO BAUTISTA, defendants-appellants.

Office of the Solicitor General for plaintiff-appellee.

Pacifico A. Dalisay and Virgilio S. Patricio for defendants-appellants.

GUTIERREZ DAVID, J.:

Appellants Josefino G. Selfaison, Nemesio Dalisay, Domingo Ureta and Bernardo Bautista — in company with Arsenio
Amacio, Reynaldo Bautista, Domingo Salde and Amrafil Dalisay who were alleged to be still at large were accused in an
amended information of the crime of robbery with rape in the Court of First Instance of Capiz. After trial, Josefino G.
Selfaison was found guilty and sentenced to suffer the penalty of reclusion perpetua, to indemnify the complainants,
Angelita Sinag and Angelina Maghibon, the amounts of P212.50 and P110, respectively, and to pay one-fourth of the cost.
The other three accused namely, Nemesio Dalisay, Domingo Ureta, and Bernardo Bautista, were found guilty of the crime
of rape and sentenced to suffer an indeterminate penalty of 12 years of prision mayor to 17 years, 4 months and 1 day
of reclusion temporal, plus proportionate costs. From the judgment of conviction, the four named accused appealed to the
Court of Appeals, but in view of the penalty imposed, that court certified the case to this Court.

The evidence for the prosecution shows that on April 6, 1954, the complainants Angelina Maghibon, 19 years old, and
Angelita Sinag, 16, of barrio Jibon and Kumalaskas respectively, of the town of Nabas, Capiz, boarded the "S.S. General del
Pilar" bound for Capiz. The young girls, who had worked for three years as housemaids in Manila, were going home with
their savings, Angelina during that period having been able to save P110.0 and Angelita, P206. At 4 o'clock in the afternoon
of the following day, the ship arrived at the port of New Washington, Capiz. At the dock, the two girls saw an old
acquaintance, Josefino G. Selfaison, and boarded the passenger bound for the town of truck he was driving, which was
Nabas. The truck started its journey at about 5 o'clock and passed through several towns picking up and letting out
passengers along the way. At barrio Ondoy, municipality of lbajay, Selfaison stopped the truck, got off and went to his
house. After a short while, he returned accompanied by four men who accommodated themselves on top of the truck.
These men were later identified as Domingo Ureta, Domingo Salde, Amrafil Dalisay and Reynaldo Bautista. The two
complainants wanted to be taken to their respective barrios, but Selfaison informed them that they would have to pay an
additional fare of P5 each. The girls agreed, giving him the money, and Selfaison saw them extract the money from bundles
of paper bills hidden in the garments over their breasts.

With Selfaison still at the wheel, the trip was resumed. In the vehicle then, aside from the two complainants, and Selfaison
at the driver's seat, were two lady passengers, Nemesio Dalisay (the conductor), Bernardo Bautista (the washing") and the
four men on top of the truck. At about 10 o'clock in the evening, the truck arrived at the poblacion of Nabas. It was in this
town that Arsenio Amacio boarded the truck. After discharging his two other lady passengers, Selfaison turned the truck
and drove towards the direction of barrio Ondoy. When the girls noticed this, they became apprehensive and protested.
Selfaison however, drove very fast saying that he had to get something from his house.

At sitio Pulang Data of barrio Solido, a mountainous and isolated place, Selfaison suddenly stopped the truck. He and the
other men then alighted and went to the rear of the truck. After a while, they returned and forced the girls to go down.
Josefino G. Selfaison, Amrafil Dalisay, Reynaldo Bautista and Domingo Ureta pulled Angelita Sinag to one side of the truck,
while Bernardo Bautista, Nemesio Dalisay, Arsenio Amacio and Domingo Salde dragged Angelina Maghibon to the other
side.

Angelita was pushed by Selfaison to the ground. She struggled to free herself and shouted for help, but her hands were
pinned down above her head by Reynaldo Bautista. Domingo Ureta took hold of one of her legs, and as Amrafil Dalisay
held the other, Josefino G. Selfaison raised her clothes, pulled down her panties and succeeded in having sexual
intercourse with her. When he was through, he groped for Angelita's remaining P200 and slapped her, saying that she was
arrogant ("suplada"). Reynaldo Bautista, Domingo Ureta, Amrafil Dalisay and, finally, Arsenic Amacio then took turns in
raping her. Exhausted and with her genitalia bleeding, Angelita slowly stood up, put on her panties and climbed back to
the truck.

Angelina Maghibon suffered the same ordeal. After she was forcibly thrown to the grounds Arsenio Amacio held both of
her hands over her head, while Bernardo Bautista and Domingo Salde held her legs. Helpless and pinned to the ground,
Angelina Maghibon made desperate struggles and frantic calls for help, but her efforts proved futile. Nemesio Dalisay
pulled out her "pedal pusher" and panties and then ravished her. When he was through, he held the girl's hands, while
Arsenio Amacio took his turn. Bernardo Bautista followed Amacio. Then Josefino G. Selfaison came and also had carnal
knowledge of her. When he had finished, he felt for and took Angelina's money amounting to P105, which was wrapped in
a handkerchief fastened to her brassiere.

After everybody had given vent to his lust, Josefino G. Selfaison asked Angelita for the key to her trunk, but the latter
refused. Whereupon, Selfaison broke the trunk open with a stone and took away six pieces of dress materials worth P9, a
can of biscuits and a dozen oranges all worth P3.50. Thereafter, Selfaison drove the girls back to the town of Nabas and
threatened them with death should they say anything about the whole affair. The girls went to the house of one Emma
Dalisay and spent the night there.

In the following morning, Angelita Sinag, accompanied by her brother, reported the incident to the Chief of Police of
Nabas. The latter, however, was skeptical just then a PC lieutenant arrived to whom Angelita narrated her story. After the
other complainant, Angelina Maghibon, was fetched, the officer brought them to the municipal building for questioning. In
the course of the interrogation, Josefino G. Selfaison, who was then driving his passenger truck, was called by the PC
officer and was promptly identified by the girls. When he was asked why he abused the girls, the latter even heard him say
that "devil must have entered his head." On that same day, the girls were examined by a physician. The physical
examination Angelina Maghibon showed "recent laceration of the hymen" and "contusions of the wall of labia minora." The
findings on Angelita Sinag showed "slight laceration at the posterior commissure." Three days later, the girls were again
examined at the provincial hospital and the examining physician made similar findings on their genitals.

On April 21, 1954, Angelita Sinag and Angelina Maghibon filed separate complaints in the Justice of the Peace Court of
Nabas for robbery with rape. Named as defendants were Jose G. Selfaison, Raymundo Dalisay, Arsenio Amacio, Reynaldo
Bautista, Domingo Martinez, Berling Bautista, Amrafil Dalisay and alias Mengoy. After preliminary investigation, warrants
of arrest were issued against the eight accused. As the returns on the said warrants stated that there were no persons
answering to the names of Jose G. Selfaison, Raymundo Dalisay and alias Mengoy, the private prosecutor filed a joint
motion to correct the complaints asking that the names of the accused Jose G. Selfaison be changed to Josefino G.
Selfaison, Raymundo Dalisay to Nemesio Dalisay, Domingo Martinez to Domingo Salde and alias to Domingo Ureta. The
motion was granted by the Justice of the Peace Court of Nabas. Thereafter, Josefino G. Selfaison, Nemesio Dalisay,
Bernardo Bautista and Domingo Ureta were arrested, but the other accused remained at large.

After the records, of both cases were elevated to the Court of First Instance of Capiz, the provincial fiscal there filed the
corresponding informations, but on motion of defense counsel, the cases were consolidated under one amended
information.

At the trial of the case the appellants put up the defense of alibi. Josefino G. Selfaison testified that when the truck arrived
at barrio Ondoy, he ordered one Domingo Martinez to relieve him as driver of the truck because he was feeling tired, sick
and hungry and that after the truck left, he went to bed to rest. Domingo Ureta, on the other hand, declared that he was
the driver of another truck belonging to Josefino G. Selfaison and that after he returned his truck to the garage at about 9
o'clock in the evening, he went to the house of one Ramon Solis at barrio Ondoy and spent the night there. Nemesio
Dalisay, on his part, testified that he was the conductor of the truck driven by Domingo Ureta and that he was included in
the charge because he is the brother-in-law of Josefino G. Selfaison. The other accused, Bernardo Bautista, testified that on
April 7, 1954, he was in his house in barrio Ondoy the whole evening and that while he was then a helper in the truck
driven by Selfaison, his work began only from 6 o'clock in the morning and ended at 12 noon.

The trial court, however, discredited their defense of alibi, and believing the testimony of the witnesses for the
prosecution, rendered the judgment of conviction which is now before us on appeal.

After going over the records of the case, we find that the guilt of the accused, as found by the trial court, has been
established by the evidence beyond reasonable doubt. The defense of alibi interposed by the appellants cannot be allowed
to prevail over the testimony of the offended parties, who positively identified them as four of their assailants. Josefino G.
Selfaison was well known to the complainants because they had previously ridden in his truck when they went to New
Washington in 1951 where they boarded a ship for Manila. They were not personally acquainted with Nemesio Dalisay and
Bernardo Bautista, but these two accused as the conductor and "washing" of the truck, respectively, were constantly seen
by them during the whole trip. With respect to Domingo Ureta, the two girls were able to recollect his features and
recognize him as one of the four men who boarded the truck at barrio Ondoy. The complainants' recognition of the
appellants as their attackers cannot be doubted, for aside from what has already been said, they had during the carnal acts
ample opportunity to scrutinize the faces of the men who did them wrong.

There is no merit in the contention that, on account of the excitement and horrors of the moment, the complainants could
not have identified their attackers and remembered the sequence in which they were raped. It is a natural reaction for
victims of criminal violence to strive to know the identity of their assailants and the manner in which the crime was
committed creates a lasting impression which cannot easily be erased in their memory.

Appellant Josefino G. Selfaison claims that he was included among the accused because the offended parties knew that he
was the owner of three trucks and that they would get nothing if the charge were brought only against the others. The
evidence shows, however, that the complainants knew him only as a truck driver, and not as a wealthy man. Hence, the
charge that the said complainants were prompted by mercenary motives is without basis.

Citing Dr. Anzures' "Lectures on Legal Medicine" which states that an examination within 3 days after intercourse would
reveal the presence of spermatozoa, the appellants underscore the fact that the physical examinations to which the
complainants were subjected to were negative as to the presence of spermatozoa. The absence of such spermatozoa,
however, does not necessarily mean that the complainants had not in fact been raped. The very authority cited states that
such absence does not necessarily mean that the girl subject of the examination has not had any sexual intercourse. It
need hardly be said here that in the crime of rape, the slightest penetration is enough. In the case of the complainants, we
agree with the trial court that the recent lacerations in the hymen and the contusions on the walls of the labia minora, of
their genitals together — with the evidence adduced during the trial — sufficiently show that the copulative act had been
performed by means of force and violence. (U. S. vs. Huertas, 39 Phil 440.) In fact, it is not even necessary that there be a
medical examination of the victim in cases of rape. Whether or not the charge will prosper depends upon the evidence
offered and so long as such evidence convinces the court, a conviction for rape is proper. At any rate, it is not improbable
that the complainants washed or flushed themselves not only for the sake of cleanliness but more particularly in order to
avoid possible conception. It is, indeed, difficult to believe that the complainants, who are very young and unmarried,
would tell a story of defloration, allow the examination of their private parts, and thereafter permit themselves to be the
subject of a public trial, if they were not motivated by an honest desire to have the culprits apprehended and punished.

It is argued that Josefino G. Selfaison, who is a man of means, could not have robbed the two complainants, and to impugn
the credibility of the said complainants, the defense points to the lack of corroboration and to certain inconsistencies in
their testimony. Wealth, however, is not always a badge of good conduct (People vs. Ramos, G.R. No. L-2171, March 4,
1950) and it is not the poor alone that succumb to the impulse to rob. (People vs. Amoco G.R. No. L-3782, August 31, 1951;
People vs. Liagas et al., G.R. No. L-5015.17, May 31, 1957.) As to the alleged inconsistencies or contradictions, we find, after
examining the record, that they exist only in minor details and are not of sufficient magnitude so as to denote a deliberate
intent to utter falsehoods. Such inconsistencies by themselves preclude probable coaching, and far from detracting
anything from the witnesses' credibility, only tend to bolster the probative value of their testimony. (People vs. Duldulao;
People vs. Del Prado, et al., G.R. Nos. 13335-36, November 29, 1960.) In this connection, the trial court, which had the
opportunity to observe the demeanor of the complainants on the witness stand, said:

. . . Barring slight contradictions which are natural in unrehearsed witnesses, there was no act of theirs that betray
their candor and which would give rise to doubt their sincerity and veracity. They were frank and straightforward
in answering question, bereft of artificiality and hesitancy that is easily detected in one who tells a concocted story
...

On the subject of corroboration, the rule in this jurisdiction is well-settled that in crimes of rape the sole testimony of the
offended parties is sufficient to sustain a conviction. (U.S. vs. Ramos, 1 Phil. 81; People vs. Dazo 58 Phil. 421; People vs.
Macaya, et al., G.R. No. L-925, February 27, 1950; People vs. Ganal, et al., G.R. No. L-1990, March 15, 1950.)

The defense also argues that the second warrants for the appellants' arrest were illegally issued because the complaints
were not actually amended. It will be recalled that the prosecution sought to amend the complaints so as to correct the
names of some of the accused who were misnamed therein. The motion to correct or to amend the complaints was granted
by the Justice of the Peace Court, and while no amended complaints were filed anew, we do not think this is a reversible
error, since no substantial right of the accused were prejudiced thereby. Indeed, there was never any doubt as to who were
the persons meant to be accused, and in resorting to the argument that the complaints were not actually amended, the
defense is simply availing itself of a small technicality that does not affect in any manner the rights of the appellants.

The defense finally contends that the appellants were deprived of their right to preliminary investigation. The contention
deserves scant consideration, for nothing appears affirmatively on the record that such preliminary investigation has not
been had. On the other hand, it is presumed that the inferior court proceeded in accordance with law. (People vs. Silos and
Bagano, G.R. No. L-5158, March 28, 1952.) At any rate, appellants appear to have waived such right, because immediately
after their arrest, they filed bonds for their release and subsequently proceeded to trial, without previously claiming that
they did not have the benefit of a preliminary investigation. (People vs. Ricarte, 49 Off. Gaz., 974; People vs. Quinto, 60
Phil. 451; People vs. Moreno, 77 Phil. 548; Bustos vs. Lusero, 46 Off. Gaz. [Supp.] 445.)

The crime committed by appellant Josefino G. Selfaison, is correctly found by the trial court, is robbery with rape, for
which the law impose the penalty of reclusion temporal in its medium period to reclusion perpetua. (Art. 94 [2], Revised
Penal Code.) Considering the aggravating circumstances of nocturnity, use of motor vehicle and superior force without any
mitigating circumstances to offset them, the sentence of reclusion perpetua imposed upon him, plus restitution, is in
accordance with law. As to the other appellants, there being no showing that they took part or were in conspiracy with
appellant Josefino G. Selfaison in robbing the complainants, they were, likewise, correctly convicted of rape, and again
considering the aggravating circumstances above-mentioned, the indeterminate penalty of 12 years of prision mayor to 17
years, 4 months and 1 day of reclusion temporal imposed upon them should, therefore, also be affirmed. As recommended
by the Solicitor General, however, all the appellants Should, in addition to the penalties imposed upon them, also be
sentenced to indemnify, jointly and severally, each of the complainants in the sum of P5,000. (People vs. Demetrio, et al.,
47 Off. Gaz., Supp. 12, p. 23; People vs. De Asis, et al., 61 Phil. 384.) .

With the above modification, the judgment appealed from is hereby affirmed in all other respects. With costs.

G.R. No. 182677 August 3, 2010

JOSE ANTONIO C. LEVISTE, Petitioner,
vs.
HON. ELMO M. ALAMEDA, HON. RAUL M. GONZALEZ, HON. EMMANUEL Y. VELASCO, HEIRS OF THE LATE RAFAEL DE
LAS ALAS, Respondents.

DECISION

CARPIO MORALES, J.:

Jose Antonio C. Leviste (petitioner) assails via the present petition for review filed on May 30, 2008 the August 30, 2007
Decision1 and the April 18, 2008 Resolution2 of the Court of Appeals in CA-G.R. SP No. 97761 that affirmed the trial court’s
Orders of January 24, 31, February 7, 8, all in 2007, and denied the motion for reconsideration, respectively.

Petitioner was, by Information3 of January 16, 2007, charged with homicide for the death of Rafael de las Alas on January
12, 2007 before the Regional Trial Court (RTC) of Makati City. Branch 150 to which the case was raffled, presided by Judge
Elmo Alameda, forthwith issued a commitment order4 against petitioner who was placed under police custody while
confined at the Makati Medical Center.5

After petitioner posted a ₱40,000 cash bond which the trial court approved,6 he was released from detention, and his
arraignment was set on January 24, 2007.

The private complainants-heirs of De las Alas filed, with the conformity of the public prosecutor, an Urgent Omnibus
Motion7 praying, inter alia, for the deferment of the proceedings to allow the public prosecutor to re-examine the evidence
on record or to conduct a reinvestigation to determine the proper offense.

The RTC thereafter issued the (1) Order of January 24, 20078 deferring petitioner’s arraignment and allowing the
prosecution to conduct a reinvestigation to determine the proper offense and submit a recommendation within 30 days
from its inception, inter alia; and (2) Order of January 31, 20079 denying reconsideration of the first order. Petitioner
assailed these orders via certiorari and prohibition before the Court of Appeals.

Meantime, petitioner filed an Urgent Ex-Parte Manifestation and Motion before the trial court to defer acting on the public
prosecutor’s recommendation on the proper offense until after the appellate court resolves his application for injunctive
reliefs, or alternatively, to grant him time to comment on the prosecutor’s recommendation and thereafter set a hearing
for the judicial determination of probable cause.10 Petitioner also separately moved for the inhibition of Judge Alameda
with prayer to defer action on the admission of the Amended Information.11

The trial court nonetheless issued the other assailed orders, viz: (1) Order of February 7, 200712 that admitted the
Amended Information13 for murder and directed the issuance of a warrant of arrest; and (2) Order of February 8,
200714 which set the arraignment on February 13, 2007. Petitioner questioned these two orders via supplemental petition
before the appellate court.

The appellate court dismissed petitioner’s petition, hence, his present petition, arguing that:

PRIVATE RESPONDENT DID NOT HAVE THE RIGHT TO CAUSE THE REINVESTIGATION OF THE CRIMINAL CASE BELOW
WHEN THE CRIMINAL INFORMATION HAD ALREADY BEEN FILED WITH THE LOWER COURT. HENCE, THE COURT OF
APPEALS COMMITTED A GRAVE ERROR IN FINDING THAT RESPONDENT JUDGE DID NOT ACT WITH GRAVE ABUSE OF
DISCRETION IN GRANTING SUCH REINVESTIGATION DESPITE HAVING NO BASIS IN THE RULES OF COURT[;]

RESPONDENT JUDGE ACTED WITH GRAVE ABUSE OF DISCRETION IN ADMITTING STATE PROSECUTOR VELASCO’S
AMENDED INFORMATION, ISSUING A WARRANT OF ARREST, AND SETTING THE CASE BELOW FOR ARRAIGNMENT,
CONSIDERING THAT THE VALIDITY AND LEGALITY OF HIS ORDERS DATED 24 AND 31 JANUARY 2007, WHICH LED TO
THE QUESTIONABLE REINVESTIGATION AND ILLEGAL AMENDED INFORMATION[,] ARE YET TO BE RESOLVED BY THIS
HONORABLE COURT (sic); [AND]

CONSIDERING THAT PROSECUTOR VELASCO’S FINDINGS IN HIS RESOLUTION DATED 2 FEBRUARY 2007 ARE BLATANTLY
BASED ON MERE SPECULATIONS AND CONJECTURES, WITHOUT ANY SUBSTANTIAL OR MATERIAL NEW EVIDENCE BEING
ADDUCED DURING THE REINVESTIGATION, RESPONDENT JUDGE SHOULD HAVE AT LEAST ALLOWED PETITIONER’S
MOTION FOR A HEARING FOR JUDICIAL DETERMINATION OF PROBABLE CAUSE.15 (emphasis in the original omitted)

Records show that the arraignment scheduled on March 21, 2007 pushed through during which petitioner refused to
plead, drawing the trial court to enter a plea of "not guilty" for him.
Prior thereto or on February 23, 2007, petitioner filed an Urgent Application for Admission to Bail Ex Abundanti
Cautela16 which the trial court, after hearings thereon, granted by Order of May 21, 2007, 17 it finding that the evidence of
guilt for the crime of murder is not strong. It accordingly allowed petitioner to post bail in the amount of ₱300,000 for his
provisional liberty.

The trial court, absent any writ of preliminary injunction from the appellate court, went on to try petitioner under the
Amended Information. By Decision of January 14, 2009, the trial court found petitioner guilty of homicide, sentencing him
to suffer an indeterminate penalty of six years and one day of prision mayor as minimum to 12 years and one day of
reclusion temporal as maximum. From the Decision, petitioner filed an appeal to the appellate court, docketed as CA-G.R.
CR No. 32159, during the pendency of which he filed an urgent application for admission to bail pending appeal. The
appellate court denied petitioner’s application which this Court, in G.R. No. 189122, affirmed by Decision of March 17,
2010.

The Office of the Solicitor General (OSG) later argued that the present petition had been rendered moot since the
presentation of evidence, wherein petitioner actively participated, had been concluded.18

Waiver on the part of the accused must be distinguished from mootness of the petition, for in the present case, petitioner
did not, by his active participation in the trial, waive his stated objections.

Section 26, Rule 114 of the Rules of Court provides:

SEC. 26. Bail not a bar to objections on illegal arrest, lack of or irregular preliminary investigation. – An application for or
admission to bail shall not bar the accused from challenging the validity of his arrest or the legality of the warrant issued
therefor, or from assailing the regularity or questioning the absence of a preliminary investigation of the charge against
him, provided that he raises them before entering his plea. The court shall resolve the matter as early as practicable but
not later than the start of the trial of the case.

By applying for bail, petitioner did not waive his right to challenge the regularity of the reinvestigation of the charge
against him, the validity of the admission of the Amended Information, and the legality of his arrest under the Amended
Information, as he vigorously raised them prior to his arraignment. During the arraignment on March 21, 2007, petitioner
refused to enter his plea since the issues he raised were still pending resolution by the appellate court, thus prompting the
trial court to enter a plea of "not guilty" for him.

The principle that the accused is precluded after arraignment from questioning the illegal arrest or the lack of or irregular
preliminary investigation applies "only if he voluntarily enters his plea and participates during trial, without previously
invoking his objections thereto."19 There must be clear and convincing proof that petitioner had an actual intention to
relinquish his right to question the existence of probable cause. When the only proof of intention rests on what a party
does, his act should be so manifestly consistent with, and indicative of, an intent to voluntarily and unequivocally
relinquish the particular right that no other explanation of his conduct is possible.20

From the given circumstances, the Court cannot reasonably infer a valid waiver on the part of petitioner to preclude him
from obtaining a definite resolution of the objections he so timely invoked. Other than its allegation of active
participation, the OSG offered no clear and convincing proof that petitioner’s participation in the trial was unconditional
with the intent to voluntarily and unequivocally abandon his petition. In fact, on January 26, 2010, petitioner still moved
for the early resolution of the present petition.21

Whatever delay arising from petitioner’s availment of remedies against the trial court’s Orders cannot be imputed to
petitioner to operate as a valid waiver on his part. Neither can the non-issuance of a writ of preliminary injunction be
deemed as a voluntary relinquishment of petitioner’s principal prayer. The non-issuance of such injunctive relief only
means that the appellate court did not preliminarily find any exception 22 to the long-standing doctrine that injunction will
not lie to enjoin a criminal prosecution.23 Consequently, the trial of the case took its course.

The petition is now moot, however, in view of the trial court’s rendition of judgment.

A moot and academic case is one that ceases to present a justiciable controversy by virtue of supervening events, so that a
declaration thereon would be of no practical use or value.24

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 ground25 to annul the finding of probable cause for murder,
there is no practical use or value in abrogating the concluded proceedings and retrying the case under the original
Information for homicide just to arrive, more likely or even definitely, at the same conviction of homicide. Mootness would
have also set in had petitioner been convicted of murder, for proof beyond reasonable doubt, which is much higher than
probable cause, would have been established in that instance.
Instead, however, of denying the petition outright on the ground of mootness, the Court proceeds to resolve the legal
issues in order to formulate controlling principles to guide the bench, bar and public.26 In the present case, there is
compelling reason to clarify the remedies available before and after the filing of an information in cases subject of inquest.

After going over into the substance of the petition and the assailed issuances, the Court finds no reversible error on the
part of the appellate court in finding no grave abuse of discretion in the issuance of the four trial court Orders.

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.

The contention lacks merit.

Section 6,27 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. (underscoring supplied)

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.28 As an exception, the rules
provide that there is no need for a preliminary investigation in cases of a lawful arrest without a warrant 29 involving such
type of offense, so long as an inquest, where available, has been conducted.30

Inquest is defined as an informal and summary investigation conducted by a public prosecutor in criminal cases involving
persons arrested and detained without the benefit of a warrant of arrest issued by the court for the purpose of
determining whether said persons should remain under custody and correspondingly be charged in court. 31

It is imperative to first take a closer look at the predicament of both the arrested person and the private complainant
during the brief period of inquest, to grasp the respective remedies available to them before and after the filing of a
complaint or information in court.

BEFORE THE FILING OF COMPLAINT OR INFORMATION IN COURT, the private complainant may proceed in coordinating
with the arresting officer and the inquest officer during the latter’s conduct of inquest. Meanwhile, the arrested person has
the option to avail of a 15-day preliminary investigation, provided he duly signs a waiver of any objection against delay in
his delivery to the proper judicial authorities under Article 125 of the Revised Penal Code. For obvious reasons, this
remedy is not available to the private complainant since he cannot waive what he does not have. The benefit of the
provisions of Article 125, which requires the filing of a complaint or information with the proper judicial authorities
within the applicable period,32 belongs to the arrested person.

The accelerated process of inquest, owing to its summary nature and the attendant risk of running against Article 125,
ends with either the prompt filing of an information in court or the immediate release of the arrested person.33Notably, the
rules on inquest do not provide for a motion for reconsideration.34

Contrary to petitioner’s position that private complainant should have appealed to the DOJ Secretary, such remedy is not
immediately available in cases subject of inquest.

Noteworthy is the proviso that the appeal to the DOJ Secretary is by "petition by a proper party under such rules as the
Department of Justice may prescribe."35 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-
à-vis the resolution of the investigating prosecutor in order to make the necessary corrections or revisions and to ensure
that the information is sufficient in form and substance."41

x x x Since no evidence has been presented at that stage, the error would appear or be discoverable from a review of the
records of the preliminary investigation. Of course, that fact may be perceived by the trial judge himself but,
again, realistically it will be the prosecutor who can initially determine the same. That is why such error need not be
manifest or evident, nor is it required that such nuances as offenses includible in the offense charged be taken into
account. It necessarily follows, therefore, that the prosecutor can and should institute remedial measures[.]42 (emphasis
and underscoring supplied)

The prosecution of crimes appertains to the executive department of the government whose principal power and
responsibility is to see that our laws are faithfully executed. A necessary component of this power to execute our laws is
the right to prosecute their violators. The right to prosecute vests the prosecutor with a wide range of discretion – the
discretion of what and whom to charge, the exercise of which depends on a smorgasbord of factors which are best
appreciated by prosecutors.43

The prosecution’s discretion is not boundless or infinite, however.44 The standing principle is that once an information is
filed in court, any remedial measure such as a reinvestigation must be addressed to the sound discretion of the court.
Interestingly, petitioner supports this view.45 Indeed, the Court ruled in one case that:

The rule is now well settled that once a complaint or information is filed in court, any disposition of the case, whether as
to its dismissal or the conviction or the acquittal of the accused, rests in the sound discretion of the court. Although the
prosecutor retains the direction and control of the prosecution of criminal cases even when the case is already in court, he
cannot impose his opinion upon the tribunal. For while it is true that the prosecutor has the quasi-judicial discretion to
determine whether or not a criminal case should be filed in court, once the case had already been brought therein any
disposition the prosecutor may deem proper thereafter

should be addressed to the court for its consideration and approval. The only qualification is that the action of the court
must not impair the substantial rights of the accused or the right of the People to due process of law.

xxxx

In such an instance, before a re-investigation of the case may be conducted by the public prosecutor, the permission or
consent of the court must be secured. If after such re-investigation the prosecution finds a cogent basis to withdraw the
information or otherwise cause the dismissal of the case, such proposed course of action may be taken but shall likewise
be addressed to the sound discretion of the court.46 (underscoring supplied)

While Abugotal v. Judge Tiro47 held that to ferret out the truth, a trial is to be preferred to a reinvestigation, the Court
therein recognized that a trial court may, where the interest of justice so requires, grant a motion for reinvestigation of a
criminal case pending before it.
Once the trial court grants the prosecution’s motion for reinvestigation, the former is deemed to have deferred to the
authority of the prosecutorial arm of the Government. Having brought the case back to the drawing board, the prosecution
is thus equipped with discretion – wide and far reaching – regarding the disposition thereof,48 subject to the trial court’s
approval of the resulting proposed course of action.

Since a reinvestigation may entail a modification of the criminal information as what happened in the present case, the
Court’s holding is bolstered by the rule on amendment of an information under Section 14, Rule 110 of the Rules of Court:

A complaint or information may be amended, in form or in substance, without leave of court, at any time before the
accused enters his plea. After the plea and during the trial, a formal amendment may only be made with leave of court
and when it can be done without causing prejudice to the rights of the accused.

However, any amendment before plea, which downgrades the nature of the offense charged in or excludes any accused
from the complaint or information, can be made only upon motion by the prosecutor, with notice to the offended party
and with leave of court. The court shall state its reasons in resolving the motion and copies of its order shall be furnished
all parties, especially the offended party.

If it appears at any time before judgment that a mistake has been made in charging the proper offense, the court shall
dismiss the original complaint or information upon the filing of a new one charging the proper offense in accordance with
section 11, Rule 119, provided the accused would not be placed in double jeopardy. The court may require the witnesses
to give bail for their appearance at the trial. (emphasis supplied)

In fine, before the accused enters a plea, a formal or substantial amendment of the complaint or information may be made
without leave of court.49 After the entry of a plea, only a formal amendment may be made but with leave of court and only
if it does not prejudice the rights of the accused. After arraignment, a substantial amendment is proscribed except if the
same is beneficial to the accused.50

It must be clarified though that not all defects in an information are curable by amendment prior to entry of plea. An
information which is void ab initio cannot be amended to obviate a ground for quashal.51 An amendment which operates to
vest jurisdiction upon the trial court is likewise impermissible.52

Considering the general rule that an information may be amended even in substance and even without leave of court at
any time before entry of plea, does it mean that the conduct of a reinvestigation at that stage is a mere superfluity?

It is not.

Any remedial measure springing from the reinvestigation – be it a complete disposition or an intermediate
modification53 of the charge – is eventually addressed to the sound discretion of the trial court, which must make an
independent evaluation or assessment of the merits of the case. Since the trial court would ultimately make the
determination on the proposed course of action, it is for the prosecution to consider whether a reinvestigation is necessary
to adduce and review the evidence for purposes of buttressing the appropriate motion to be filed in court.

More importantly, reinvestigation is required in cases involving a substantial amendment of the information. Due process
of law demands that no substantial amendment of an information may be admitted without conducting another or a new
preliminary investigation. In Matalam v. The 2nd Division of the Sandiganbayan, 54 the Court ruled that a substantial
amendment in an information entitles an accused to another preliminary investigation, unless the amended information
contains a charge related to or is included in the original Information.

The question to be resolved is whether the amendment of the Information from homicide to murder is considered a
substantial amendment, which would make it not just a right but a duty of the prosecution to ask for a preliminary
investigation.

The Court answers in the affirmative.

A substantial amendment consists of the recital of facts constituting the offense charged and determinative of the
jurisdiction of the court. All other matters are merely of form. The following have been held to be mere formal
amendments: (1) new allegations which relate only to the range of the penalty that the court might impose in the event of
conviction; (2) an amendment which does not charge another offense different or distinct from that charged in the original
one; (3) additional allegations which do not alter the prosecution’s theory of the case so as to cause surprise to the accused
and affect the form of defense he has or will assume; (4) an amendment which does not adversely affect any substantial
right of the accused; and (5) an amendment that merely adds specifications to eliminate vagueness in the information and
not to introduce new and material facts, and merely states with additional precision something which is already contained
in the original information and which adds nothing essential for conviction for the crime charged.
The test as to whether a defendant is prejudiced by the amendment is whether a defense under the information as it
originally stood would be available after the amendment is made, and whether any evidence defendant might have would
be equally applicable to the information in the one form as in the other. An amendment to an information which does not
change the nature of the crime alleged therein does not affect the essence of the offense or cause surprise or deprive the
accused of an opportunity to meet the new averment had each been held to be one of form and not of
substance.55 (emphasis and underscoring supplied)

Matalam adds that the mere fact that the two charges are related does not necessarily or automatically deprive the
accused of his right to another preliminary investigation. Notatu dignum is the fact that both the original Information and
the amended Information in Matalam were similarly charging the accused with violation of Section 3(e) of the Anti-Graft
and Corrupt Practices Act.

In one case,56 it was squarely held that the amendment of the Information from homicide to murder is "one of substance
with very serious consequences."57 The amendment involved in the present case consists of additional averments of the
circumstances of treachery, evident premeditation, and cruelty, which qualify the offense charged from homicide to
murder. It being a new and material element of the offense, petitioner should be given the chance to adduce evidence on
the matter. Not being merely clarificatory, the amendment essentially varies the prosecution’s original theory of the case
and certainly affects not just the form but the weight of defense to be mustered by petitioner.

The Court distinguishes the factual milieus in Buhat v. CA58 and Pacoy v. Cajigal,59 wherein the amendment of the caption
of the Information from homicide to murder was not considered substantial because there was no real change in the
recital of facts constituting the offense charged as alleged in the body of the Information, as the allegations of qualifying
circumstances were already clearly embedded in the original Information. Buhat pointed out that the original Information
for homicide already alleged the use of superior strength, while Pacoy states that the averments in the amended
Information for murder are exactly the same as those already alleged in the original Information for homicide. None of
these peculiar circumstances obtains in the present case.

Considering that another or a new preliminary investigation is required, the fact that what was conducted in the present
case was a reinvestigation does not invalidate the substantial amendment of the Information. There is no substantial
distinction between a preliminary investigation and a reinvestigation since both are conducted in the same manner and for
the same objective of determining whether there exists sufficient ground to engender a well-founded belief that a crime
has been committed and the respondent is probably guilty thereof and should be held for trial.60 What is essential is that
petitioner was placed on guard to defend himself from the charge of murder 61 after the claimed circumstances were made
known to him as early as the first motion.

Petitioner did not, however, make much of the opportunity to present countervailing evidence on the proposed amended
charge. Despite notice of hearing, petitioner opted to merely observe the proceedings and declined to actively participate,
even with extreme caution, in the reinvestigation. Mercado v. Court of Appeals states that the rules do not even require, as
a condition sine qua non to the validity of a preliminary investigation, the presence of the respondent as long as efforts to
reach him were made and an opportunity to controvert the complainant’s evidence was accorded him. 62

In his second assignment of error, petitioner basically assails the hurried issuance of the last two assailed RTC Orders
despite the pendency before the appellate court of the petition for certiorari challenging the first two trial court Orders
allowing a reinvestigation.

The Rules categorically state that the petition shall not interrupt the course of the principal case unless a temporary
restraining order or a writ of preliminary injunction has been issued.63 The appellate court, by Resolution of February 15,
2007,64 denied petitioner’s application for a temporary restraining order and writ of preliminary injunction. Supplementary
efforts to seek injunctive reliefs proved futile.65 The appellate court thus did not err in finding no grave abuse of discretion
on the part of the trial court when it proceeded with the case and eventually arraigned the accused on March 21, 2007,
there being no injunction order from the appellate court. Moreover, petitioner opted to forego appealing to the DOJ
Secretary, a post-inquest remedy that was available after the reinvestigation and which could have suspended the
arraignment.661avvphi1

Regarding petitioner’s protestations of haste, suffice to state that the pace in resolving incidents of the case is not per se
an indication of bias. In Santos-Concio v. Department of Justice,67 the Court held:

Speed in the conduct of proceedings by a judicial or quasi-judicial officer cannot per se be instantly attributed to an
injudicious performance of functions. For one’s prompt dispatch may be another’s undue haste. The orderly
administration of justice remains as the paramount and constant consideration, with particular regard of the
circumstances peculiar to each case.

The presumption of regularity includes the public officer’s official actuations in all phases of work. Consistent with such
presumption, it was incumbent upon petitioners to present contradictory evidence other than a mere tallying of days or
numerical calculation. This, petitioners failed to discharge. The swift completion of the Investigating Panel’s initial task
cannot be relegated as shoddy or shady without discounting the presumably regular performance of not just one but five
state prosecutors.68

There is no ground for petitioner’s protestations against the DOJ Secretary’s sudden designation of Senior State Prosecutor
Emmanuel Velasco as Acting City Prosecutor of Makati City for the present case69 and the latter’s conformity to the motion
for reinvestigation.

In granting the reinvestigation, Judge Alameda cannot choose the public prosecutor who will conduct the reinvestigation
or preliminary investigation.70 There is a hierarchy of officials in the prosecutory arm of the executive branch headed by
the Secretary of Justice71 who is vested with the prerogative to appoint a special prosecutor or designate an acting
prosecutor to handle a particular case, which broad power of control has been recognized by jurisprudence. 72

As for the trial court’s ignoring the DOJ Secretary’s uncontested statements to the media which aired his opinion that if
the assailant merely intended to maim and not to kill the victim, one bullet would have sufficed — the DOJ Secretary
reportedly uttered that "the filing of the case of homicide against ano against Leviste lintek naman eh I told you to watch
over that case… there should be a report about the ballistics, about the paraffin, etc., then that’s not a complete
investigation, that’s why you should use that as a ground" — no abuse of discretion, much less a grave one, can be
imputed to it.

The statements of the DOJ Secretary do not evince a "determination to file the Information even in the absence of probable
cause."73 On the contrary, the remarks merely underscored the importance of securing basic investigative reports to
support a finding of probable cause. The original Resolution even recognized that probable cause for the crime of murder
cannot be determined based on the evidence obtained "[u]nless and until a more thorough investigation is conducted and
eyewitness/es [is/]are presented in evidence[.]"74

The trial court concluded that "the wound sustained by the victim at the back of his head, the absence of paraffin test and
ballistic examination, and the handling of physical evidence,"75 as rationalized by the prosecution in its motion, are
sufficient circumstances that require further inquiry.

That the evidence of guilt was not strong as subsequently assessed in the bail hearings does not affect the prior
determination of probable cause because, as the appellate court correctly stated, the standard of strong evidence of guilt
which is sufficient to deny bail to an accused is markedly higher than the standard of judicial probable cause which is
sufficient to initiate a criminal case.76

In his third assignment of error, petitioner faults the trial court for not conducting, at the very least, a hearing for judicial
determination of probable cause, considering the lack of substantial or material new evidence adduced during the
reinvestigation.

Petitioner’s argument is specious.

There are two kinds of determination of probable cause: executive and judicial. The executive determination of probable
cause is one made during preliminary investigation. It is a function that properly pertains to the public prosecutor who is
given a broad discretion to determine whether probable cause exists and to charge those whom he believes to have
committed the crime as defined by law and thus should be held for trial. Otherwise stated, such official has the quasi-
judicial authority to determine whether or not a criminal case must be filed in court. Whether that function has been
correctly discharged by the public prosecutor, i.e., whether he has made a correct ascertainment of the existence of
probable cause in a case, is a matter that the trial court itself does not and may not be compelled to pass upon. 77

The judicial determination of probable cause is one made by the judge to ascertain whether a warrant of arrest should be
issued against the accused. The judge must satisfy himself that based on the evidence submitted, there is necessity for
placing the accused under custody in order not to frustrate the ends of justice. If the judge finds no probable cause, the
judge cannot be forced to issue the arrest warrant.78 Paragraph (a), Section 5,79 Rule 112 of the Rules of Court outlines the
procedure to be followed by the RTC.

To move the court to conduct a judicial determination of probable cause is a mere superfluity, for with or without such
motion, the judge is duty-bound to personally evaluate the resolution of the public prosecutor and the supporting
evidence. In fact, the task of the presiding judge when the Information is filed with the court is first and foremost to
determine the existence or non-existence of probable cause for the arrest of the accused.80

What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of
the existence of probable cause. But the judge is not required to personally examine the complainant and his witnesses.
Following established doctrine and procedure, he shall (1) personally evaluate the report and the supporting
documents submitted by the prosecutor regarding the existence of probable cause, and on the basis thereof, he may
already make a personal determination of the existence of probable cause; and (2) if he is not satisfied that probable cause
exists, he may disregard the prosecutor’s report and require the submission of supporting affidavits of witnesses to aid
him in arriving at a conclusion as to the existence of probable cause.81(emphasis and underscoring supplied)

The rules do not require cases to be set for hearing to determine probable cause for the issuance of a warrant of arrest of
the accused before any warrant may be issued.82 Petitioner thus cannot, as a matter of right, insist on a hearing for judicial
determination of probable cause. Certainly, petitioner "cannot determine beforehand how cursory or exhaustive the
[judge's] examination of the records should be [since t]he extent of the judge’s examination depends on the exercise of his
sound discretion as the circumstances of the case require."83 In one case, the Court emphatically stated:

The periods provided in the Revised Rules of Criminal Procedure are mandatory, and as such, the judge must determine
the presence or absence of probable cause within such periods. The Sandiganbayan’s determination of probable cause is
made ex parte and is summary in nature, not adversarial. The Judge should not be stymied and distracted from his
determination of probable cause by needless motions for determination of probable cause filed by the
accused.84 (emphasis and underscoring supplied)

Petitioner proceeds to discuss at length evidentiary matters, arguing that no circumstances exist that would qualify the
crime from homicide to murder.

The allegation of lack of substantial or material new evidence deserves no credence, because new pieces of evidence are
not prerequisites for a valid conduct of reinvestigation. It is not material that no new matter or evidence was presented
during the reinvestigation of the case. It should be stressed that reinvestigation, as the word itself implies, is merely a
repeat investigation of the case. New matters or evidence are not prerequisites for a reinvestigation, which is simply a
chance for the prosecutor to review and re-evaluate its findings and the evidence already submitted.85

Moreover, under Rule 45 of the Rules of Court, only questions of law may be raised in, and be subject of, a petition for
review on certiorari since this Court is not a trier of facts. The Court cannot thus review the evidence adduced by the
parties on the issue of the absence or presence of probable cause, as there exists no exceptional circumstances to warrant
a factual review.86

In a petition for certiorari, like that filed by petitioner before the appellate court, the jurisdiction of the court is narrow in
scope. It is limited to resolving only errors of jurisdiction.1avvphi1 It is not to stray at will and resolve questions and
issues beyond its competence, such as an error of judgment.87 The court’s duty in the pertinent case is confined to
determining whether the executive and judicial determination of probable cause was done without or in excess of
jurisdiction or with grave abuse of discretion. Although it is possible that error may be committed in the discharge of
lawful functions, this does not render the act amenable to correction and annulment by the extraordinary remedy of
certiorari, absent any showing of grave abuse of discretion amounting to excess of jurisdiction. 88

WHEREFORE, the petition is DENIED. The assailed Decision and Resolution of the Court of Appeals in CA-G.R. SP No. 97761
are AFFIRMED.

SO ORDERED.