THIRD DIVISION

[G.R. NOS. 164669-70 : October 30, 2009]

LIEZL CO, Petitioner, v. HAROLD LIM y GO and AVELINO UY GO, Respondents.

DECISION

CHICO-NAZARIO, J.:

This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, assailing the
Order,1 dated 11 February 2004, later upheld in a subsequent Order2 dated 29 June 2004, both
rendered by Branch 45 of the Regional Trial Court (RTC) of Manila, dismissing Criminal Cases
No. 01-197839 and No. 03-213403 against respondents Harold Lim y Go (Lim) and Avelino Uy
Go (Go), respectively, for violation of Presidential Decree No. 1612, otherwise known as the
Anti-Fencing Law.3

On 6 December 2001, agents from the National Bureau of Investigation (NBI) raided a
commercial establishment named A-K Video Store, located at 1214 Masangkay Street, Manila.
They had acted upon the information relayed by complainant Liezl Co (Co) that cell cards that
were stolen from her on 26 November 2001 were being sold at A-K Video Store. The store was
owned by Go. Lim, who was found administering the store at the time of the raid, was arrested.
In all, a total of thirty (30) boxes containing cell cards worth P332,605.00 were seized from the
store.4

After Inquest proceedings were conducted, the City Prosecutor's Office of Manila issued a
Resolution dated 7 December 2001 recommending the prosecution of Lim for violation of
Presidential Decree No. 1612.5 On 7 March 2003, an Information6 was filed before the RTC of
Manila charging Lim with violation of Presidential Decree No. 1612, to wit:

That on or about December 6, 2001, in the City of Manila, Philippines, the said accused, with
intent to gain for himself or for another, did then and there willfully and feloniously possess,
keep, conceal, receive, acquire, sell, or dispose or buy and sell thirty (30) boxes of P250.00
Globe cell card valued at P332,605.00 and five (5) pcs. Globe cell card valued at P1,105.00, all
in the total amount of P333,710.00 belonging to LIEZL CO y CO, which said cell cards, said
accused knew or should have known to have been the subject/proceeds of the crime of Theft or
Robbery.

Lim moved for a reinvestigation of his case before the Office of the City Prosecutor of Manila,
which was granted by the RTC on 25 April 2002.7 The arraignment that was initially scheduled
on 21 November 2002 was rescheduled on 22 January 2003,8 and further rescheduled
thereafter pending the reinvestigation proceedings. Pending the reinvestigation of Lim's case,
petitioner filed a complaint against Go before the Office of the City Prosecutor of Manila for the
violation of Presidential Decree No. 1612.9 The reinvestigation of the case against Lim was
conducted together with the preliminary investigation of Go.10 In a Review Resolution,11 dated
9 April 2003, the Office of the City Prosecutor of Manila reaffirmed its findings of probable cause
against Lim and recommended the prosecution of Go. The dispositive part of the Review
Resolution reads:

WHEREFORE, it is recommended that Criminal Case No. 01-197839 be remanded back to

court for further proceedings. It is likewise recommended that the attached information for
Violation of P.D. 1612 against respondent Avelino Uy Go be approved.12

Accordingly, the Information13 against Go was filed on 25 April 2003. It reads:

That on or about December 6, 2001, in the City of Manila, Philippines, the said accused, with
intent to gain for himself or for another, conspiring and confederating with Harold Lim who was
already charged in Court of the same offense docketed under Criminal Case No. 01-197839
and mutually helping each other, did then and there willfully and feloniously possess, keep,
conceal, receive and acquire, sell, or dispose or buy and sell thirty (30) boxes of P250.00 Globe
cell card valued at P332,605.00 and five (5) pcs. P250.00 Globe cell card valued at P1,105.00,
all in the total amount of P333,710.00 belonging to LIEZL CO CO, which said cell cards, said
accused knew or should have known to have been the subject/proceeds of the crime of Theft or
Robbery.

Respondents filed a Petition for Review with the Department of Justice assailing the Review
Resolution, dated 9 April 2003.

On 15 July 2003, respondents moved for the consolidation of Criminal Cases No. 01-197839
and No. 03-213403 on the ground that these cases arose from the same series of incidents.14
During the hearing held on 16 July 2003, the RTC granted the motion and consolidated the
criminal cases against respondents.15

On 16 January 2004, the Acting Secretary of the Department of Justice, Ma. Merceditas N.
Gutierrez, issued a Resolution16 reversing the Review Resolution dated 9 April 2003 of the
Office of the City Prosecutor of Manila. The dispositive part of the Resolution reads:

ACCORDINGLY, the resolution appealed from is hereby REVERSED and SET ASIDE. The City
Prosecutor of Manila is directed to withdraw forthwith the informations for violation of PD No.
1612 filed in the court against respondents Harold G. Lim and Avelino Uy Go and to report the
action taken hereon within ten days from receipt hereof.17

On 27 January 2004, Assistant Prosecutor Yvonne G. Corpuz filed a Motion to Withdraw

Informations18 seeking the dismissal of the cases filed against respondents pursuant to the
Resolution of the Acting Secretary of the Department of Justice dated 16 January 2004 directing
the prosecutor to move for the withdrawal of the Informations filed against respondents.
On 11 February 2004, the date set by the RTC for the arraignment of the respondents and for
pre-trial, the respondents were arraigned, and the prosecution and the defense marked their
evidence and submitted their stipulations of facts. Thereafter, the defense counsel orally moved
for the dismissal of the case on the ground that the Office of the City Prosecutor of Manila,
through Assistant Prosecutor Corpuz, had already filed a Motion to Withdraw Informations on 27
January 2004. Private prosecutor Lodelberto Parungao opposed the motion to dismiss on the
ground that the Resolution of the Acting Secretary of Justice dated 16 January 2004 was not
binding upon the Court. Nevertheless, in an Order19 dated 11 February 2004, the RTC ordered
the dismissal of Criminal Cases No. 01-197839 and No. 03-213403 on the ground that the
Office of the City Prosecutor of Manila and the Department of Justice would not prosecute these
cases, to wit:

After considering the respective stands of the prosecution and the defense as well as the
records of this case, this Court is of the considered view that the Motion To Dismiss by the
accused is meritorious and should be granted. If this Court will proceed with these criminal
cases, the prosecution thereof will naturally be under the direct control and supervision of Public
Prosecutor Antionio B. Valencia, Jr. However, the said Public Prosecutor will be placed in an
awkward, if not precarious situation, since he will be going against the very Orders of his own
Office and the Department of Justice which want the Informations withdrawn. If the City
Prosecutor's Office of Manila and the Department of Justice will not prosecute these cases for
the plaintiff Republic of the Philippines, then the same should be dismissed. As correctly pointed
out by counsel for the accused, what remains is only the civil aspect of these cases.20
(Emphasis ours.)

The dispositive part of the said Order reads:

WHEREFORE, premises considered, and finding the Motion To Dismiss by the accused through
counsel to be meritorious, the same is hereby GRANTED and let the herein Criminal Cases
Nos. 01-197839 and 03-213403 be DISMISSED.

As moved by the private prosecutor, he is given the period allowed by the Rules of Court to file
the necessary pleading with respect to this Order of the Court from receipt hereof.

As further moved by the private prosecutor, Atty Lodelberto S. Parungao, that the complainant
be allowed to present evidence on the civil aspect of these cases on the ground that the civil
actions in these cases were deemed instituted with the criminal actions and that there was no
reservation made to file a separate civil action and therefore the civil cases remain pending with
this court since extinction of the penal action does not carry with it extinction of the civil action,
and over the vigorous objection by counsel for the accused Atty. Teresita C. Marbibi who
insisted that the dismissal of the herein criminal cases carried with it the dismissal also of the
civil aspect thereof, the said motion by the private prosecutor is hereby GRANTED and he may
present evidence on the civil aspect of these cases on March 18 and March 25, 2004 both at
8:30 a.m. Considering the manifestation by Atty. Marbibi that she will not participate in said
hearings, let the presentation of evidence for the complainant be made ex-parte without
objection from the defense counsel.21

Petitioner filed a Motion for Reconsideration22 dated 12 March 2004, which the RTC denied in
an Order23 dated 29 June 2004. The dispositive part of the Order reads:

WHEREFORE, premises considered, the private complainants' subject Motion for

Reconsideration is hereby DENIED for lack of merit.24

On 2 July 2004, petitioner filed a Petition for Certiorari before the Court of Appeals, docketed as
CA-G.R. SP No. 84703, which sought the reversal of the Resolution dated 16 January 2006 of
the Acting Secretary of the Department of Justice directing the Office of the City Prosecutor of
Manila to withdraw the informations filed against the respondents.25 This petition was still
pending with the Court of Appeals when the petitioner filed the present petition with the
Supreme Court assailing the Orders dated 11 February 2004 and 29 June 2004 of the RTC
dismissing the criminal complaints against respondents. The present Petition, filed under Rule
45 of the Rules of Court, raises the following questions of law26 :

BY THE PRESENT APPEAL BY CERTIORARI, ARE THE RIGHTS OF THE TWO (2)
ACCUSED AGAINST DOUBLE JEOPARDY VIOLATED, CONSIDERING THAT THEY
EXPRESSLY MOVED FOR THE DISMISSAL OF THE CRIMINAL CASES AGAINST THEM?

II

WAS THE ORDER OF THE PRESIDING JUDGE OF RTC45-MANILA DISMISSING CRIMINAL

CASES NO. 01-197839 AND 03-213403 FOR THE SOLE REASON THAT THE DEPARTMENT
OF JUSTICE ORDERED THE WITHDRAWAL OF THE CORRESPONDING INFORMATIONS,
AND WITHOUT MAKING AN INDEPENDENT ASSESSMENT AND FINDING OF EVIDENCE,
VALID?

The petition is meritorious.

Once a case is filed with the court, any disposition of it rests on the sound discretion of the
court. The trial court is not bound to adopt the resolution of the Secretary of Justice, since it is
mandated to independently evaluate or assess the merits of the case. Reliance on the
resolution of the Secretary of Justice alone would be an abdication of its duty and jurisdiction to
determine a prima facie case. The trial court may make an independent assessment of the
merits of the case based on the affidavits and counter-affidavits, documents, or evidence
appended to the Information; the records of the public prosecutor, which the court may order the
latter to produce before the court; or any evidence already adduced before the court by the
accused at the time the motion is filed by the public prosecutor.27

The failure of the trial court judge to independently evaluate and assess the merits of the case
against the accused violates the complainant's right to due process and constitutes grave abuse
of discretion amounting to excess of jurisdiction. This Court must therefore remand the case to
the RTC, so that the latter can rule on the merits of the case to determine if a prima facie case
exists and consequently resolve the Motion to Withdraw Informations anew.28

In dismissing the criminal cases against the respondents, the RTC in this case relied on the
unwillingness of the Department of Justice to prosecute these cases and the awkward situation
in which the public prosecutor would find himself. The assailed Order dated 11 February 2004
reads:

After considering the respective stands of the prosecution and the defense as well as the
records of this case, this Court is of the considered view that the Motion To Dismiss by the
accused is meritorious and should be granted. If this Court will proceed with these criminal
cases, the prosecution thereof will naturally be under the direct control and supervision of Public
Prosecutor Antonio B. Valencia, Jr. However, the said Public Prosecutor will be placed in an
awkward, if not precarious situation, since he will be going against the very Orders of his own
Office and the Department of Justice which want the Informations withdrawn. If the City
Prosecutor's Office of Manila and the Department of Justice will not prosecute these cases for
the plaintiff Republic of the Philippines, then the same should be dismissed. As correctly pointed
out by counsel for the accused, what remains is only the civil aspect of these cases.29
(Emphasis ours.)

Moreover, the trial judge did not positively state that the evidence presented against the
respondents was insufficient for a prima facie case, nor did the aforequoted Order include a
discussion of the merits of the case based on an evaluation or assessment of the evidence on
record. In other words, the dismissal of the case was based upon considerations other than the
judge's own personal individual conviction that there was no case against the respondents.
Thus, the trial judge improperly relinquished the discretion that he was bound to exercise, and
the Orders dated 11 February 2004 and 29 June 2004 are invalid for having been issued in
grave abuse of discretion.30

Section 21, Article III of the Constitution prescribes the rule against double jeopardy:

No person shall be twice put in jeopardy of punishment for the same offense. If an act is
punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to
another prosecution for the same act.

The following requisites must be complied with for double jeopardy to set in: (1) there is a valid
complaint of information; (2) the complaint should be filed before a court of competent
jurisdiction; (3) the accused has pleaded to the charge; and (4) the accused has been convicted
or acquitted, or the case has been dismissed or terminated without the express consent of the
accused.31

The Order dated 11 February 2004 of the RTC categorically stated that the defense counsel
moved for the dismissal of the cases against the respondents. Verily, respondents, through
counsel, had given their express consent to the termination of the case on 11 February 2004.
Therefore, the fourth requisite, which necessitates the conviction or acquittal of the accused or
the dismissal of the case without his or her approval, was not met. Undoubtedly, the rule on
double jeopardy is inapplicable to this case.

It is the conviction or the acquittal of the accused, or dismissal or termination of the case without
the approval of the accused that bars further prosecution for the same offense or any attempt to
commit the same or the frustration thereof.32 At the heart of the policy is the concern that
permitting the sovereign freely to subject the citizen to a second judgment for the same offense
would arm the government with a potent instrument of oppression. The constitutional provision,
therefore, guarantees that the State shall not be permitted to make repeated attempts to convict
an individual for an alleged offense, thereby subjecting him to embarrassment, expense, and
ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as
enhancing the possibility that even though innocent he may be found guilty. Nevertheless, the
prosecution is entitled to one opportunity to require the accused to stand trial. Should the
prosecution waive this right to a full-blown trial, the defendant has the right to have his or her
trial completed by a particular tribunal.33 If the trial is terminated before it is completed, and it is
dismissed with the consent of the defendant, then double jeopardy will not attach.

Respondents alleged that petitioner is guilty of forum shopping since she filed the present
petition assailing the Orders dated 11 February 2004 and 29 June 2004 of the RTC after she
filed a Petition for Certiorari before the Court of Appeals docketed as CA-G.R. SP No. 84703
questioning the Resolution of the Acting Secretary of Justice dated 16 January 2004. This
argument is specious.ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

Section 5, Rule 7 of the 1997 Rules of Court, which disallows the deplorable practice of forum
shopping, provides that:

SEC. 5. Certification against forum shopping. The plaintiff or principal party shall certify under
oath in the complaint or other initiatory pleading asserting a claim for relief, or in a sworn
certification annexed thereto and simultaneously filled therewith: (a) that he has not theretofore
commenced any action or filed any claim involving the same issues in any court, tribunal or
quasi-judicial agency and, to the best of his knowledge, no such other action or claim is pending
therein; (b) if there is such other pending action or claim, a complete statement of the present
status thereof; and (c) if he should thereafter learn that the same or similar action or claim has
been filed or is pending, he shall report that fact within five (5) days therefrom to the court
wherein his aforesaid complaint or initiatory pleading has been filed.
Failure to comply with the foregoing requirements shall not be curable by mere amendment of
the complaint or other initiatory pleading but shall be cause for the dismissal of the case without
prejudice, unless otherwise provided, upon motion and after hearing. The submission of a false
certification or non-compliance with any of the undertakings therein shall constitute indirect
contempt of court, without prejudice to the corresponding administrative and criminal actions. If
the acts of the party or his counsel clearly constitute willful and deliberate forum shopping, the
same shall be ground for summary dismissal with prejudice and shall constitute direct contempt,
as well as a cause for administrative sanctions.

Forum shopping exists when a party repetitively avails himself of several judicial remedies in
different courts, simultaneously or successively, all substantially founded on the same
transactions and the same essential facts and circumstances and all raising substantially the
same issues either pending in or already resolved adversely by some other court.34 The test for
determining forum shopping is whether in the two (or more) cases pending, there is an identity
of parties, rights or causes of action, and relief sought.35

Petitioner in this case is not guilty of forum shopping since there is no identity of relief and cause
of action in the present petition and in CA-G.R. SP No. 84703. The Petition for Certiorari filed by
petitioners before the Court of Appeals questions the propriety of the Resolution of the Acting
Secretary of Justice. The present petition docketed as G.R. NOS. 164669-70 seeks the reversal
of the Orders dated 11 February 2004 and 29 June 2004 of the RTC. The determination made
by the Acting Secretary of Justice that no prima facie case exists for the prosecution of the case
is distinct from the judicial determination of the RTC that there is no probable cause for the
continued hearing of the criminal case. These are two very different actions which should be
separately assailed. The former is pursuant to the powers and functions of the Department of
Justice as provided under Section 2, Chapter 1, Title III of the Revised Administrative Code:

Section 3. Powers and Functions. To accomplish its mandate, the Department shall have the
following powers and functions:

xxx

(2) Investigate the commission of crimes, prosecute offenders and administer the probation and
correction system.

On the other hand, the determination made by the RTC, which is being questioned in the
present case, is pursuant to the judicial powers conferred by Section 1, Article VIII of the
Constitution:

Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as
may be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies involving
rights which are legally demandable and enforceable, and to determine whether or not there has
been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the government.

Consequently, a determination by the Court of Appeals that the prosecution of the criminal case
must proceed will not affect whether or not this Court may or may not adjudge that the RTC
should continue to hear the same criminal case.

Finally, this Court finds the proceedings conducted on 11 February 2004 highly unusual in that
the RTC judge had arraigned the respondents before granting the respondent's oral motion to
dismiss solely based on the Resolution of the Acting Secretary of Justice dated 16 January
2004, a copy of which was attached to the Motion to Withdraw Informations filed by the public
prosecutor on 27 January 2004. The irregularity is even more pronounced when we consider
the fact that the public prosecutor, whose office had filed a Motion to Withdraw Informations on
27 January 2004, agreed to have respondents arraigned on 11 February 2004. Added to the
fact that the defense was allowed to move for the dismissal of the case even without a written
motion, such irregularity arouses suspicions that the arraignment of the respondents after the
public prosecutor was already ordered to withdraw the Informations was intended to aid
respondents in raising the defense of double jeopardy should another case based on the same
incidents be filed against them. While this Court does not make any conclusive findings of bad
faith on the part of the RTC judge and the public prosecutor, it deems it proper to issue a
reminder to officers of the court to avoid all appearances of suspicious or questionable behavior
so as not to unduly strain public trust.

IN VIEW OF THE FOREGOING, the instant Petition is GRANTED. The Orders dated 11
February 2004 and 29 June 2004 of Branch 45 of the Regional Trial Court of the City of Manila
dismissing Criminal Cases No. 01-197839 and No. 03-213403, are REVERSED and SET
ASIDE. The records of this case shall be remanded to the trial court in order that it may resolve
the Motion to Withdraw Informations filed by the public prosecutor based on an independent
assessment of the evidence in this case.

SO ORDERED.

THIRD DIVISION
[ G.R. No. 189669, February 16, 2015 ]
PILIPINAS SHELL PETROLEUM CORPORATION AND PETRON CORPORATION,
PETITIONERS, VS. ROMARS INTERNATIONAL GASES CORPORATION, RESPONDENT.

DECISION
PERALTA, J.:
This deals with the Petition for Review on Certiorari under Rule 45 of the Rules of Court praying
that the Decision[1] of the Court of Appeals (CA), dated March 13, 2009, and the Resolution[2]
dated September 14, 2009, denying petitioner's motion for reconsideration thereof, be reversed
and set aside.

The antecedent facts are as follow:

Petitioners received information that respondent was selling, offering for sale, or distributing
liquefied petroleum gas (LPG) by illegally refilling the steel cylinders manufactured by and
bearing the duly registered trademark and device of respondent Petron. Petron then obtained
the services of a paralegal investigation team who sent their people to investigate. The
investigators went to respondent's premises located in San Juan, Baao, Camarines Sur,
bringing along four empty cylinders of Shellane, Gasul, Total and Superkalan and asked that the
same be refilled. Respondent's employees then refilled said empty cylinders at respondent's
refilling station. The refilled cylinders were brought to the Marketing Coordinator of Petron Gasul
who verified that respondent was not authorized to distribute and/or sell, or otherwise deal with
Petron LPG products, and/or use or imitate any Petron trademarks. Petitioners then requested
the National Bureau of Investigation (NBI) to investigate said activities of respondent for the
purpose of apprehending and prosecuting establishments conducting illegal refilling, distribution
and/or sale of LPG products using the same containers of Petron and Shell, which acts
constitute a violation of Section 168,[3] in relation to Section 170[4] of Republic Act (R.A.) No.
8293, otherwise known as the Intellectual Property Code of the Philippines, and/or Section 2[5]
of R.A. No. 623, otherwise known as An Act To Regulate the Use of Duly Stamped or Marked
Bottles, Boxes, Casks, Kegs, Barrels and Other Similar Containers.

The NBI proceeded with their investigation and reportedly found commercial quantities of Petron
Gasul and Shellane cylinders stockpiled at respondent's warehouse. They also witnessed
trucks coming from respondent's refilling facility loaded with Gasul, Shellane and Marsflame
cylinders, which then deposit said cylinders in different places, one of them a store called
"Edrich Enterprises" located at 272 National Highway, San Nicolas, Iriga City. The investigators
then bought Shellane and Gasul cylinders from Edrich Enterprises, for which they were issued
an official receipt.

Thus, the NBI, in behalf of Petron and Shell, filed with the Regional Trial Court of Naga City
(RTC-Naga), two separate Applications for Search Warrant for Violation of Section 155.1,[6] in
relation to Section 170[7] of R.A. No. 8293 against respondent and/or its occupants. On
October 23, 2002, the RTC-Naga City issued an Order granting said Applications and Search
Warrant Nos. 2002-27 and 2002-28 were issued. On the same day, the NBI served the
warrants at the respondent's premises in an orderly and peaceful manner, and articles or items
described in the warrants were seized.
On November 4, 2002, respondent filed a Motion to Quash Search Warrant Nos. 2002-27 and
2002-28, where the only grounds cited were: (a) there was no probable cause; (b) there had
been a lapse of four weeks from the date of the test-buy to the date of the search and seizure
operations; (c) most of the cylinders seized were not owned by respondent but by a third
person; and (d) Edrich Enterprises is an authorized outlet of Gasul and Marsflame. In an Order
dated February 21, 2003, the RTC-Naga denied the Motion to Quash.

However, on March 27, 2003, respondent's new counsel filed an Appearance with Motion for
Reconsideration. It was only in said motion where respondent raised for the first time, the issue
of the impropriety of filing the Application for Search Warrant at the RTC-Naga City when the
alleged crime was committed in a place within the territorial jurisdiction of the RTC-Iriga City.
Respondent pointed out that the application filed with the RTC-Naga failed to state any
compelling reason to justify the filing of the same in a court which does not have territorial
jurisdiction over the place of the commission of the crime, as required by Section 2 (b), Rule 126
of the Revised Rules of Criminal Procedure. Petitioner opposed the Motion for Reconsideration,
arguing that it was already too late for respondent to raise the issue regarding the venue of the
filing of the application for search warrant, as this would be in violation of the Omnibus Motion
Rule.

In an Order dated July 28, 2003, the RTC-Naga issued an Order granting respondent's Motion
for Reconsideration, thereby quashing Search Warrant Nos. 2002-27 and 2002-28.

Petitioner then appealed to the CA, but the appellate court, in its Decision dated March 13,
2009, affirmed the RTC Order quashing the search warrants. Petitioner's motion for
reconsideration of the CA Decision was denied per Resolution dated September 14, 2009.

Elevating the matter to this Court via a petition for review on certiorari, petitioner presents herein
the following issues:

A.

THE COURT OF APPEALS GRAVELY ERRED IN RULING THAT VENUE IN AN

APPLICATION FOR SEARCH WARRANT IS JURISDICTIONAL. THIS IS BECAUSE A
SEARCH WARRANT CASE IS NOT A CRIMINAL CASE.

B.

THE COURT OF APPEALS GRAVELY ERRED IN RULING THAT RESPONDENT'S MOTION

TO QUASH IS NOT SUBJECT TO THE OMNIBUS MOTION RULE AND THAT THE ISSUE OF
LACK OF JURISDICTION MAY NOT BE WAIVED AND MAY EVEN BE RAISED FOR THE
FIRST TIME ON APPEAL.[8]

Petitioner's arguments deserve closer examination.

Section 2, Rule 126 of the Revised Rules of Criminal Procedure provides thus:

SEC. 2. Court where applications for search warrant shall be filed. - An application for search
warrant shall be filed with the following:
(a) Any court within whose territorial jurisdiction a crime was committed.

(b) For compelling reasons stated in the application, any court within the judicial region where
the crime was committed if the place of the commission of the crime is known, or any court
within the judicial region where the warrant shall be enforced.
However, if the criminal action has already been filed, the application shall only be made in the
court where the criminal action is pending. (Emphasis supplied)

The above provision is clear enough. Under paragraph (b) thereof, the application for search
warrant in this case should have stated compelling reasons why the same was being filed with
the RTC-Naga instead of the RTC-Iriga City, considering that it is the latter court that has
territorial jurisdiction over the place where the alleged crime was committed and also the place
where the search warrant was enforced. The wordings of the provision is of a mandatory
nature, requiring a statement of compelling reasons if the application is filed in a court which
does not have territorial jurisdiction over the place of commission of the crime. Since Section 2,
Article III of the 1987 Constitution guarantees the right of persons to be free from unreasonable
searches and seizures, and search warrants constitute a limitation on this right, then Section 2,
Rule 126 of the Revised Rules of Criminal Procedure should be construed strictly against state
authorities who would be enforcing the search warrants. On this point, then, petitioner's
application for a search warrant was indeed insufficient for failing to comply with the requirement
to state therein the compelling reasons why they had to file the application in a court that did not
have territorial jurisdiction over the place where the alleged crime was committed.

Notwithstanding said failure to state the compelling reasons in the application, the more
pressing question that would determine the outcome of the case is, did the RTC-Naga act
properly in taking into consideration the issue of said defect in resolving respondent's motion for
reconsideration where the issue was raised for the very first time? The record bears out that,
indeed, respondent failed to include said issue at the first instance in its motion to quash. Does
the omnibus motion rule cover a motion to quash search warrants?

The omnibus motion rule embodied in Section 8, Rule 15, in relation to Section 1, Rule 9,
demands that all available objections be included in a party's motion, otherwise, said objections
shall be deemed waived; and, the only grounds the court could take cognizance of, even if not
pleaded in said motion are: (a) lack of jurisdiction over the subject matter; (b) existence of
another action pending between the same parties for the same cause; and (c) bar by prior
judgment or by statute of limitations.[9] It should be stressed here that the Court has ruled in a
number of cases that the omnibus motion rule is applicable to motions to quash search
warrants.[10] Furthermore, the Court distinctly stated in Abuan v. People,[11] that "the motion
to quash the search warrant which the accused may file shall be governed by the omnibus
motion rule, provided, however, that objections not available, existent or known during the
proceedings for the quashal of the warrant may be raised in the hearing of the motion to
suppress x x x."[12]

In accordance with the omnibus motion rule, therefore, the trial court could only take cognizance
of an issue that was not raised in the motion to quash if, (1) said issue was not available or
existent when they filed the motion to quash the search warrant; or (2) the issue was one
involving jurisdiction over the subject matter. Obviously, the issue of the defect in the
application was available and existent at the time of filing of the motion to quash. What remains
to be answered then is, if the newly raised issue of the defect in the application is an issue of
jurisdiction.

In resolving whether the issue raised for the first time in respondent's motion for reconsideration
was an issue of jurisdiction, the CA rationcinated, thus:

It is jurisprudentially settled that the concept of venue of actions in criminal cases, unlike in civil
cases, is jurisdictional. The place where the crime was committed determines not only the
venue of the action but is an essential element of jurisdiction. It is a fundamental rule that for
jurisdiction to be acquired by courts in criminal cases, the offense should have been committed
or any one of its essential ingredients should have taken place within the territorial jurisdiction of
the court. Territorial jurisdiction in criminal cases is the territory where the court has jurisdiction
to take cognizance or to try the offense allegedly committed therein by the accused. Thus, it
cannot take jurisdiction over a person charged with an offense allegedly committed outside of
that limited territory.[13]

Unfortunately, the foregoing reasoning of the CA, is inceptionally flawed, because as

pronounced by the Court in Malaloan v. Court of Appeals,[14] and reiterated in the more recent
Worldwide Web Corporation v. People of the Philippines,[15] to wit:

x x x as we held in Malaloan v. Court of Appeals, an application for a search warrant is a

"special criminal process," rather than a criminal action:
The basic flaw in this reasoning is in erroneously equating the application for and the obtention
of a search warrant with the institution and prosecution of a criminal action in a trial court. It
would thus categorize what is only a special criminal process, the power to issue which is
inherent in all courts, as equivalent to a criminal action, jurisdiction over which is reposed in
specific courts of indicated competence. It ignores the fact that the requisites, procedure and
purpose for the issuance of a search warrant are completely different from those for the
institution of a criminal action.

For, indeed, a warrant, such as a warrant of arrest or a search warrant, merely constitutes
process. A search warrant is defined in our jurisdiction as an order in writing issued in the name
of the People of the Philippines signed by a judge and directed to a peace officer, commanding
him to search for personal property and bring it before the court. A search warrant is in the
nature of a criminal process akin to a writ of discovery. It is a special and peculiar remedy,
drastic in its nature, and made necessary because of a public necessity.

In American jurisdictions, from which we have taken our jural concept and provisions on search
warrants, such warrant is definitively considered merely as a process, generally issued by a
court in the exercise of its ancillary jurisdiction, and not a criminal action to be entertained by a
court pursuant to its original jurisdiction. x x x. (Emphasis supplied)
Clearly then, an application for a search warrant is not a criminal action. x x x[16] (Emphasis
supplied)

The foregoing explanation shows why the CA arrived at the wrong conclusion. It gravely erred
in equating the proceedings for applications for search warrants with criminal actions
themselves. As elucidated by the Court, proceedings for said applications are not criminal in
nature and, thus, the rule that venue is jurisdictional does not apply thereto. Evidently, the issue
of whether the application should have been filed in RTC-Iriga City or RTC-Naga, is not one
involving jurisdiction because, as stated in the afore-quoted case, the power to issue a special
criminal process is inherent in all courts.

Inferring from the foregoing, the Court deems it improper for the RTC-Naga to have even taken
into consideration an issue which respondent failed to raise in its motion to quash, as it did not
involve a question of jurisdiction over the subject matter. It is quite clear that the RTC-Naga had
jurisdiction to issue criminal processes such as a search warrant.

Moreover, the Court must again emphasize its previous admonition in Spouses Anunciacion v.
Bocanegra,[17] that:

We likewise cannot approve the trial court's act of entertaining supplemental motions x x x
which raise grounds that are already deemed waived. To do so would encourage lawyers and
litigants to file piecemeal objections to a complaint in order to delay or frustrate the prosecution
of the plaintiff's cause of action.[18]

WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals, dated March
13, 2009, and the Resolution dated September 14, 2009 in CA-G.R. CV No. 80643 are
REVERSED. The Order dated February 21, 2003 issued by the Regional Trial Court of Naga,
Camarines Sur, Branch 24, denying respondent's motion to quash, is REINSTATED.

SO ORDERED.
HILARIO P. SORIANO and ROSALINDA ILAGAN, petitioners, vs. PEOPLE OFTHE
PHILIPPINES, BANGKO SENTRAL NG PILIPINAS (BSP, and PHILIPPINEDEPOSIT
INS!RAN"E "ORPORATION (PDI", respondents. G.R. Nos.#$%$#&'#. )*ne +, -%.

Motion to Quash; The fundamental test in considering a motion to quash anchoredon Section
3(a), Rule 117 of the 19! Rules on "riminal #rocedure, is the su$cienc%of the a&erments in the
information; that is, 'hether the facts alleged, if h%otheticall% admitted, 'ould estalish the
essential elements of the o*ensecharged as de+ned % la' -acts that constitute the defense of
the etitionersagainst the charge under the information must e ro&ed % them during trial
Suchfacts or circumstances do not constitute roer grounds for a motion to quash theinformation
on the ground that the material a&erments do not constitute theo*ense

Fa/ts

. Soriano and /lagan 'ere the #resident and 0eneral Manager, resecti&el%, of the Rural an2 of
San Miguel (ulacan), /nc (RSM) llegedl%, on 4une 57, 1997and ugust 51, 1997, during their
incumenc% as resident and manager of thean2, etitioners indirectl% otained loans from RSM
The% falsi+ed the loanalications and other an2 records, and made it aear that 6irgilio 4 Malang
andRogelio Maaol otained loans of #1!M each, 'hen in fact the% did not The rosecutor charged
Soriano in the RT" 'ith &iolation of Section 3 of R 8o337 or the 0eneral an2ing ct, as amended or
6iolation of the irector, :$cer,Stoc2holder or Related /nterest (:SR/) Rules (:SR/ Rules) n
information forestafa thru falsi+cation of commercial document 'as also +led against Soriano
and/lagan#etitioners mo&ed to quash the informations arguing that the rosecutor chargedmore
than one o*ense for a single act Soriano 'as charged 'ith &iolation of :SR/rules and estafa thru
falsi+cation of commercial document for allegedl% securing+ctitious loans The% further argued
that the facts as alleged in the information donot constitute an o*ense RT" denied the motion to
quash " sustained the denialof etitioners searate motions to quash

Iss*e0

<hether or not the contention of the etitioner has merit

He1d0

The contention has no merit/n =one% & #eole, this "ourt, in uholding the +ling of multile
charges against theaccused, held.>s earl% as the start of the last centur%, this "ourt had ruled
that a single act orincident might o*end against t'o or more entirel% distinct and unrelated
ro&isionsof la' thus ?ustif%ing the rosecution of the accused for more than one o*ense Theonl%
limit to this rule is the "onstitutional rohiition that no erson

PEOPLE v. LTSG. DOMINADOR BAYABOS +DECISION

SERENO, C.J.:

While this Court has recently faced questions on the criminal liability of fraternity members for
hazing, this case presents novel questions on the extent of liability of schools and school
authorities under Republic Act No. 8049, or the Anti-Hazing Law.

The responsibility given to an academic institution for the welfare of its students has been
characterized by law and judicial doctrine as a form of special parental authority and
responsibility.[1] This responsibility has been amplified by the enactment of the Anti-Hazing
Law, in that the failure by school authorities to take any action to prevent the offenses as
provided by the law exposes them to criminal liability as accomplices in the criminal acts. Thus,
the institution and its officers cannot stand idly by in the face of patently criminal acts committed
within their sphere of responsibility. They bear the commensurate duty to ensure that the crimes
covered by the Anti-Hazing Law are not committed.

It was within this legal framework that the school authorities of the Philippine Merchant Marine
Academy (PMMA) were criminally charged before the Sandiganbayan as accomplices to hazing
under the Anti-Hazing Law. Before they were arraigned, the Sandiganbayan quashed[2] the
Information against them on the basis of the dismissal of the criminal case against the principal
accused and, the failure to include in the Information the material averments required by the
Anti-Hazing Law.

Consequently, this Petition was filed before this Court questioning the Sandiganbayan's quashal
of the Information.

The Case Background

Fernando C. Balidoy, Jr. (Balidoy) was admitted as a probationary midshipman at the PMMA.[3]
In order to reach active status, all new entrants were required to successfully complete the
mandatory "Indoctrination and Orientation Period,"[4] which was set from 2 May to 1 June
2001.[5] Balidoy died on 3 May 2001.[6]

The National Bureau of Investigation (NBI) probed the death of Balidoy. After months of
investigation, it forwarded its findings[7] to the provincial prosecutor of Zambales for the
preliminary investigation and possible criminal prosecution of those involved in the orientation
and indoctrination of the PMMA Class of 2005.[8] Subsequently, the Assistant Provincial
Prosecutor of Zambales issued a Resolution[9] finding probable cause to charge the following
as principals to the crime of hazing: Aldwin Alvarez (Alvarez), Leotharius C. Montez (Montez),
Rudence G. Reyes (Reyes), and Jed Nicholas S. Simpas (Simpas) collectively, Alvarez et al. A
criminal case against Alvarez et al. was then filed with the Regional Trial Court of Iba, Zambales
(RTC Zambales).
The Assistant Provincial Prosecutor also endorsed to the Deputy Ombudsman for the Military
the finding of probable cause to charge the following school authorities as accomplices to
hazing: Rear Admiral (RADM) Virginio R. Aris (Aris), Lieutenant Senior Grade (LTSG.)
Dominador D. Bayabos (Bayabos), Lieutenant Junior Grade (LTJG.) Gerry P. Doctor (Doctor),
LTJG. Manny Ferrer (Ferrer), LTJG. Kruzaldo Mabborang (Mabborang), LTJG. Ronald G.
Magsino (Magsino), Ensign (ENS.) Dennis Velasco (Velasco), and ENS. Dominador Operio
(Operio) collectively, respondents. The Ombudsman Investigator agreed with the findings of the
Assistant Provincial Prosecutor. The matter was thus ordered re-docketed for the purpose of
conducting the proper administrative proceedings against respondents for grave misconduct
and abuse of authority.[10] The Office of the Special Prosecutor eventually filed with the
Sandiganbayan a criminal case charging respondents as accomplices to the crime of
hazing.[11]

Meanwhile, the RTC Zambales issued an Order dismissing the Information against the principal
accused, Alvarez et al.[12] The Order was later entered in the Book of Entries of Judgment.

Bayabos, Ferrer, Magsino, Doctor, and Operio (collectively, Bayabos et al.) filed a Motion to
Quash the Information.[13] They argued that the Information did not contain all the essential
elements of the offense. They also pointed out that there was no allegation that the purported
act had been made a prerequisite for admission to the PMMA, especially considering that the
victim had already been accepted in the academy. Moreover, they stressed that there was no
averment in the Information that the PMMA was a fraternity, a sorority, or an organization. Also
underscored was the absence in the Information of any assertion that the alleged hazing was
not part of the "physical, mental, and psychological testing and training procedure and practices
to determine and enhance the physical, mental and psychological fitness of prospective regular
members." Furthermore, they emphasized that there was no allegation that they were given
prior written notice of the hazing and that they had permitted the activity.

As a final point, Bayabos et al.argued that the case against the principal accused had already
been dismissed with finality by the RTC. There being no more principals with whom they could
have cooperated in the execution of the offense, they asserted that the case against them must
be dismissed.

The Special Prosecutor opposed[14]the motion of Bayabos et al. He insisted that the
Information alleged the material facts that would sufficiently establish the presence of the
essential ingredients of the crime of accomplice to hazing. He also stressed that there was
nothing in the law requiring that the principals must be prosecuted first before a case could be
filed against the accomplices. The Comment/Opposition of the Special Prosecutor was,
however, silent on the issue of whether the Information contained an allegation that the
supposed hazing had been made a prerequisite for admission to the PMMA, and whether the
academy was considered an "organization" within the meaning of the Anti-Hazing Law.
Six days before Bayabos et al. were set to be arraigned,[15] the Sandiganbayan issued the
assailed Resolution (SB Resolution I) quashing the Information and dismissing the criminal case
against them. According to the court, the fact that the charge against the principal accused
Alvarez et al. was dismissed with finality favorably carried with it the indictment against those
charged as accomplices, whose criminal responsibility was subordinate to that of the former. It
stressed that before there can be an accomplice, there must be a principal by direct
participation, the latter being the originator of the criminal design. In this case, as there were no
principal perpetrators to speak of, necessarily, there was no one else with whom they could
have cooperated in the execution of the crime of hazing. In view of the dismissal of the case
against the principals, the court ruled that the Information charging Bayabos et al.as
accomplices could no longer stand on its own.

In any event, the Sandiganbayan found that the Information charged no offense, and that the
allegations therein were mere conclusions of law. It also stressed that there was no averment
that the alleged hazing was not part of the "physical, mental and psychological testing and
training procedure and practices to determine and enhance the physical, mental and
psychological fitness of prospective regular members" of the Armed Forces of the Philippines
(AFP) and the Philippine National Police (PNP), pursuant to Section 1 of the law.[16] It must be
noted, though, that the Sandiganbayan did not make any categorical determination that the
PMMA was considered an "organization" within the meaning of the Anti-Hazing Law.

Six months after the Sandiganbayan issued its Resolution dismissing the criminal case against
Bayabos et al., the accused Velasco surrendered and then filed his own Motion to Quash,[17]
adopting the grounds raised by that court. His arraignment was set on 14 August 2006.[18]
However, on 3 August 2006, the Sandiganbayan issued another Resolution (SB Resolution II)
dismissing the case against him. According to the court, since Velasco was similarly situated as
Bayabos et al., the Information against him must likewise be quashed in light of the reasoning
laid out in SB Resolution I. In the same Resolution, the Sandiganbayan ex proprio motu
dismissed the case against Aris and Mabborang (collectively, Velasco et al.), explaining that
they, too, had been charged under the same Information for the same offense.[19] It is unclear
from the records[20]whether the accused Aris and Mabborang surrendered or were arrested, or
whether the Order of Arrest[21] was recalled prior to the dismissal of the case.

Aggrieved, the Office of the Ombudsman, through the Special Prosecutor, filed with this Court
on 13 March 2006 a Petition assailing SB Resolution I and, on 16 October 2006, another
Petition challenging SB Resolution II.

The Issues

The Special Prosecutor asks this Court to address a number of legal issues. After a thorough
evaluation of the Petitions, however, we cull the threshold issues needing to be addressed by
this Court as follows:
Whether the prosecution of respondents for the crime of accomplice to hazing can proceed in
spite of the dismissal with finality of the case against the principal accused

Whether the Information filed against respondents contains all the material averments for the
prosecution of the crime of accomplice to hazing under the Anti-Hazing Law

Our Ruling

With regard to the first issue, we agree with petitioner that the Sandiganbayan erred when it
dismissed outright the case against respondents, on the sole ground that the case against the
purported principals had already been dismissed. It is a settled rule that the case against those
charged as accomplices is not ipso factodismissed in the absence of trial of the purported
principals; the dismissal of the case against the latter; or even the latter's acquittal, especially
when the occurrence of the crime has in fact been established.[22] In People v. Rafael,[23] the
Supreme Court En Bancreasoned thus: "The corresponding responsibilities of the principal,
accomplice, and accessory are distinct from each other. As long as the commission of the
offense can be duly established in evidence, the determination of the liability of the accomplice
or accessory can proceed independently of that of the principal." Accordingly, so long as the
commission of the crime can be duly proven, the trial of those charged as accomplices to
determine their criminal liability can proceed independently of that of the alleged principal.[24]

We note in the present case that Bayabos et al. merely presented the Order of Entry of
Judgment[25]dismissing the case against Alvarez et al. Nowhere is it mentioned in the order
that the case was dismissed against the alleged principals, because no crime had been
committed. In fact, it does not cite the trial court's reason for dismissing the case. Hence, the
Sandiganbayan committed an error when it simply relied on the Order of Entry of Judgment
without so much as scrutinizing the reason for the dismissal of the case against the purported
principals.

Nonetheless, as will be discussed below, we affirm the quashal of the Information against
respondents.

Section 14, Article III of the Constitution, recognizes the right of the accused to be informed of
the nature and cause of the accusation against them. As a manifestation of this constitutional
right, the Rules of Court requires that the information charging persons with an offense be
"sufficient." One of the key components of a "sufficient information" is the statement of the acts
or omissions constituting the offense charged, subject of the complaint.[26] The information
must also be crafted in a language ordinary and concise enough to enable persons of common
understanding to know the offense being charged against them.[27] This approach is intended
to allow them to suitably prepare for their defense, as they are presumed to have no
independent knowledge of the facts constituting the offense they have purportedly
committed.[28] The information need not be in the same kind of language used in the law relied
upon.[29]

At any time before entering a plea, an accused may assail the information filed with the court
based on the grounds enumerated in Section 3, Rule 117 of the Rules of Court, one of which is
the claim that the facts charged do not constitute an offense. In assessing whether an
information must be quashed on that ground, the basic test[30] is to determine if the facts
averred would establish the presence of the essential elements of the crime as defined in the
law. The information is examined without consideration of the truth or veracity of the claims
therein, as these are more properly proven or controverted during the trial. In the appraisal of
the information, matters aliunde are not taken into account.

We quote the pertinent provision of the Anti-Hazing Law as follows:

Section 1. Hazing, as used in this Act, is an initiation rite or practice as a prerequisite for
admission into membership in a fraternity, sorority or organization by placing the recruit,
neophyte or applicant in some embarrassing or humiliating situations such as forcing him to do
menial, silly, foolish and other similar tasks or activities or otherwise subjecting him to physical
or psychological suffering or injury.

The term "organization" shall include any club or the Armed Forces of the Philippines, Philippine
National Police, Philippine Military Academy, or officer and cadet corp of the Citizen's Military
Training and Citizen's Army Training. The physical, mental and psychological testing and
training procedure and practices to determine and enhance the physical, mental and
psychological fitness of prospective regular members of the Armed Forces of the Philippines
and the Philippine National Police as approved by the Secretary of National Defense and the
National Police Commission duly recommended by the Chief of Staff, Armed Forces of the
Philippines and the Director General of the Philippine National Police shall not be considered as
hazing for the purposes of this Act.

Sec. 4. x x x x.

The school authoritiesincluding faculty members who consent to the hazing or who have actual
knowledge thereof, but failed to take any action to prevent the same from occurring shall be
punished as accomplices for the acts of hazing committed by the perpetrators. (Emphasis
supplied)

The crime of hazing is thus committed when the following essential elements are established:
(1) a person is placed in some embarrassing or humiliating situation or subjected to physical or
psychological suffering or injury; and (2) these acts were employed as a prerequisite for the
person's admission or entry into an organization. In the crime of hazing, the crucial ingredient
distinguishing it from the crimes against persons defined under Title Eight of the Revised Penal
Code is the infliction by a person of physical or psychological suffering on another in furtherance
of the latter's admission or entry into an organization.

In the case of school authorities and faculty members who have had no direct participation in
the act, they may nonetheless be charged as accomplices if it is shown that (1) hazing, as
established by the above elements, occurred; (2) the accused are school authorities or faculty
members; and (3) they consented to or failed to take preventive action against hazing in spite
actual knowledge thereof.

First, we reject the contention of respondents that PMMA should not be considered an
organization. Under the Anti-Hazing Law, the breadth of the term organizationincludes but is not
limited to groups, teams, fraternities, sororities, citizen army training corps, educational
institutions, clubs, societies, cooperatives, companies, partnerships, corporations, the PNP, and
the AFP.[31] Attached to the Department of Transportation and Communications,[32] the PMMA
is a government-owned educational institution[33] established for the primary purpose of
producing efficient and well-trained merchant marine officers.[34] Clearly, it is included in the
term organizationwithin the meaning of the law.

We also disagree with the Sandiganbayan ruling that the quashal of the Information was
warranted for failure to allege that the purported acts were not covered by the exemption
relating to the duly recommended and approved "testing and training procedure and practices"
for prospective regular members of the AFP and the PNP. This exemption is an affirmative
defense in, not an essential element of, the crime of accomplice to hazing. It is an assertion that
must be properly claimed by the accused, not by the prosecution. The reason for this rule is that
the accused carry the burden of proof in establishing by clear and convincing evidence that they
have satisfied the requirements thereof.[35] Thus, the prosecution's failure to point out in the
Information that the exception is inapplicable would not justify the quashal of that Information.

Nevertheless, we find albeit for a different reason that the Motion to Quash must be granted, as
the Information does not include all the material facts constituting the crime of accomplice to
hazing. The Information charging respondents reads as follows:

The undersigned Assistant Special Prosecutor, Office of the Special Prosecutor, hereby
accuses [RADM] Virginio R. Aris, [LTSG.] Dominador D. BAYABOS, [LTJG.] Manny G. Ferrer,
[LTJG.] Ronald G. Magsino, [LTJG.] Kruzaldo G. Mabborang, [LTJG.] Gerry P. Doctor, [ENS.]
Dominador B. Operio, Jr., and [ENS.] Dennis S. Velasco, as accomplices for Violation of R.A.
8049 (Anti-Hazing Law), committed as follows:

That during the period from the 2nd of May 2001 up to the 3rd of May 2001, inside the campus
of the Philippine Merchant Marine Academy (PMMA), in the Municipality of San Narciso,
Province of Zambales, Philippines, and within the jurisdiction of this Honorable Court accused
RADM Virginio R. Aris, President of PMMA with [Salary Grade (SG) 29]; LTSG. Dominador D.
BAYABOS, Commandant of the Cadets; (LTJG.) Manny G. Ferrer, 1stBatallion Officer; LTJG.
Ronald G. Magsino, Security Officer; LTJG. Kruzaldo G. Mabborang, 2nd Battalion Officer;
LTJG. Gerry P. Doctor, Batl. Mast.; ENS. Dominador B. Operio, Jr., 1stBattalion Company
Officer; and ENS. Dennis S. Velasco, Mess Officer, all public officers, conspiring, confederating
and mutually helping one another, committing the offense in relation to office and while in the
performance of their duties as such public officers being the school authorities and/or faculty
members did then and there willfully, unlawfully and criminally, consent or have actual
knowledge of the hazing perpetrated by the principal accused, all First Class Midshipmen,
against probationary midshipman FERNANDO BALIDOy, JR. during the school's Indoctrination
and Orientation; and, fail to take any action to prevent the occurrence of the hazing and the
infliction of psychological and physical injuries against said FERNANDO BALIDOy, JR. thereby
causing the instantaneous death of the latter, to the damage and prejudice of the heirs of said
FERNANDO BALIDOy, JR.[36]

As can be gleaned from the above, the indictment merely states that psychological pain and
physical injuries were inflicted on the victim. There is no allegation that the purported acts were
employed as a prerequisite for admission or entry into the organization. Failure to aver this
crucial ingredient would prevent the successful prosecution of the criminal responsibility of the
accused, either as principal or as accomplice, for the crime of hazing. Plain reference to a
technical term[37] in this case, hazing is insufficient and incomplete, as it is but a
characterization of the acts allegedly committed and thus a mere conclusion of law. Section 6,
Rule 110 of the Rules of Court, expressly states that the information must include, inter alia,
both "the designation of the offense given by the statute" and "the acts or omissions complained
of as constituting the offense." The Special Prosecutor's belated argument[38] in his Petition
before this Court that the successful completion of the indoctrination and orientation program
was used as a prerequisite for continued admission to the academy i.e., attainment of active
midshipman status does not cure this defect in the Information. Thus, the Information must be
quashed, as the ultimate facts it presents do not constitute the crime of accomplice to hazing.

Finally, we reject the Special Prosecutor's claim that the Sandiganbayan should just have
ordered the filing of another information or the correction of the defect by amendment, instead of
dismissing the case outright.[39]Indeed, Section 4, Rule 117 of the Rules of Court, provides that
if a motion to quash is based on the ground that the facts charged do not constitute an offense,
the court shall give the prosecution a chance to correct the defect by amendment. However, the
provision also states that if the prosecution fails to make the amendment, the motion shall be
granted. Here, we point out that the Special Prosecutor insisted in his Comment on the Motion
to Quash[40] that there was no defect in the Information. Neither has he filed a new information
after the motion was sustained, pursuant to Section 5, Rule 117. Thus, the Sandiganbayan was
correct in ordering the quashal of the Information and the eventual dismissal of the case.

This does not mean, however, that the Special Prosecutor is now precluded from filing another
information. Section 6, Rule 117, specifically states that an order sustaining a motion to quash
would not bar another prosecution. That is, of course, unless respondents are able to prove that
the criminal action or liability has been extinguished, or that double jeopardy has already
attached.

Given the foregoing, the Court no longer sees the necessity to pass upon the other issues
raised by petitioner.

WHEREFORE, the petition for review on certiorari in G.R. No. 171222 is hereby DENIED and
the petition for certiorari in G.R. No. 174786, DISMISSED. The dismissal of the case in
Sandiganbayan Resolutions dated 27 January 2006 and 3 August 2006 in Criminal Case No.
28339 are thus AFFIRMED.

SO ORDERED.

G.R. No. 183994 June 30, 2014

WILLIAM CO a.k.a. XU QUING HE, Petitioner,

vs.
NEW PROSPERITY PLASTIC PRODUCTS, represented by ELIZABETH UY,1 Respondent.

DECISION

PERALTA, J.:

Assailed in this petition for review on certiorari under Rule 45 of the 1997 Revised Rules on Civil
Procedure (Rules) are the April 30, 20082 and August 1, 20083 Resolutions of the Court of
Appeals (CA) in CA-G.R. SP No. 102975, which dismissed the petition and denied the motion
for reconsideration, respectively. In effect, the CA affirmed the January 28, 2008 Decision4 of
the Regional Trial Court (RTC) Branch 121 of Caloocan City, which annulled and set aside the
Orders dated September 4, 20065 and November 16, 20066 of the Metropolitan Trial Court
(MeTC), Branch 50 of Caloocan City, permanently dismissing Criminal Case Nos. 206655-59,
206661-77 and 209634.

The facts are simple and undisputed:

Respondent New Prosperity Plastic Products, represented by Elizabeth Uy (Uy), is the private
complainant in Criminal Case Nos. 206655-59, 206661-77 and 209634 for Violation of Batas
Pambansa (B.P.) Bilang 22 filed against petitioner William Co (Co), which were raffled to the
MeTC Branch. 49 of Caloocan City. In the absence of Uy and the private counsel, the cases
were provisionally dismissed on June 9, 2003 in open court pursuant to Section 8, Rule 117 of
the Revised Rules of Criminal Procedure (Rules).7 Uy received a copy of the June9, 2003
Order on July 2, 2003, while her counsel-of-record received a copy a day after.8On July 2,
2004, Uy, through counsel, filed a Motion to Revive the Criminal Cases.9 Hon. Belen B. Ortiz,
then Presiding Judge of the MeTC Branch 49, granted the motion on October 14, 2004 and
denied Co’s motion for reconsideration.10 When Co moved for recusation, Judge Ortiz inhibited
herself from handling the criminal cases per Order dated January 10, 2005.11 The cases were,
thereafter, raffled to the MeTC Branch 50 of Caloocan City. On March 17, 2005, Co filed a
petition for certiorari and prohibition with prayer for the issuance of a temporary restraining order
(TRO)/writ of preliminary injunction (WPI) before the RTC of Caloocan City challenging the
revival of the criminal cases.12 It was, however, dismissed for lack of merit on May 23, 2005.13
Co’s motion for reconsideration was, subsequently, denied on December 16, 2005.14 Co then
filed a petition for review on certiorari under Rule 45 before the Supreme Court, which was
docketed as G.R. No. 171096.15 We dismissed the petition per Resolution dated February 13,
2006.16There being no motion for reconsideration filed, the dismissal became final and
executory on March 20, 2006.17

Before the MeTC Branch 50 where Criminal Case Nos. 206655-59, 206661-77 and 209634
were re-raffled after the inhibition of Judge Ortiz, Co filed a "Motion for Permanent Dismissal" on
July 13, 2006.18 Uy opposed the motion, contending that the motion raised the same issues
already resolved with finality by this Court in G.R. No. 171096.19 In spite of this, Judge Esteban
V. Gonzaga issued an Order dated September 4, 2006 granting Co’s motion.20 When the court
subsequently denied Uy’s motion for reconsideration on November 16, 2006,21Uy filed a
petition for certiorari before the RTC of Caloocan City. On January 28, 2008, Hon. Judge
Adoracion G. Angeles of the RTC Branch 121 acted favorably on the petition, annulling and
setting aside the Orders dated September 4, 2006 and November 16, 2006 and directing the
MeTC Branch 50 to proceed with the trial of the criminal cases.22 Co then filed a petition for
certiorari before the CA, which, as aforesaid, dismissed the petition and denied his motion for
reconsideration. Hence, this present petition with prayer for TRO/WPI.

According to Co, the following issues need to be resolved in this petition:

1. WHETHER OR NOT THE DISMISSAL OF THE CRIMINAL CASES AGAINST PETITIONER

ONTHE GROUND OF DENIAL OF HIS RIGHT TO SPEEDY TRIAL CONSTITUTES FINAL
DISMISSAL OF THESE CASES;

2. WHETHER OR NOT THE METC ACTED WITH JURISDICTION IN REVIVING THE

CRIMINAL CASES AGAINST PETITIONER WHICH WERE DISMISSED ON THE GROUND OF
DENIAL OF HIS RIGHT TO SPEEDY TRIAL; and

3. ASSUMING POR GRATIA ARGUMENTITHE CASES WERE ONLY PROVISIONALLY

DISMISSED:

a. WHETHER THE ONE-YEAR TIMEBAR OF THEIR REVIVAL IS COMPUTED FROM

ISSUANCE OF THE ORDER OF PROVISIONAL DISMISSAL;
b. WHETHER THE ACTUAL NUMBER OF DAYS IN A YEAR IS THE BASIS FOR
COMPUTING THE ONE-YEAR TIME BAR;

c. WHETHER THE PROVISIONALLY DISMISSED CASES AGAINST PETITIONER ARE

REVIVED IPSO FACTO BY THE FILING OF MOTION TO REVIVE THESE CASES.23

Co argues that the June 9, 2003 Order provisionally dismissing Criminal Case Nos. 206655-59,
206661-77 and 209634 should be considered as a final dismissal on the ground that his right to
speedy trial was denied. He reasons out that from his arraignment on March 4, 2002 until the
initial trial on June 9, 2003, there was already a "vexatious, capricious and oppressive" delay,
which is in violation of Section 6 of Republic Act 8493 (Speedy Trial Act of 1998)24 and Section
2, Paragraph 2, Rule 119 of the Revised Rules of Criminal Procedure25mandating that the
entire trial period should not exceed 180 days from the first day of trial. As the dismissal is
deemed final, Co contends that the MeTC lost its jurisdiction over the cases and cannot
reacquire jurisdiction over the same based on a mere motion because its revival would already
put him in double jeopardy.

Assuming that the criminal cases were only provisionally dismissed, Co further posits that such
dismissal became permanent one year after the issuance of the June 9, 2003 Order, not after
notice to the offended party. He also insists that both the filing of the motion to revive and the
trial court’s issuance of the order granting the revival must be within the one-year period. Lastly,
even assuming that the one-year period to revive the criminal cases started on July 2, 2003
when Uy received the June 9, 2003 Order, Co asserts that the motion was filed one day late
since year 2004 was a leap year.

The petition is unmeritorious.

At the outset, it must be noted that the issues raised in this petition were also the meat of the
controversy in Co’s previous petition in G.R. No. 171096, which We dismissed per Resolution
dated February 13, 2006. Such dismissal became final and executory on March 20, 2006. While
the first petition was dismissed mainly due to procedural infirmities, this Court nonetheless
stated therein that "[i]n any event, the petition lacks sufficient showing that respondent court had
committed any reversible error in the questioned judgment to warrant the exercise by this Court
of its discretionary appellate jurisdiction in this case." Hence, upon the finality of Our February
13, 2006 Resolution in G.R. No. 171096, the same already constitutes as res judicata between
the parties. On this ground alone, this petition should have been dismissed outright.

Even if We are to squarely resolve the issues repeatedly raised in the present petition, Co’s
arguments are nonetheless untenable on the grounds as follows:

First, Co’s charge that his right to a speedy trial was violated is baseless. Obviously, he failed to
show any evidence that the alleged "vexatious, capricious and oppressive" delay in the trial was
attended with malice or that the same was made without good cause or justifiable motive on the
part of the prosecution. This Court has emphasized that "‘speedy trial’ is a relative term and
necessarily a flexible concept."26 In determining whether the accused's right to speedy trial was
violated, the delay should be considered in view of the entirety of the proceedings.27 The
factors to balance are the following: (a) duration of the delay; (b) reason therefor; (c) assertion
of the right or failure to assert it; and (d) prejudice caused by such delay.28 Surely, mere
mathematical reckoning of the time involved would not suffice as the realities of everyday life
must be regarded in judicial proceedings which, after all, do not exist in a vacuum, and that
particular regard must be given to the facts and circumstances peculiar to each case.29 "While
the Court recognizes the accused's right to speedy trial and adheres to a policy of speedy
administration of justice, we cannot deprive the State of a reasonable opportunity to fairly
prosecute criminals. Unjustified postponements which prolong the trial for an unreasonable
length of time are what offend the right of the accused to speedy trial."30

Second, Co is burdened to establish the essential requisites of the first paragraph of Section 8,
Rule 117 of the Rules, which are conditions sine qua non to the application of the time-bar in the
second paragraph thereof, to wit: (1) the prosecution with the express conformity of the accused
or the accused moves for a provisional (sin perjuicio) dismissal of the case; or both the
prosecution and the accused move for a provisional dismissal of the case; (2) the offended party
is notified of the motion for a provisional dismissal of the case; (3) the court issues an order
granting the motion and dismissing the case provisionally; and (4) the public prosecutor is
served with a copy of the order of provisional dismissal of the case.31 In this case, it is apparent
from the records that there is no notice of any motion for the provisional dismissal of Criminal
Cases Nos. 206655-59, 206661-77 and 209634 or of the hearing thereon which was served on
the private complainant at least three days before said hearing as mandated by Section 4, Rule
15 of the Rules.32The fact is that it was only in open court that Co moved for provisional
dismissal "considering that, as per records, complainant had not shown any interest to pursue
her complaint."33 The importance of a prior notice to the offended party of a motion for
provisional dismissal is aptly explained in People v. Lacson:34

x x x It must be borne in mind that in crimes involving private interests, the new rule requires
that the offended party or parties or the heirs of the victims must be given adequate a priori
notice of any motion for the provisional dismissal of the criminal case. Such notice may be
served on the offended party or the heirs of the victim through the private prosecutor, if there is
one, or through the public prosecutor who in turn must relay the notice to the offended party or
the heirs of the victim to enable them to confer with him before the hearing or appear in court
during the hearing. The proof of such service must be shown during the hearing on the motion,
otherwise, the requirement of the new rule will become illusory. Such notice will enable the
offended party or the heirs of the victim the opportunity to seasonably and effectively comment
on or object to the motion on valid grounds, including: (a) the collusion between the prosecution
and the accused for the provisional dismissal of a criminal case thereby depriving the State of
its right to due process; (b) attempts to make witnesses unavailable; or (c) the provisional
dismissal of the case with the consequent release of the accused from detention would enable
him to threaten and kill the offended party or the other prosecution witnesses or flee from
Philippine jurisdiction, provide opportunity for the destruction or loss of the prosecution’s
physical and other evidence and prejudice the rights of the offended party to recover on the civil
liability of the accused by his concealment or furtive disposition of his property or the
consequent lifting of the writ of preliminary attachment against his property.35

Third, there is evident want of jurisprudential support on Co’s supposition that the dismissal of
the cases became permanent one year after the issuance of the June 9, 2003 Order and not
after notice to the offended party. When the Rules states that the provisional dismissal shall
become permanent one year after the issuance of the order temporarily dismissing the case, it
should not be literally interpreted as such. Of course, there is a vital need to satisfy the basic
requirements of due process; thus, said in one case:

Although the second paragraph of the new rule states that the order of dismissal shall become
permanent one year after the issuance thereof without the case having been revived, the
provision should be construed to mean that the order of dismissal shall become permanent one
year after service of the order of dismissal on the public prosecutor who has control of the
prosecution without the criminal case having been revived. The public prosecutor cannot be
expected to comply with the timeline unless he is served with a copy of the order of dismissal.36

We hasten to add though that if the offended party is represented by a private counsel the better
rule is that the reckoning period should commence to run from the time such private counsel
was actually notified of the order of provisional dismissal. When a party is represented by a
counsel, notices of all kinds emanating from the court should be sent to the latter at his/her
given address.37 Section 2, Rule 13 of the Rules analogously provides that if any party has
appeared by counsel, service upon the former shall be made upon the latter.38

Fourth, the contention that both the filing of the motion to revive the case and the court order
reviving it must be made prior to the expiration of the one-year period is unsustainable. Such
interpretation is not found in the Rules. Moreover, to permit otherwise would definitely put the
offended party at the mercy of the trial court, which may wittingly or unwittingly not comply.
Judicial notice must be taken of the fact that most, if not all, of our trial court judges have to deal
with clogged dockets in addition to their administrative duties and functions. Hence, they could
not be expected to act at all times on all pending decisions, incidents, and related matters within
the prescribed period of time. It is likewise possible that some of them, motivated by ill-will or
malice, may simply exercise their whims and caprices in not issuing the order of revival on time.

Fifth, the fact that year 2004 was a leap year is inconsequential to determine the timeliness of
Uy’s motion to revive the criminal cases. What is material instead is Co’s categorical admission
that Uy is represented by a private counsel who only received a copy of the June 9, 2003 Order
on July 3, 2003. Therefore, the motion was not belatedly filed on July 2, 2004. Since the period
for filing a motion to revive is reckoned from the private counsel's receipt of the order of
provisional dismissal, it necessarily follows that the reckoning period for the permanent
dismissal is likewise the private counsel's date of receipt of the order of provisional dismissal.
And Sixth, granting for the sake of argument that this Court should take into account 2004 as a
leap year and that the one-year period to revive the case should be reckoned from the date of
receipt of the order of provisional dismissal by Uy, We still hold that the motion to revive the
criminal cases against Co was timely filed. A year is equivalent to 365 days regardless of
whether it is a regular year or a leap year.39 Equally so, under the Administrative Code of 1987,
a yearis composed of 12 calendar months. The number of days is irrelevant. This was our ruling
in Commissioner of Internal Revenue v. Primetown Property Group, Inc.,40 which was
subsequently reiterated in Commissioner of Internal Revenue v. Aichi Forging Company of Asia,
Inc.,41 thus:

x x x [In] 1987, EO 292 or the Administrative Code of 1987 was enacted. Section 31, Chapter
VIII, Book I thereof provides:

Sec. 31.Legal Periods.- "Year" shall be understood to be twelve calendar months; "month" of
thirty days, unless it refers to a specific calendar month in which case it shall be computed
according to the number of days the specific month contains; "day", to a day of twenty-four
hours and; "night" from sunrise to sunset. (emphasis supplied)

A calendar month is "a month designated in the calendar without regard to the number of days it
may contain." It is the "period of time running from the beginning of a certain numbered day up
to, but not including, the corresponding numbered day of the next month, and if there is not a
sufficient number of days in the next month, then up to and including the last day of that month."
To illustrate, one calendar month from December 31, 2007 will be from January 1, 2008 to
January 31, 2008; one calendar month from January 31, 2008 will be from February 1, 2008
until February 29, 2008.42

Applying Section 31, Chapter VIII, Book I of the Administrative Code of 1987 to this case, the
one-year period reckoned from the time Uy received the order of dismissal on July2, 2003
consisted of 24 calendar months, computed as follows:

1st calendar month July 3, 2003 to August 2, 2003

2nd calendar month August 3, 2003 to September 2, 2003

3rd calendar month September 3, 2003 to October 2, 2003

4th calendar month October 3, 2003 to November 2, 2003

5th calendar month November 3, 2003 to December 2, 2003

6th calendar month December 3, 2003 to January 2, 2004

7th calendar month January 3, 2004 to February 2, 2004

8th calendar month February 3, 2004 to March 2, 2004

9th calendar month March 3, 2004 to April 2, 2004

10th calendar month April 3, 2004 to May 2, 2004

11th calendar month May 3, 2004 to June 2, 2004

12th calendar month June 3, 2004 to July 2, 2004

In the end, We find it hard to disregard the thought that the instant petition was filed as a dilatory
tactic to prosecute Criminal Case Nos. 206655-59, 206661-77 and 209634. As correctly pointed
out by Uy since the time when the "Motion for Permanent Dismissal" was filed, the issues raised
herein were already resolved with finality by this Court in G.R. No. 171096. Verily, Co, acting
through the guidance and advice of his counsel, Atty. Oscar C. Maglaque, adopted a worthless
and vexatious legal maneuver for no purpose other than to delay the trial court proceedings. It
appears that Atty. Maglaque’s conduct contravened the Code of Professional Responsibility
which enjoins lawyers to observe the rules of procedure and not to misuse them to defeat the
ends of justice (Rule 10.03, Canon 10) as well as not to unduly delay a case or misuse court
processes (Rule 12.04, Canon 12). The Lawyer’s Oath also upholds in particular:

x x x I will not wittingly or willingly promote or sue any groundless, false or unlawful suit, nor give
aid nor consent to the same; I will delay no man for money or malice, and will conduct myself as
a lawyer according to the best of my knowledge and discretion with all good fidelity as well to
the courts as to my clients x x x.1âwphi1

This Court has repeatedly impressed upon counsels that the need for the prompt termination of
litigation is essential to an effective and efficient administration of justice. In Spouses Aguilar v.
Manila Banking Corporation,43 We said:

The Court reminds petitioners' counsel of the duty of lawyers who, as officers of the court, must
see to it that the orderly administration of justice must not be unduly impeded. It is the duty of a
counsel to advise his client, ordinarily a layman on the intricacies and vagaries of the law, on the
merit or lack of merit of his case. If he finds that his client's cause is defenseless, then it is his
bounden duty to advise the latter to acquiesce and submit, rather than traverse the
incontrovertible. A lawyer must resist the whims and caprices of his client, and temper his
client's propensity to litigate. A lawyer’s oath to uphold the cause of justice is superior to his duty
to his client; its primacy is indisputable.44

WHEREFORE, premises considered, the Petition is DENIED. The April 30, 2008 and August 1,
2008 Resolutions of the Court of Appeals, respectively, in CA-G.R. SP No. 102975, which
affirmed the January 28, 2008 Decision of the Regional Trial Court, Branch 121 of Caloocan
City, annulling and setting aside the Orders dated September 4, 2006 and November 16, 2006
of the Metropolitan Trial Court, Branch 50 of Caloocan City that permanently dismissed Criminal
Case Nos. 206655-59, 206661-77 and 209634, are hereby AFFIRMED. Costs of suit to be paid
by the petitioner.

The Commission on Bar Discipline-Integrated Bar of the Philippines is DIRECTED to investigate

Atty. Oscar C. Maglaque for his acts that appear to have violated the Lawyer's Oath, the Code
of Professional Responsibility, and the Rule on Forum Shopping.

SO ORDERED.

G.R. Nos. 211933 & 211960, April 15, 2015

ROBERTA S. SALDARIEGA, Petitioner, v. HON. ELVIRA D.C. PANGANIBAN, PRESIDING

JUDGE, BRANCH 227, REGIONAL TRIAL COURT, NATIONAL CAPITAL REGION, QUEZON
CITY AND PEOPLE OF THE PHILIPPINES, Respondent.

Before us is a special civil action for certiorari1 under Rule 65 of the Rules of Court, dated April
21, 2014 filed by Roberta S. Saldariega (petitioner), through counsel, assailing the Order dated
June 14, 2013 issued by respondent Presiding Judge Elvira D.C. Panganiban, which granted
the motion to reopen Criminal Case Nos. Q-1 1-173055 and Q-1 1-173056, for allegedly having
been issued with grave abuse of discretion amounting to lack or excess of jurisdiction.

The facts of the case, as culled from the records, are as follows:

On November 8, 2011, the Office of the City Prosecutor, Quezon City filed two (2) Informations
against petitioner Roberta S. Saldariega for violation of Sections 5 and 11, Article 2, Republic
Act No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002, docketed
as Criminal Case Nos. Q-1 1-173055 and Q-1 1-173056, respectively.2 Said cases were raffled
to Branch 227, Regional Trial Court, Quezon City, presided by herein respondent Judge Elvira
D.C. Panganiban.

Court hearings were set for the subject cases, however, the prosecution's principal witness PO2
Nelson Villas (PO2 Villas), one of the arresting officers, failed to attend said scheduled hearings,
specifically on October 22, 2012 and October 25, 2012.3 Thus, during the May 16, 2013
hearing, respondent judge issued an Order provisionally dismissing the cases with the express
consent of the accused-petitioner,4 the dispositive portion of which reads as
follows:chanroblesvirtuallawlibrary

xxxx
Today is supposedly set for the continuation of the direct testimony of PO2 Nelson Villas.
However, although notified, said witness failed to appear simply on the ground that there is a
deceased relative, the body of whom, he will accompany to the province.

The records show that on December 10, 2012, he testified partially on direct examination and
he was notified of the March 26, 2013 continuation of his testimony, but despite Notice in open
Court, he failed to appear. Likewise, the Court noticed that the other prosecution witness, PO3
Rionaldo Sabulaan never appeared despite Notice received. It appears from the records that
only the Forensic Chemist testified on September 13, 2012, but the Forensic Chemist does not
have any personal knowledge of the source of the evidence she examined, and also on the
facts and circumstances affecting the arrest of the accused. Thus, the defense counsel invoked
the right of the accused to speedy trial. The Public Prosecutor did not object to the dismissal,
provided the dismissal is only provisional. Hence, let these cases be ordered PROVISIONALLY
DISMISSED WITH THE EXPRESS CONSENT OF THE ACCUSED AND HER COUNSEL.

xxxx

SO ORDERED.5cralawlawlibrary

On June 5, 2013, PO2 Villas filed a Motion to Re-open the Case against petitioner. PO2 Villas
explained that his failure to appear during the hearings of the cases was due to the untimely
death of his father-in-law.6 He further averred that PO3 Rionaldo Sabulaan, one of the arresting
officers, is no longer assigned at the Cubao Police Station and had been transferred at the
Batasan Police Station since November 2012, thus, could not have received his subpoena
which is directed at his former place of assignment.

In the disputed Order7 dated June 14, 2013, respondent Judge granted the motion and ordered
the re-opening of the cases against petitioner and set the cases for continuation of hearing.

Petitioner moved for reconsideration. She argued that the provisional dismissal of the criminal
cases is considered an acquittal and PO2 Villas had no personality to file the motion to re-open
the case.8

In an Order9 dated February 18, 2014, respondent denied petitioner's motion for
reconsideration.

On April 29, 2014, the Court resolved to require respondents to comment on the instant
petition.10

In their Comment11 dated June 11, 2014, the Office of the Solicitor General, through then
Solicitor General Francis H. Jardeleza,12maintained that respondent judge committed no grave
abuse of discretion in issuing the assailed Orders dated June 14, 2013 and February 18, 2014.
It argued that petitioner did not expressly object to the motion to revive the criminal cases.

Thus, the instant petition raising the following issues:chanroblesvirtuallawlibrary

WHETHER OR NOT WITNESS PO2 NELSON VILLAS CAN FILE A MOTION TO REOPEN A
PROVISIONALLY DISMISSED CASE WITHOUT THE PARTICIPATION OF A PUBLIC
PROSECUTOR.cralawlawlibrary

II

WHETHER OR NOT THE BRANCH CLERK OF COURT HAS THE RIGHT TO RECEIVE A
MOTION TO RE-OPEN THAT DOES NOT CONTAIN A NOTICE OF HEARING AND A
SHOWING THAT THE OTHER PARTY WAS GIVEN A COPY THEREOF.cralawlawlibrary

III

WHETHER OR NOT THE RESPONDENT JUDGE HAS THE AUTHORITY TO ACT

FAVORABLY UPON SAID MOTION.cralawlawlibrary

IV

WHETHER OR NOT THE PROVISIONAL DISMISSAL OF CRIMINAL CASES NOS. Q-1

1-173055-56 WITH THE CONSENT OF THE ACCUSED BUT PREDICATED ON FAILURE TO
PROSECUTE WHICH VIOLATES THE RIGHT OF THE ACCUSED TO SPEEDY TRIAL IS NOT
EQUIVALENT TO AN ACQUITTAL, SUCH THAT ITS REVIVAL WOULD CONSTITUTE
DOUBLE JEOPARDY.cralawlawlibrary

WHETHER OR NOT THE ABSENCE OF PROSECUTION'S PRINCIPAL WITNESS PO2

NELSON VILLAS FOR FOUR (4) CONSECUTIVE HEARINGS HAD BEEN CONSIDERED
WAIVER PURSUANT TO A.M. NO. 11-6-10-SC.

RULING

We deny the petition.

The Court notes that the instant case suffers from procedural infirmities which this Court cannot
ignore. While this petition is to be treated as one for certiorari under Rule 65, it is still dismissible
for violation of the hierarchy of courts. Although the Supreme Court has concurrent jurisdiction
with the RTC and the CA to issue writs of certiorari, this should not be taken as granting parties
the absolute and unrestrained freedom of choice of the court to which an application will be
directed. Direct resort to this Court is allowed only if there are special, important and compelling
reasons clearly and specifically spelled out in the petition, which are not present in this case.13

Moreover, this being a petition on certiorariunder Rule 65, the issues raised herein should be
confined solely to questions of jurisdiction. Thus, while in the course of the discussion, it may be
necessary to thresh out pertinent factual issues, the same is limited for the purpose of resolving
the issue on jurisdiction, that is, whether the trial court committed grave abuse of discretion
resulting to lack or in excess of jurisdiction.

When a criminal case is provisionally dismissed with the express consent of the accused, the
case may be revived by the State within the periods provided under the 2nd paragraph of
Section 8, Rule 117 of the Rules of Criminal Procedure.

A case shall not be provisionally dismissed except with the express consent of the accused and
with notice to the offended party. Here, a perusal of the Order, dated May 16, 2013, stresses in
no uncertain terms that the dismissal of the case was provisional, i.e., the case could be revived
at some future time. If petitioner believed that the case against her should be dismissed with
prejudice, she should not have agreed to a provisional dismissal. She should have moved for a
dismissal with prejudice so that the court would have no alternative but to require the
prosecution to present its evidence. There was nothing in the records showing the accused's
opposition to the provisional dismissal nor was there any after the Order of provisional dismissal
was issued. She cannot claim now that the dismissal was with prejudice. Thus, if a criminal case
is provisionally dismissed with the express consent of the accused, as in this case, the case
may be revived by the State within the periods provided under the 2nd paragraph of Section 8,
Rule 117 of the Rules of Criminal Procedure. There is no violation of due process as long as the
revival of a provisionally dismissed complaint was made within the time-bar provided under the
law.

Generally, the prosecutor should have been the one who filed the motion to revive because it is
the prosecutor who controls the trial. But in this particular case, the defect, if there was any, was
cured when the public prosecutor later actively participated in the denial of the accused's motion
for reconsideration when she filed her Comment/Objection thereto. In the Order denying the
motion, the trial court stated that "in her Comment/Objection, the Public Prosecutor begged to
disagree primarily on the ground that double jeopardy has not set in, because the provisional
dismissal of the case was with the express consent of the accused."14 The court even went
further when it stated that "although the Motion to Re-open the case was filed by the witness
without securing the conformity of the Public Prosecutor, in effect, the prosecutor has
conformed to the re-opening of the case because she (the prosecutor) finds that the failure of
the witness to appear on two (2) hearings was due to the death of the father in law on March 23,
2013 and the death of his aunt on May 12, 2013, as substantiated by the respective Certificates
of Death of the said relatives."15

Moreover, in the case at bar, it must be noted that the accused is charged with a public crime,
hence, it is a victim-less crime. Unlike in private crimes where the participation of the private
offended party is generally required for the recovery of civil liability, in the instant case, there is
no particular private offended party who can actually file the motion to revive. Hence, in some
instances, as in this case, it is the arresting officer, PO2 Villas, who filed the motion to revive the
case out of his sense of duty as a police officer and compelled by his sense of obligation
considering that he knew his absence was the cause why the complaint was provisionally
dismissed.

We could not entirely blame PO2 Villas in filing the motion to revive since we are aware that in
drug-related cases, the arresting officers are usually required to explain by their superiors when
a case is provisionally dismissed due to their failure to appear during trial. Thus, in order to
exonerate themselves from a possible administrative and criminal liability, the arresting officers
would then opt instead to file the motion to revive on their own.

The provisional dismissal of the case does not operate as an acquittal since its dismissal was
made with the express consent of the accused, thus, there is no double jeopardy.

Further, the proscription against double jeopardy presupposes that an accused has been
previously charged with an offense, and the case against him is terminated either by his
acquittal or conviction, or dismissed in any other manner without his consent. As a general rule,
the following requisites must be present for double jeopardy to attach: (1) a valid indictment, (2)
before a court of competent jurisdiction, (3) the arraignment of the accused, (4) a valid plea
entered by him, and (5) the acquittal or conviction of the accused, or the dismissal or
termination of the case against him without his express consent. However, there are two (2)
exceptions to the foregoing rule, and double jeopardy may attach even if the dismissal of the
case was with the consent of the accused: first, when there is insufficiency of evidence to
support the charge against him; and second, where there has been an unreasonable delay in
the proceedings, in violation of the accused's right to speedy trial.16

In the instant case, while the first four requisites are present, the last requisite is lacking,
considering that here the dismissal was merely provisional and it was done with the express
consent of the accused-petitioner. Petitioner is not in danger of being twice put in jeopardy with
the reopening of the case against her as it is clear that the case was only provisionally
dismissed by the trial court. The requirement that the dismissal of the case must be without the
consent of the accused is not present in this case. Neither does the case fall under any of the
aforementioned exceptions because, in fact, the prosecution had failed to continue the
presentation of evidence due to the absence of the witnesses, thus, the fact of insufficiency of
evidence cannot be established. Likewise, we find no unreasonable delay in the proceedings
that would be tantamount to violation of the accused's right to speedy trial.

This Court has emphasized that "'speedy trial' is a relative term and necessarily a flexible
concept." In determining whether the accused's right to speedy trial was violated, the delay
should be considered in view of the entirety of the proceedings. The factors to balance are the
following: (a) duration of the delay; (b) reason therefor; (c) assertion of the right or failure to
assert it; and (d) prejudice caused by such delay. In the instant case, petitioner failed to show
any evidence that the alleged delay in the trial was attended with malice or that the same was
made without good cause or justifiable motive on the part of the prosecution. Mere
mathematical reckoning of the time involved would not suffice as the realities of everyday life
must be regarded in judicial proceedings.17

Here, the delay in the proceedings, which ran from October 25, 2012 until the provisional
dismissal of the case on May 13, 2013, is not the kind of delay contemplated under the law as to
violate the accused's right to speedy trial. More so, when the cause of the delay is valid, as in
the instant case. Likewise, a perusal of the Order dated May 16, 2013 would show that the order
was categorical in stating that the dismissal of the complaint was provisional with the express
consent of the accused and her counsel. The court merely stated in the Order as to what
transpired during the proceedings of the case and not that the dismissal was based on the
accused's right to speedy trial.

While the Court recognizes the accused's right to speedy trial and adheres to a policy of speedy
administration of justice, we cannot, however, deprive the State of a reasonable opportunity to
fairly prosecute criminals. We reiterate that unjustified postponements which prolong the trial for
an unreasonable length of time are what offend the right of the accused to speedy trial.18

In a petition for certiorari under Rule 65, petitioner should establish that the court or tribunal
acted in a capricious, whimsical, arbitrary or despotic manner in the exercise of its jurisdiction as
to be equivalent to lack of jurisdiction.

In view of the foregoing, we, thus, find no basis for issuing the extraordinary writs of certiorari
with injunction, as there was no showing that the alleged error in judgment was tainted with
grave abuse of discretion. Nowhere in the petition did petitioner show that the issuance of the
assailed orders was patent and gross that would warrant striking it down through a petition for
certiorari. No argument was shown that the trial court exercised its judgment capriciously,
whimsically, arbitrarily or despotically by reason of passion and hostility.

It is well settled that a petition for certiorariagainst a court which has jurisdiction over a case will
prosper only if grave abuse of discretion is manifested. The burden is on the part of the
petitioner to prove not merely reversible error, but grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of the public respondent issuing the impugned order. Mere
abuse of discretion is not enough; it must be grave. The term grave abuse of discretion is
defined as a capricious and whimsical exercise of judgment as patent and gross as to amount to
an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, as where the
power is exercised in an arbitrary and despotic manner because of passion or
hostility.19Certiorari will issue only to correct errors of jurisdiction, and not errors or mistakes in
the findings and conclusions of the trial court.cralawred

WHEREFORE, the petition is DENIED for lack of merit. The Orders dated June 14, 2013 and
February 18, 2014 in Criminal Cases Nos. Q-1 1-173055 and Q-1 1-173056 entitled People of
the Philippines v. Roberta Saldariega are AFFIRMED. Let the case be remanded to the lower
court for further proceedings with dispatch.

SO ORDERED.

SALVADOR ESTIPONA, JR. y ASUELA, Petitioner,

vs.

HON. FRANK E. LOBRIGO, and PEOPLE OF THE PHILIPPINES, Respondents.

G.R. No. 226679 August 15, 2017

TOPIC: Section 23 of RA 9165, rule-making power of Supreme Court, equal protection clause

PONENTE: Peralta

FACTS:

Petitioner Estipona, Jr. was charged with violation of Section 11 of RA 9165.

On June 15, 2016, Estipona filed a Motion to Allow the Accused to Enter into a Plea Bargaining
Agreement, praying to withdraw his not guilty plea and, instead, to enter a plea of guilty for
violation of Section 12 (NOTE: should have been Section 15?) of the same law, with a penalty
of rehabilitation in view of his being a first-time offender and the minimal quantity of the
dangerous drug seized in his possession.
Petitioner argues that Section 23 of RA 9165 which prohibits plea bargaining in all violations of
said law violates:

The intent of the law expressed in paragraph 3, Section 2 thereof;The rule-making authority of
the Supreme Court under Section 5(5), Article VIII of the 1987 Constitution; andThe principle of
separation of powers among the three equal branches of the government.

ISSUES:

Whether or not Section 23 of RA 9165 is unconstitutional as it encroached upon the power of

the Supreme Court to promulgate rules of procedure.Whether or not Section 23 of RA 9165 is
unconstitutional for being violative of the Constitutional right to equal protection of the law.

HELD:

FIRST ISSUE: YES

The Supreme Court held that the power to promulgate rules of pleading, practice and procedure
is now Their exclusive domain and no longer shared with the Executive and Legislative
departments.

The Court further held that the separation of powers among the three co-equal branches of our
government has erected an impregnable wall that keeps the power to promulgate rules of
pleading, practice and procedure within the sole province of this Court. The other branches
trespass upon this prerogative if they enact laws or issue orders that effectively repeal, alter or
modify any of the procedural rules promulgated by the Court.

Viewed from this perspective, the Court had rejected previous attempts on the part of the
Congress, in the exercise of its legislative power, to amend the Rules of Court (Rules), to wit:

Fabian v. Desierto -Appeal from the decision of the Office of the Ombudsman in an
administrative disciplinary case should be taken to the Court of Appeals under the provisions of
Rule 43 of the Rules instead of appeal by certiorari under Rule 45 as provided in Section 27 of
R.A. No. 6770.Cathay Metal Corporation v. Laguna West Multi-Purpose Cooperative, Inc. – The
Cooperative Code provisions on notices cannot replace the rules on summons under Rule 14 of
the Rules.RE: Petition for Recognition of the Exemption of the GSIS from Payment of Legal
Fees; Baguio Market Vendors MultiPurpose Cooperative (BAMARVEMPCO) v. Hon. Judge
Cabato-Cortes; In Re: Exemption of the National Power Corporation from Payment of
Filing/Docket Fees; and Rep. of the Phils. v. Hon. Mangotara, et al. – Despite statutory
provisions, the GSIS, BAMARVEMPCO, and NPC are not exempt from the payment of legal
fees imposed by Rule 141 of the Rules.Carpio-Morales v. Court of Appeals (Sixth Division) –
The first paragraph of Section 14 of R.A. No. 6770, which prohibits courts except the Supreme
Court from issuing temporary restraining order and/or writ of preliminary injunction to enjoin an
investigation conducted by the Ombudsman, is unconstitutional as it contravenes Rule 58 of the
Rules.

Considering that the aforesaid laws effectively modified the Rules, this Court asserted its
discretion to amend, repeal or even establish new rules of procedure, to the exclusion of the
legislative and executive branches of government. To reiterate, the Court’s authority to
promulgate rules on pleading, practice, and procedure is exclusive and one of the safeguards of
Our institutional independence.

SECOND ISSUE: UNRESOLVED

The Supreme Court did not resolve the issue of whether Section 23 of R.A. No. 9165 is contrary
to the constitutional right to equal protection of the law in order not to preempt any future
discussion by the Court on the policy considerations behind Section 23 of R.A. No. 9165.

Pending deliberation on whether or not to adopt the statutory provision in toto or a qualified
version thereof, the Court deemed it proper to declare as invalid the prohibition against plea
bargaining on drug cases until and unless it is made part of the rules of procedure through an
administrative circular duly issued for the purpose.

ADDITIONAL DISCUSSIONS ABOUT PLEA BARGAINING:

Plea bargaining is a rule of procedure

Fabian v. Hon. Desierto laid down the test for determining whether a rule is substantive or
procedural in nature.

In determining whether a rule prescribed by the Supreme Court, for the practice and procedure
of the lower courts, abridges, enlarges, or modifies any substantive right, the test is whether the
rule really regulates procedure, that is, the judicial process for enforcing rights and duties
recognized by substantive law and for justly administering remedy and redress for a disregard
or infraction of them. If the rule takes away a vested right, it is not procedural. If the rule creates
a right such as the right to appeal, it may be classifiedas a substantive matter; but if it operates
as a means of implementing an existing right then the rule deals merely with procedure.

In several occasions, We dismissed the argument that a procedural rule violates substantive
rights. By the same token, it is towards the provision of a simplified and inexpensive procedure
for the speedy disposition of cases in all courts that the rules on plea bargaining was introduced.
As a way of disposing criminal charges by agreement of the parties, plea bargaining is
considered to be an “important,” “essential,” “highly desirable,” and “legitimate” component of
the administration of justice.
In this jurisdiction, plea bargaining has been defined as “a process whereby the accused and
the prosecution work out a mutually satisfactory disposition of the case subject to court
approval.” There is give-and-take negotiation common in plea bargaining. The essence of the
agreement is that both the prosecution and the defense make concessions to avoidpotential
losses. Properly administered, plea bargaining is to be encouragedbecause the chief virtues of
the system – speed, economy, and finality – can benefit the accused, the offended party, the
prosecution, and the court.

Considering the presence of mutuality of advantage, the rules on plea bargaining neither create
a right nor take away a vested right. Instead, it operates as a means to implement an existing
right by regulating the judicial process for enforcing rights and duties recognized by substantive
law and for justly administering remedy and redress for a disregard or infraction of them.

No constitutional right to plea bargain

Yet a defendant has no constitutional right to plea bargain. No basic rights are infringed by
trying him rather than accepting a plea of guilty; the prosecutor need not do so if he prefers to
go to trial. Under the present Rules, the acceptance of an offer to plead guilty is not a
demandable right but depends on the consent of the offended party and the prosecutor, which is
a condition precedent to a valid plea of guilty to a lesser offense that is necessarily included in
the offense charged. The reason for this is that the prosecutor has full control of the
prosecution of criminal actions; his duty is to always prosecute the proper offense, not any
lesser or graver one, based on what the evidence on hand can sustain.

Plea bargaining, when allowed

Plea bargaining is allowed during the arraignment, the pre-trial, or even up to the point when the
prosecution already rested its case.

As regards plea bargaining during the pre-trial stage, the trial court’s exercise of discretion
should not amount to a grave abuse thereof.

If the accused moved to plead guilty to a lesser offense subsequent to a bail hearing or after the
prosecution rested its case, the rules allow such a plea only when the prosecution does not
have sufficient evidence to establish the guilt of the crime charged. The only basis on which the
prosecutor and the court could rightfully act in allowing change in the former plea of not guilty
could be nothing more and nothing less than the evidence on record. The ruling on the motion
must disclose the strength or weakness of the prosecution’s evidence. Absent any finding on
the weight of the evidence on hand, the judge’s acceptance of the defendant’s change of plea is
improper and irregular.

JOCELYN ASISTIO Y CONSINO, Petitioner, v.PEOPLE OF THE PHILIPPINES AND MONICA

NEALIGA, Respondent.
DECISION

PERALTA, J.

Assailed in this petition for certiorari under Rule 65 of the Rules of Court are the Court of
Appeals (CA) Decision1 dated August 31, 2011 and its Resolution2 dated January 31, 2012 in
CA-G.R. CR No. 32363. The dispositive portion of the Decision
reads:chanroblesvirtuallawlibrary

WHEREFORE, premises considered, the assailed Orders dated 14 October 2008 and 12
February 2009 of Branch 40, Regional Trial Court of Manila, in Criminal Case No. 01-197750,
are hereby REVERSED and SET ASIDE. Accordingly, let the records of this case be
REMANDED to Branch 40 of the Regional Trial Court of Manila, for further appropriate
proceedings.

SO ORDERED.3cralawlawlibrary

The factual and procedural antecedents are as follows:

Petitioner Jocelyn Asistio y Consino was charged with violation of Section 46 of the Cooperative
Code of the Philippines (Republic Act No. [RA] 6938).4 The accusatory portion of the
Information filed against her reads:chanroblesvirtuallawlibrary

That on or about July 27, 1998, in the City of Manila, Philippines, the said accused, being then
the Chairperson and Managing Director of A. Mabini Elementary School Teachers
Multi-Purpose Cooperative, and as such, have a complete control and exclusively manage the
entire business of A. Mabini Elementary School Teachers Multi-Purpose Cooperative, did then
and there willfully, unlawfully and feloniously acquires, in violation of her duty as such and the
confidence reposed on her, personal interest or equity adverse to A. Mabini Elementary School
Teachers Multi-Purpose Cooperative by then and there entering into a contract with Coca Cola
Products at A. Mabini Elementary School Teachers Multi-Purpose Cooperative in her own
personal capacity when in truth and in fact as the said accused fully well knew, the sale of
Coca-Cola products at A. Mabini Elementary School Teachers Multi-Purpose Cooperative
should have accrued to A. Mabini Elementary School Teachers Multi-Purpose Cooperative to
the damage and prejudice of A. Mabini Elementary School Teachers Multi-Purpose
Cooperative.

CONTRARY TO LAW.5cralawlawlibrary

Upon her arraignment, petitioner entered a plea of "not guilty." Trial on the merits ensued.
The prosecution sought to prove that petitioner, then Chairperson of the A. Mabini Elementary
School Teachers Multi-Purpose Cooperative, had entered into an exclusive dealership
agreement with Coca-Cola Bottlers Philippines, Inc., (Coca Cola) for the sale of softdrink
products at the same school. By virtue of a Memorandum of Agreement between the school and
the Cooperative, Dr. Nora T. Salamanca, the school principal, directed petitioner to submit her
financial reports during her tenure as Chairperson. Instead, petitioner claimed that the principal
had no business and authority to require her to produce financial statements, and that the said
reports had been posted on the school bulletin board.

The school principal then created an audit committee to look into the financial reports of the
Cooperative. The committee was composed of Aurora Catabona (Chairperson), Monica Nealiga
(member), with Noemi Olazo (Chairperson-auditor) and Sylvia Apostol (auditor), who later
executed their respective affidavits in support of the charge against petitioner. Based on the
documents obtained from Coca-Cola, including the records of actual deliveries and sales, and
the financial statements prepared by petitioner, the audit committee found that petitioner
defrauded the Cooperative and its members for three (3) years in the following amounts: School
Year (S.Y.) 1998-1999 - P54,008.00; S.Y. 1999-2000 - P40,503.00; and S.Y. 2000-2001 -
P8,945.00. Despite requests for her to return to the Cooperative the amounts she had allegedly
misappropriated, petitioner failed and refused to do so. Thus, the Cooperative issued a Board
Resolution authorizing the filing of criminal charges against petitioner.

After the presentation and offer of evidence by the prosecution, petitioner moved to dismiss the
case by way of Demurrer to Evidence with prior leave of court. She argued, among other
matters, that the Regional Trial Court (RTC) of Manila, Branch 40, does not have jurisdiction
over the case, as the crime charged (Violation of Section 46 of RA 6938) does not carry with it a
sanction for which she can be held criminally liable.

On October 14, 2008, the RTC dismissed the case for lack of jurisdiction,
thus:chanroblesvirtuallawlibrary

Considering that the MeTCs, MTC, MCTCs have exclusive original jurisdiction over all offenses
punishable with imprisonment not exceeding six (6) years irrespective of the amount of fine, and
regardless of other imposable accessory or other penalties, including the civil liability arising
from such offense or predicated thereon, and considering that violation of [Sec] 46 of R.A. 6938
would be punishable by imprisonment of not less than six (6) months nor more than one (1) year
and a fine of not less than one thousand pesos (P1,000.00), or both at the discretion of the
Court, this Court (RTC) has no jurisdiction to hear and determine the instant case which
properly pertains to the first level courts.cralawred

WHEREFORE, premises considered, this Court finds and holds that it has no jurisdiction over
the offense charged. Accordingly, the instant case is hereby DISMISSED. This Court having no
jurisdiction, further discussions over the defense' allegation that there was a violation of the
principle of primary jurisdiction and that the private complainants used a falsified resolution to
purposely empower them to file the instant case become moot and academic.

IT IS SO ORDERED.6cralawlawlibrary

On February 12, 2009, the RTC denied for lack of merit the private prosecutor's motion for a
reconsideration of the order of dismissal.7The RTC held:chanroblesvirtuallawlibrary

Nowhere in said [Sec] 46 of R.A. 6938 does it provide for penal sanctions/liability for violation of
acts or omission prescribed therein. If ever, the liability is only for damages and for double the
profits which otherwise would have accrued to the cooperative. It is a fundamental rule in law
that an act or omission is not a crime unless there is a law making it so and providing a penalty
therefor. Otherwise put, the facts charged in the information do not charge an offense. And even
assuming arguendo that they do constitute an offense, the penalty therefor is that provided
under paragraph 4 of [Section] 124 of R.A. [6938] which is "imprisonment of not less than six (6)
months nor more than one (1) year and a fine of not less than one thousand pesos (P1,000.00),
or both at the discretion of the court," which falls under the exclusive jurisdiction of the first, not
the second level court.

Another factor which strongly militates against the cause of the prosecution is the undisputed
fact that before this case was filed in Court, conciliation/mediation process for the amicable
settlement of the dispute was not availed of by the private complainants who are all members
(directors) of the A. Mabini Elementary School Teachers Multi-Purpose Cooperative in
accordance with the by-laws of the Cooperative and the Cooperative Code itself and the
Guidelines for the Implementation of Conciliation/Mediation of Cooperative dispute (Memo
Circular No. 2007-05, Series of 2007). The dispute involving the parties is certainly a dispute
and issue between and among directors, officers or members of the A. Mabini Elementary
School Teachers Multi-Purpose Cooperative which is governed by the Guidelines.

Prior availment and exhaustion of administrative remedies until the Office of the President as
outlined in the Cooperative Code and in its implementing rules not having been resorted to by
the complainants, the rule on primary jurisdiction was violated and this Court acquired no
jurisdiction to hear and determine the present case.8cralawlawlibrary

Dissatisfied, the People of the Philippines, represented by the Office of the Solicitor General
(OSG), appealed the order of dismissal to the CA.

On August 31, 2011, the CA rendered a Decision reversing and setting aside the RTC Orders
dated October 14, 2008 and February 12, 2009 and remanded the case records to the RTC for
further proceedings. On January 31, 2012, the CA denied petitioner's motion for reconsideration
of its decision.9
Aggrieved, petitioner filed this petition for certiorari under Rule 65 of the Rules of Court, raising
the following issues:chanroblesvirtuallawlibrary

1. WHETHER IN REVERSING THE REGIONAL TRIAL COURT'S DECISION OF DISMISSAL,

HAS THE HON. COURT OF APPEALS GRAVELY ERRED IN DISREGARDING THE CLEAN,
UNAMBIGUOUS AND CATEGORICAL PROVISION OF PARAGRAPH 4 OF [SECTION] 124
OF RA-6938 IN REFERENCE TO THE PENAL SANCTION FOR VIOLATION OF [SEC] 46 OF
THE COOPERATIVE [CODE], RA-6938 AND ADOPTING FOR ITS DECISION ONE DERIVED
FROM ITS INTERPRETATION OF A SUPPOSED STATUTORY CONSTRUCTION WHICH
INTERPRETATION, EVEN SUBJECT PETITIONER TO A HIGHER PENALTY OF 5 YEARS TO
10 YRS. WHICH WAS TO JUSTIFY THAT TFIE RTC SHOULD NOT HAVE DISMISSED THE
CASE AND USED IT AS A GROUND TO REVERSE THE DECISION OF THE HON.
REGIONAL TRIAL COURT.

2. WHETHER THE HON. COURT OF APPEALS IGNORED THE OTHER GROUNDS

ASSIGNED FOR THE DISMISSAL OF THE CRIMINAL CHARGE OTHER THAN THE
VIOLATION OF [SECTION] 46 OF RA-6938, (COOPERATIVE CODE). THAT THERE WAS A
VIOLATION OF THE RULE ON PRIMARY JURISDICTION - EXHAUSTION OF
ADMINISTRATIVE REMEDIES IN THE COOPERATIVE LEVEL BEFORE GOING TO COURT.

3. WHETHER THE HON. COURT OF APPEALS' ORDER REMANDING THE CASE BACK TO
THE REGIONAL TRIAL COURT FOR FURTHER PROCEEDINGS IGNORED THE RULE THAT
DISMISSAL OF THE CHARGE ON DEMURRER TO EVIDENCE AMOUNTS TO AN
ACQUITTAL, AND THE DISMISSAL IS NOT APPEALABLE.

4. WHETHER REMANDING THE CASE BACK TO THE REGIONAL TRIAL COURT FOR
FURTHER PROCEEDINGS SUBJECT THE PETITIONER-ACCUSED TO DOUBLE
JEOPARDY AND TO HIGHER PENALTY HAS NOT BEEN CONSIDERED.

5. [WHETHER THE RESPONDENT'S CONTENTION THAT A NEW AND AMENDED

COOPERATIVE CODE RA-9520 COULD POSSIBLE APPLY TO THIS CASE AGAINST THE
PETITIONER, VIOLATIVE OF EXPOSE (SIC) FACTO LAW.]10cralawlawlibrary

The petition has no merit.

Prefatorily, the Court notes that petitioner filed a special civil action for certiorari under Rule 65
of the Rules of Court, as amended, instead of an appeal by certiorari under Rule 45, which the
OSG points out as the proper remedy to assail the CA decision.

Petitioner asserts that she filed the petition pursuant to Rule 65, because the assailed CA
decision is tainted with grave abuse of discretion. She posits that the Court ordered the
exclusion of the CA as one of the party respondents, and considered the petition as one filed
under Rule 45, since the focal issue raised in the petition is a question of law calling for an
interpretation of Sections 46 and 124 of RA 6938, in relation to Batas Pambansa (B.P.) Blg.
129, or the Judiciary Reorganization Act of 1980, as amended by RA 7691. She adds that had
she chosen to file an appeal by certiorari, the Court would be faced with the same question of
law.

Petitioner's contentions are untenable.

As a rule, the remedy from a judgment or final order of the CA is appeal via petition for review
under Rule 45 of the Rules of Court.11In Mercado v. Court of Appeals,12 the Court had again
stressed the distinction between the remedies provided for under Rule 45 and Rule 65, to
wit:chanroblesvirtuallawlibrary

xxx [T]he proper remedy of a party aggrieved by a decision of the Court of Appeals is a petition
for review under Rule 45, which is not identical to a petition for certiorari under Rule 65. Under
Rule 45, decisions, final orders or resolutions of the Court of Appeals in any case, i.e.,
regardless of the nature of the action or proceedings involved, may be appealed to us by filing a
petition for review, which would be but a continuation of the appellate process over the original
case. On the other hand, a special civil action under Rule 65 is an independent action based on
the specific ground therein provided and, as a general rule, cannot be availed of as a substitute
for the lost remedy of an ordinary appeal, including that to be taken under Rule 45.
xxx.13cralawlawlibrary

In Artistica Ceramica, Inc., v. Ciudad Del Carmen Homeowner's Association, Inc.,14 the Court
explained that one of the requisites of certiorari is that there be no available appeal or any plain,
speedy and adequate remedy. Where an appeal is available, certiorari will not prosper, even if
the ground therefor is grave abuse of discretion. It is also well settled that a party cannot file a
petition both under Rules 45 and 65 of the Rules of Court because said procedural rules pertain
to different remedies and have distinct applications. The remedy of appeal under Rule 45 and
the original action for certiorariunder Rule 65 are mutually exclusive and not alternative or
cumulative. Thus, when petitioner adopts an improper remedy, petition may be dismissed
outright.

However, the Court may set aside technicality for justifiable reasons as when the petition before
it is clearly meritorious and filed on time both under Rules 45 and 65.15 In accordance with the
liberal spirit which pervades the Rules of Court and in the interest of justice, the Court may treat
the petition as having been filed under Rule 45. Here, no justifiable reasons were proffered by
petitioner for a more liberal interpretation of procedural rules. Although it was filed on time both
under Rules 45 and 65, the petition at bench lacks substantive merit and raises only questions
of law which should have been duly made in a petition for review on certiorari under Rule 45.16

On the substantive issue of which court has jurisdiction over petitioner's criminal case for
violation of Section 46 (Liability of Directors, Officers and Committee Members) of RA 6938, the
Court affirms the CA ruling that it is the RTC, not the Metropolitan Trial Court (MeTC), which has
jurisdiction over her case.

In criminal cases, the jurisdiction of the court is determined by the averments of the complaint or
Information, in relation to the law prevailing at the time of the filing of the complaint or
Information, and the penalty provided by law for the crime charged at the time of its
commission.17 Section 32 of B.P. Blg. 129, as amended, provides that the MeTC has exclusive
jurisdiction over offenses punishable with imprisonment not exceeding six years, irrespective of
the amount of fine:chanroblesvirtuallawlibrary

Sec. 32. Jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit
Trial Courts in Criminal Cases. - Except in cases falling within the exclusive original jurisdiction
of Regional Trial Courts and of the Sandiganbayan, the Metropolitan Trial Courts, Municipal
Trial Courts, and Municipal Circuit Trial Courts shall exercise:chanroblesvirtuallawlibrary

xxxx

(2) Exclusive original jurisdiction over all offenses punishable with imprisonment not exceeding
six (6) years irrespective of the amount of fine, and regardless of other imposable accessory or
other penalties, including the civil liability arising from such offenses or predicated thereon,
irrespective of kind, nature, value or amount thereof: Provided, however, That in offenses
involving damage to property through criminal negligence, they shall have exclusive original
jurisdiction thereof. (Emphasis added)

Offenses punishable with imprisonment exceeding six years, irrespective of the amount of fine,
fall under the exclusive original jurisdiction of the RTC, in accordance with Section 20 of B.P.
Blg. 129, as amended:chanroblesvirtuallawlibrary

Section 20. Jurisdiction in criminal cases. — Regional Trial Courts shall exercise exclusive
original jurisdiction in all criminal cases not within the exclusive jurisdiction of any court, tribunal
or body, except those now falling under the exclusive and concurrent jurisdiction of the
Sandiganbayan which shall hereafter be exclusively taken cognizance of by the latter.

Petitioner insists that Section 46 (Liability of Directors, Officers and Committee Members) of RA
6938 provides only for a civil liability but not a criminal sanction, hence, the MeTC has
jurisdiction over her criminal case which is punishable under paragraph 4 of Section
124:chanroblesvirtuallawlibrary

Section 124. Penal Provisions. - The following acts or omissions affecting cooperatives are
hereby prohibited:chanroblesvirtuallawlibrary
(4) Any violation of any provision of this Code for which no penalty is imposedshall be punished
by imprisonment of not less than six (6) months nor more than one (1) yearand a fine of not less
than One thousand pesos (P1,000.00), or both at the discretion of the court. (Emphasis added)

Petitioner argues that the provisions of Section 46 (Liability of Directors, Officers and Committee
Members), Section 47 (Compensation) and Section 124 (Penal Provisions) of RA 6938, are
plain, unambiguous, and categorical. She submits that statutory construction of such clear
provisions, especially if prejudicial to her rights as an accused and would subject her to higher
penalty, should not be allowed.

On the other hand, the OSG maintains that the RTC has jurisdiction over petitioner's case
pursuant to paragraph 3 of Section 124 of RA 6938:chanroblesvirtuallawlibrary

(3) A director, officer or committee member who violated the provisions of Section 47 (liability of
directors, officers and committee members), Section 50 (disloyalty of a director) and Section 51
(illegal use of confidential information) shall upon conviction suffer a fine of not less than Five
thousand pesos (P5,000.00), or imprisonment of not less than five (5) years but not more than
ten (10) years or both at the court's discretion; (Emphasis supplied)

The OSG points out that Section "47" in the above-quoted provision is a clerical error because
the "liability of directors, officers and committee members" is undisputedly governed by Section
46 of RA 6938, while Section 47 thereof deals with the compensation of directors, officers and
employees, to wit:chanroblesvirtuallawlibrary

Section 46. Liability of Directors, Officers and Committee Members - Directors, officers and
committee members, who willfully and knowingly vote for or assent to patently unlawful acts or
who are guilty of gross negligence or bad faith in directing the affairs of the cooperative or
acquire any personal or pecuniary interest in conflict with their duty as such directors, officers or
committee member shall be liable jointly and severally for all damages or profits resulting
therefrom to the cooperative, members and other persons.

When a director, officer or committee member attempts to acquire or acquires, in violation of his
duty, any interest or equity adverse to the cooperative in respect to any matter which has been
reposed in him in confidence, he shall, as a trustee for the cooperative, be liable for damages
and for double the profits which otherwise would have accrued to the cooperative.

Section 47. Compensation - (1) In the absence of any provision in the by-laws fixing their
compensation, the directors shall not receive any compensation except for reasonable per diem:
Provided, That any compensation other than per diems may be granted to directors by a
majority vote of the members with voting rights at a regular or special general assembly meeting
specifically called for the purpose: Provided further, that no additional compensation other than
per diems shall be paid during the first year of existence of any cooperative.
The Court sustains the OSG's contention. Petitioner failed to present any compelling reason to
warrant a departure from the exhaustive CA ruling on why the RTC, not the MeTC, has
jurisdiction over her criminal case for violation of Section 46 of RA 6938,
thus:chanroblesvirtuallawlibrary

The Court, in order to carry out the obvious intent of the legislature, may correct clerical errors,
mistakes or misprints which, if uncorrected, would render the statute meaningless, empty or
nonsensical or would defeat or impair its intended operation, so long as the meaning intended is
apparent on the face of the whole enactment and no specific provision is abrogated. To correct
the error or mistake is to prevent the nullification of the statute and give it a meaning and
purpose. For it is the duty of the court to give a statute a sensible construction, one that will
effectuate legislative intent and avoid injustice or absurdity. It is its duty to arrive at the
legislative intent and in doing so, it should not adopt an arbitrary rule under which it must be
held without variance or shadow of turning the legislature intended to make a typographical
error, the result of which would be to make nonsense of the act, and not to carry out the
legislative scheme, but to destroy it.

xxxx

Clearly, the accused-appellee cannot insist that reference to [Sec] 124, paragraph 4, as the trial
court did, is necessary and therefore, warranted the dismissal of the criminal case for lack of
jurisdiction. To reiterate, [Sec] 46 of the Code, entitled "Liability of Directors, Officers, and
Committee Members," provides for violations under which the said officers could be held liable
for, and the corresponding liability for damages and profits from the said violations. Since the
said [section] does not provide for penal sanction, an application of [Sec] 124, paragraph 3
should follow as the said provision evidently refers to the penal sanction on erring directors,
officers and committee members. It would make no sense if we were to follow what clearly
appears to be a clerical error, that is, applying [Sec] 124, paragraph 4 instead, just because
paragraph 3 of the same [section] refers to [Sec] 47, which upon examination of the Code
provides for the "Compensation" of the directors, officers and other employees of the
cooperative.

We, thus, agree with the contention of the People that [Section] 124 (3) should refer to
"[Section] 46 (Liability of Directors, Officers and Committee Members, [Section] 49 (Disloyalty of
a Director) and [Section] 51 (Illegal use of confidential information)." Following this
interpretation, violation of [Sec] 46, therefore, is punishable by a fine of not less than Five
thousand pesos (P5,000.00), or imprisonment of not less than five (5) years but not more than
ten (10) years or both at the court's discretion, which under B.P. Blg. 129, shall be within the
jurisdiction of the RTC.18cralawlawlibrary

It may not be amiss to point out that the clerical error noted by the OSG in Section 124 (3) of RA
6938 on the liability of directors, officers and committee members, has been recognized and
duly corrected when the legislature enacted RA 9520, entitled "An Act Amending the
Cooperative Code of the Philippines to be known as the Philippine Cooperative Code of 2008."
Pertinent portions of the corrected provision read:chanroblesvirtuallawlibrary

ART. 45. Liability of Directors, Officers and Committee Members. - Directors, officers and
committee members, who are willfully and knowingly vote for or assent to patently unlawful acts
or who are guilty of gross negligence or bad faith in directing the affairs of the cooperative or
acquire any personal or pecuniary interest in conflict with their duty as such directors, officers or
committee members shall be liable jointly and severally for all damages or profits resulting
therefrom to the cooperative, members, and other persons.

xxxx

ART. 140. Penal Provisions. - The following acts or omissions affecting cooperatives are hereby
prohibited:chanroblesvirtuallawlibrary

xxxx

(5) A director, officer or committee member who violated the provisions of Article 45 on the
Liability of Directors, Officers and Committee Members, Article 48 on the Disloyalty of a Director,
and Article 49 on the Illegal Use of Confidential Information shall upon conviction suffer a fine of
not less than Five hundred thousand pesos (P500,000.00) nor more than Five hundred
thousand pesos (P500,000.00) or imprisonment of not less than five (5) years but not more than
ten (10) years or both at the court's discretion; [Emphasis added]

On whether the rule on exhaustion of administrative remedies was violated when the
Cooperative filed a criminal case against petitioner without undergoing conciliation/mediation
proceedings pursuant to the Cooperative Code and the By-laws of the Cooperative, the Court
rules in the negative. Conciliation or mediation is not a pre-requisite to the filing of a criminal
case for violation of RA 6938 against petitioner, because such case is not an intra-cooperative
dispute. As aptly pointed out by the CA:chanroblesvirtuallawlibrary

Neither can the accused-appellee insist that this is an intra-cooperative dispute and should have
been resolved at the cooperative level. As aptly argued by the People, this is not an
intra-cooperative dispute. Intra-cooperative dispute is a dispute arising between or among
members of the same cooperative. The instant case is a dispute between the Cooperative and
its former chairperson, the accused-appellee. The Board Resolution authorizing the filing of the
criminal complaint by the Board of Directors, for and in behalf of the Cooperative, is proof that
this is not an intra-cooperative dispute, and within the jurisdiction of the regular
court.19cralawlawlibrary
Moreover, it is well settled that in criminal cases where the offended party is the State, the
interest of the private complainant or the private offended party is limited to the civil liability, and
her role in the prosecution of the offense is limited to that of a witness for the prosecution.20 In
petitioner's criminal case for violation of Section 46 of RA 6938, the State is the real offended
party, while the Cooperative and its members are mere private complainants and witnesses
whose interests are limited to the civil aspect thereof. Clearly, such criminal case can hardly be
considered an intra-cooperative dispute, as it is not one arising between or among members of
the same cooperative.

On whether the dismissal of the charge against petitioner on demurrer to evidence amounts to
an acquittal, hence, final and unappealable, the Court rules in the negative.

In Gutib v. Court of Appeals,21 the Court stressed that demurrer to the evidence is an objection
by one of the parties in an action, to the effect that the evidence which his adversary produced
is insufficient in point of law, whether true or not, to make out a case or sustain the issue. The
party demurring challenges the sufficiency of the whole evidence to sustain a verdict. The Court,
in passing upon the sufficiency of the evidence raised in a demurrer, is merely required to
ascertain whether there is competent or sufficient evidence to sustain the indictment or to
support a verdict of guilt.

In People v. Sandiganbayan,22 the Court explained the general rule that the grant of a demurrer
to evidence operates as an acquittal and is, thus, final and unappealable, to
wit:chanroblesvirtuallawlibrary

The demurrer to evidence in criminal cases, such as the one at bar, is "filed after the
prosecution had rested its case" and when the same is granted, it calls "for an appreciation of
the evidence adduced by the prosecution and its sufficiency to warrant conviction beyond
reasonable doubt, resulting in a dismissal of the case on the merits, tantamount to an acquittal
of the accused." Such dismissal of a criminal case by the grant of demurrer to evidence may not
be appealed, for to do so would be to place the accused in double jeopardy. The verdict being
one of acquittal, the case ends there.23cralawlawlibrary

In this case, however, the RTC granted the demurrer to evidence and dismissed the case not
for insufficiency of evidence, but for lack of jurisdiction over the offense charged. Notably, the
RTC did not decide the case on the merits, let alone resolve the issue of petitioner's guilt or
innocence based on the evidence proffered by the prosecution. This being the case, the
October 14, 2008 RTC Order of dismissal does not operate as an acquittal, hence, may still be
subject to ordinary appeal under Rule 41 of the Rules of Court.24 As aptly noted by the
CA:chanroblesvirtuallawlibrary

The accused-appellee is also of a mistaken view that the dismissal of the case against her is an
acquittal. It should be emphasized' that "acquittal is always based on the merits, that is, the
defendant is acquitted because the evidence does not show that the defendant's guilt is beyond
reasonable doubt; but dismissal does not decide the case on the merits or that the defendant is
not guilty. Dismissal terminates the proceeding, either because the court is not a court of
competent jurisdiction, or the evidence does not show that the offense was committed within the
territorial jurisdiction of the court, or the complaint or information is not valid or sufficient in form
and substance, etc."25cralawlawlibrary

On whether the remand of the criminal case to the RTC violated her right against double
jeopardy due to its earlier dismissal on the ground of lack of jurisdiction, the Court rules in the
negative and upholds the CA in ruling that the dismissal having been granted upon petitioner's
instance, double jeopardy did not attach, thus:chanroblesvirtuallawlibrary

The accused-appellee cannot also contend that she will be placed in double jeopardy upon this
appeal. It must be stressed that the dismissal of the case against her was premised upon her
filing of a demurrer to evidence, and the finding, albeit erroneous, of the trial court that it is
bereft of jurisdiction.

The requisites that must be present for double jeopardy to attach are: (a) a valid complaint or
information; (b) a court of competent jurisdiction; (c) the accused has pleaded to the charge;
and (d) the accused has been convicted or acquitted or the case dismissed or terminated
without the express consent of the accused.

Definitely, there is no double jeopardy in this case as the dismissal was with the
accused-appellee's consent, that is, by moving for the dismissal of the case through a demurrer
to evidence. As correctly argued by the People, where the dismissal was ordered upon or with
express assent of the accused, he is deemed to have waived his protection against doubly
jeopardy. In this case at bar, the dismissal was granted upon motion of petitioners. Double
jeopardy, thus, did not attach.26cralawlawlibrary

The Court also finds no merit in petitioner's new argument that the prosecution of her case
before the RTC for violation of Section 46 of RA 6938 in Criminal Case No. 07-197750 is barred
by res judicata because the MeTC of Manila, Branch 22, in a Resolution27dated August 13,
2012, granted her demurrer to evidence and acquitted her in a criminal case for falsification of
private document in Criminal Case No. 370119-20-CR.28 In support of her flawed argument,
petitioner points out that the private complainants [officers and directors of the Cooperative] and
the subject matter [unreported sales profits of Coca-Cola products] of both cases are the same,
and that the case for violation of Section 46 of RA 6938 is actually and necessarily included in
the case for falsification of private documents.

At the outset, res judicata is a doctrine of civil law and thus has no bearing on criminal
proceedings.29 At any rate, petitioner's argument is incidentally related to double jeopardy
which embrace's a prohibition against being tried for any offense which necessarily includes or
is necessarily included in the offense charged in the former complaint or information.
Section 730 of Rule 117 lays down the requisites in order that the defense of double jeopardy
may prosper. There is double jeopardy when the following requisites are present: (1) a first
jeopardy attached prior to the second; (2) the first jeopardy has been validly terminated; and (3)
a second jeopardy is for the same offense as in the first.31 As to the first requisite, the first
jeopardy attaches only (a) after a valid indictment; (b) before a competent court; (c) after
arraignment; (d) when a valid plea has been entered; and (e) when the accused was acquitted
or convicted, or the case was dismissed or otherwise terminated without his express consent.32

In this case, there is no dispute that the first and second requisites of double jeopardy are
present in view of the MeTC Resolution33dated August 13, 2012 which granted petitioner's
demurrer to evidence and acquitted her in a criminal case for falsification of private document in
Criminal Case No. 370119-20-CR. Petitioner's argument dwells on whether the third requisite of
double jeopardy — a second jeopardy is for the same offense as in the first — is present. Such
question of identity or lack of identity of offenses is addressed by examining the essential
elements of each of the two offenses charged, as such elements are set out in the respective
legislative definitions of the offense involved.34

Thus, the remaining question to be resolved is whether the offense charged in the information
for Section 46 of RA 6938 necessarily includes or is necessarily included in a crime for
falsification of private document under Article 172 of the Revised Penal Code, as amended
(RPC). The test to determine whether an offense necessarily includes or is necessarily included
in the other is provided under Section 5, Rule .120 of the Rules of
Court:chanroblesvirtuallawlibrary

An offense charged necessarily includes the offense proved when some of the essential
elements or ingredients of the former, as alleged in the complaint or information, constitute the
latter. And an offense charged is necessarily included in the offense proved, when the essential
ingredients of the former constitute or form part of those constituting the latter.

After a careful examination of the Informations filed against petitioner for falsification of private
document in Criminal Case No. 370119-20-CR and for violation of Section 46, RA 6938 in
Criminal Case No. 01-197750, the Court holds that the first offense for which petitioner was
acquitted does not necessarily include and is not necessarily included in the second offense.

The Information for falsification of private document, on the one hand, alleged that petitioner,
being then the Chairperson and Managing Director of A. Mabini Elementary School Teachers
Multi-Purpose Cooperative, as part of her duty to prepare financial reports, falsified such report
for the School Year 1999-2000, in relation to the sales profits of Coca-Cola products in violation
of Article 172 (2)35 of the RPC. The elements of falsification of private document under Article
172, paragraph 2 of the RPC are: (1) that the offender committed any of the acts of falsification,
except those in paragraph 7, Article 171;36 (2) that the falsification was committed in any
private document; and (3) that the falsification caused damage to a third party or at least the
falsification was committed with intent to cause such damage.
The Information for violation of Section 46 of RA 6938 alleged, on the other hand, that being
then such officer and director of the Cooperative, petitioner willfully acquired personal interest or
equity adverse to it, in violation of her duty and of the confidence reposed upon her, by entering
into a contract with Coca-Cola in her own personal capacity, knowing fully well that the sales
profits of such products should have accrued to the Cooperative. The essential elements of
violation of Section 46 of RA 6938 are (1) that the offender is a director, officer or committee
member; and (2) that the offender willfully and lcnowingly (a) votes for or assents to patently
unlawful acts; (b) is guilty of gross negligence or bad faith in directing the affairs of the
cooperative; or (c) acquires any personal or pecuniary interest in conflict with their duty as such
directors, officers or committee member.

Verily, there is nothing common or similar between the essential elements of the crimes of
falsification of private document under Article 172 (2) of the RPC and that of violation of Section
46 of RA 6938, as alleged in the Informations filed against petitioner. As neither of the said
crimes can be said to necessarily include or is necessarily included in the other, the third
requisite for double jeopardy to attach—a second jeopardy is for the same offense as in the
first—is, therefore, absent. Not only are their elements different, they also have a distinct nature,
i.e., the former is malum in se, as what makes it a felony is criminal intent on the part of the
offender, while the latter is malum prohibitum, as what makes it a crime is the special, law
enacting it.

Moreover, in People v. Doriguez,37 the Court held:chanroblesvirtuallawlibrary

It is a cardinal rule that the protection against double jeopardy may be invoked only for the same
offense or identical offenses. A simple act may offend against two (or more) entirely distinct and
unrelated provisions of law, and if one provision requires proof of an additional fact or element
which the other does not, an acquittal or conviction or a dismissal of the information under one
does not bar prosecution under the other. Phrased elsewise, where two different laws (or
articles of the same code) defines two crimes, prior jeopardy as to one of them is no obstacle to
a prosecution of the other, although both offenses arise from the same fact, if each crime
involves some important act which is not an essential element of the other.38cralawlawlibrary

Since the Informations filed against petitioner were for separate, and distinct offenses as
discussed above—the first against' Article 172 (2) of the Revised Penal Code and the second
against Section 46 of the Cooperative Code (RA 6938)—one cannot be pleaded as a bar to the
other under the rule on double jeopardy. Besides, it is basic in criminal procedure that an
accused may be charged with as many crimes as defined in our penal laws even if these arose
from one incident. Thus, where a single act is directed against one person but said act
constitutes a violation of two or more entirely distinct and unrelated provisions of law, or by a
special law and the Revised Penal Code, as in this case, the prosecution against one is not an
obstacle to the prosecution of the other.39
WHEREFORE, premises considered, the petition is DENIED, and the Court of Appeals Decision
dated August 31, 2011 and its Resolution dated Jan. 31, 2012 in CA-G.R. CR No. 32363, are
AFFIRMED.

SO ORDERED.

VDA. DE MANGUERRA vs. RAUL RISOSG.R. NO. 152643, 28 AUGUST 2008563 SCRA
499FACTS:

A case of Estafe Through Falsication of Public Document before the RTC ofCebu was led
against Raul Risos, Susana Yongco, eah Abar!ue" and Att#$ %amalielD$&$ &on'e$ (t arose
from the falsication of a deed of sale allegedl# committed b#res)ondents where the# made it
a))ear that Conce)cion, the owner of themortgaged )ro)ert# *nown as the %orordo )ro)ert#, a+ed
her signature to thedocument$ -hile the case was on going, Conce)ion was conned at the
.a*ati.edical Center due to u))er gastro/intestinal bleeding$ Res)ondents led a .otionfor
Sus)ension on the ground of )re'udicial !uestion$ The# argued that the ci0il caseCE&/12345, an
action for declaration of nullit# of mortgage, should be rst resol0ed$ The counsel of Conce)cion
led a motion to ta*e the latter6s de)osition$ 7ee)lained the need to )er)etuate Conce)cion6s
testimon# due to her wea* )h#sicalcondition and old age$ The .otion for De)osition was granted
b# the RTC$ The CAre0ersed the RTC stating that, the eamination of the witness is go0erned
b#Section84 of Rule 885 and not Rule 13 of the Rules of Court$(SS9E:-hether or not Rule 13
would a))l# in this case$7ED:;o$ (n criminal cases, all witnesses shall gi0e their testimonies at
the trial of the case in the )resence of the 'udge$ This is to a<ord the accused the o))ortunit#to
cross/eamine the witnesses )ursuant to his constitutional right to confront thewitnesses face to
face$ (t also gi0es the )arties and their counsel the chance to)ro)ound such !uestions as the#
deem material and necessar# to su))ort their)osition or to test the credibilit# of said witnesses$
astl#, this rule enables the 'udge to obser0e the witnesses6 demeanor$(n this case, the 0er#
reason o<ered b# the )etitioners to eem)t Conce)cionfrom the co0erage of Rule 885 is at once
the ground which )laces her s!uarel#within the co0erage of the same )ro0ision$ Rule 885
s)ecicall# states that awitness ma# be conditionall# eamined: 8= if the witness is too sic* or inrm
toa))ear at the trial> or 1= if the witness has to lea0e the Phili))ines with no denitedate of
returning$9ndoubtedl#, the )rocedure set forth in Rule 885 a))lies to the case at bar$ (tis thus
re!uired that the conditional eamination be made before the court wherethe case is )ending$ (t is
also necessar# that the accused be notied, so that he canattend the eamination, sub'ect to his
right to wai0e the same after reasonablenotice$ As to the manner of eamination, the Rules
mandate that it be conducted inthe same manner as an eamination during trial, that is, through
question and answer.

PEOPLE OF THE PHILIPPINES, Petitioner, v. HONORABLE SANDIGANBAYAN, MANSUETO

V. HONRADA, CEFERINO S. PAREDES, JR. and GENEROSO S. SANSAET, Respondents
DECISION

REGALADO, J

Through the special civil action for certiorari at bar, petitioner seeks the annulment of the
resolution of respondent Sandiganbayan, promulgated on December 22, 1993, which denied
petitioners motion for the discharge of respondent Generoso S. Sansaet to be utilized as a state
witness, and its resolution of March 7, 1994 denying the motion for reconsideration of its
preceding disposition.1chanroblesvirtuallawlibrary

The records show that during the dates material to this case, respondent Honrada was the Clerk
of Court and Acting Stenographer of the First Municipal Circuit Trial Court, San
Francisco-Bunawan-Rosario in Agusan del Sur. Respondent Paredes was successively the
Provincial Attorney of Agusan del Sur, then Governor of the same province, and is at present a
Congressman. Respondent Sansaet was a practicing attorney who served as counsel for
Paredes in several instances pertinent to the criminal charges involved in the present recourse.

The same records also represent that sometime in 1976, respondent Paredes applied for a free
patent over Lot No. 3097-A, Pls-67 of the Rosario Public Land Subdivision Survey. His
application was approved and, pursuant to a free patent granted to him, an original certificate of
title was issued in his favor for that lot which is situated in the poblacionof San Francisco,
Agusan del Sur.

However, in 1985, the Director of Lands filed an action2 for the cancellation of respondent
Paredes patent and certificate of title since the land had been designated and reserved as a
school site in the aforementioned subdivision survey. The trial court rendered judgment3
nullifying said patent and title after finding that respondent Paredes had obtained the same
through fraudulent misrepresentations in his application. Pertinently, respondent Sansaet
served as counsel of Paredes in that civil case.4chanroblesvirtuallawlibrary

Consequent to the foregoing judgment of the trial court, upon the subsequent complaint of the
Sangguniang Bayan and the preliminary investigation conducted thereon, an information for
perjury5 was filed against respondent Paredes in the Municipal Circuit Trial Court.6 On
November 27, 1985, the Provincial Fiscal was, however, directed by the Deputy Minister of
Justice to move for the dismissal of the case on the ground inter alia of prescription, hence the
proceedings were terminated.7 In this criminal case, respondent Paredes was likewise
represented by respondent Sansaet as counsel.

Nonetheless, respondent* Paredes was thereafter haled before the Tanodbayan for preliminary
investigation on the charge that, by using his former position as Provincial Attorney to influence
and induce the Bureau of Lands officials to favorably act on his application for free patent, he
had violated Section 3(a) of Republic Act No. 3019, as amended. For the third time, respondent
Sansaet was Paredes counsel of record therein.

On August 29, 1988, the Tanodbayan, issued a resolution8 recommending the criminal
prosecution of respondent Paredes. Atty. Sansaet, as counsel for his aforenamed
co-respondent, moved for reconsideration and, because of its legal significance in this case, we
quote some of his allegations in that motion:

x x x respondent had been charged already by the complainants before the Municipal Circuit
Court of San Francisco, Agusan del Sur, went to jail on detention in 1984 under the same set of
facts and the same evidence x x x but said case after arraignment, was ordered dismissed by
the court upon recommendation of the Department of Justice. Copy of the dismissal order,
certificate of arraignment and the recommendation of the Department of Justice are hereto
attached for ready reference; thus the filing of this case will be a case of double jeopardy for
respondent herein x x x.9 (Italics supplied.)

A criminal case was subsequently filed with the Sandiganbayan10 charging respondent
Paredes with a violation of Section 3(a) of Republic Act No. 3019, as amended. However, a
motion to quash filed by the defense was later granted in respondent courts resolution of August
1, 199111and the case was dismissed on the ground of prescription.

On January 23, 1990, one Teofilo Gelacio, a taxpayer who had initiated the perjury and graft
charges against respondent Paredes, sent a letter to the Ombudsman seeking the investigation
of the three respondents herein for falsification of public documents.12 He claimed that
respondent Honrada, in conspiracy with his herein co-respondents, simulated and certified as
true copies certain documents purporting to be a notice of arraignment, dated July 1, 1985, and
transcripts of stenographic notes supposedly taken during the arraignment of Paredes on the
perjury charge.13 These falsified documents were annexed to respondent Paredes motion for
reconsideration of the Tanodbayan resolution for the filing of a graft charge against him, in order
to support his contention that the same would constitute double jeopardy.

In support of his claim, Gelacio attached to his letter a certification that no notice of arraignment
was ever received by the Office of the Provincial Fiscal of Agusan del Sur in connection with
that perjury case; and a certification of Presiding Judge Ciriaco Ario that said perjury case in his
court did not reach the arraignment stage since action thereon was suspended pending the
review of the case by the Department of Justice.14chanroblesvirtuallawlibrary

Respondents filed their respective counter-affidavits, but Sansaet subsequently discarded and
repudiated the submissions he had made in his counter-affidavit. In a so-called Affidavit of
Explanations and Rectifications,15 respondent Sansaet revealed that Paredes contrived to have
the graft case under preliminary investigation dismissed on the ground of double jeopardy by
making it that the perjury case had been dismissed by the trial court after he had been arraigned
therein.
For that purpose, the documents which were later filed by respondent Sansaet in the preliminary
investigation were prepared and falsified by his co-respondents in this case in the house of
respondent Paredes. To evade responsibility for his own participation in the scheme, he claimed
that he did so upon the instigation and inducement of respondent Paredes. This was intended to
pave the way for his discharge as a government witness in the consolidated cases, as in fact a
motion therefor was filed by the prosecution pursuant to their agreement.

Withal, in a resolution16 dated February 24, 1992, the Ombudsman approved the filing of
falsification charges against all the herein private respondents. The proposal for the discharge
of respondent Sansaet as a state witness was rejected by the Ombudsman on this evaluative
legal position:

x x x Taking his explanation, it is difficult to believe that a lawyer of his stature, in the absence of
deliberate intent to conspire, would be unwittingly induced by another to commit a crime. As
counsel for the accused in those criminal cases, Atty. Sansaet had control over the case theory
and the evidence which the defense was going to present. Moreover, the testimony or
confession of Atty. Sansaet falls under the mantle of privileged communication between the
lawyer and his client which may be objected to, if presented in the trial.

The Ombudsman refused to reconsider that resolution17 and, ostensibly to forestall any further
controversy, he decided to file separate informations for falsification of public documents against
each of the herein respondents. Thus, three criminal cases,18 each of which named one of the
three private respondents here as the accused therein, were filed in the graft court. However,
the same were consolidated for joint trial in the Second Division of the Sandiganbayan.

As stated at the outset, a motion was filed by the People on July 27, 1993 for the discharge of
respondent Sansaet as a state witness. It was submitted that all the requisites therefor, as
provided in Section 9, Rule 119 of the Rules of Court, were satisfied insofar as respondent
Sansaet was concerned. The basic postulate was that, except for the eyewitness testimony of
respondent Sansaet, there was no other direct evidence to prove the confabulated falsification
of documents by respondents Honrada and Paredes.

Unfortunately for the prosecution, respondent Sandiganbayan, hewing to the theory of the
attorney-client privilege adverted to by the Ombudsman and invoked by the two other private
respondents in their opposition to the prosecutions motion, resolved to deny the desired
discharge on this ratiocination:

From the evidence adduced, the opposition was able to establish that client and lawyer
relationship existed between Atty. Sansaet and Ceferino Paredes, Jr., before, during and after
the period alleged in the information. In view of such relationship, the facts surrounding the
case, and other confidential matter must have been disclosed by accused Paredes, as client, to
accused Sansaet, as his lawyer in his professional capacity. Therefore, the testimony of Atty.
Sansaet on the facts surrounding the offense charged in the information is
privileged.19chanroblesvirtuallawlibrary

Reconsideration of said resolution having been likewise denied,20 the controversy was elevated
to this Court by the prosecution in an original action for the issuance of the extraordinary writ of
certiorari against respondent Sandiganbayan.

The principal issues on which the resolution of the petition at bar actually turns are therefore (1)
whether or not the projected testimony of respondent Sansaet, as proposed state witness, is
barred by the attorney-client privilege; and (2) whether or not, as a consequence thereof, he is
eligible for discharge to testify as a particeps criminis.

As already stated, respondent Sandiganbayan ruled that due to the lawyer-client relationship
which existed between herein respondents Paredes and Sansaet during the relevant periods,
the facts surrounding the case and other confidential matters must have been disclosed by
respondent Paredes, as client, to respondent Sansaet, as his lawyer. Accordingly, it found no
reason to discuss it further since Atty. Sansaet cannot be presented as a witness against
accused Ceferino S. Paredes, Jr. without the latters consent.21chanroblesvirtuallawlibrary

The Court is of a contrary persuasion. The attorney-client privilege cannot apply in these cases,
as the facts thereof and the actuations of both respondents therein constitute an exception to
the rule. For a clearer understanding of that evidential rule, we will first sweep aside some
distracting mental cobwebs in these cases.

1. It may correctly be assumed that there was a confidential communication made by Paredes
to Sansaet in connection with Criminal Cases Nos. 17791-93 for falsification before respondent
court, and this may reasonably be expected since Paredes was the accused and Sansaet his
counsel therein. Indeed, the fact that Sansaet was called to witness the preparation of the
falsified documents by Paredes and Honrada was as eloquent a communication, if not more,
than verbal statements being made to him by Paredes as to the fact and purpose of such
falsification. It is significant that the evidentiary rule on this point has always referred to any
communication, without distinction or qualification.22chanroblesvirtuallawlibrary

In the American jurisdiction from which our present evidential rule was taken, there is no
particular mode by which a confidential communication shall be made by a client to his attorney.
The privilege is not confined to verbal or written communications made by the client to his
attorney but extends as well to information communicated by the client to the attorney by other
means.23chanroblesvirtuallawlibrary

Nor can it be pretended that during the entire process, considering their past and existing
relations as counsel and client and, further, in view of the purpose for which such falsified
documents were prepared, no word at all passed between Paredes and Sansaet on the subject
matter of that criminal act. The clincher for this conclusion is the undisputed fact that said
documents were thereafter filed by Sansaet in behalf of Paredes as annexes to the motion for
reconsideration in the preliminary investigation of the graft case before the Tanodbayan.24 Also,
the acts and words of the parties during the period when the documents were being falsified
were necessarily confidential since Paredes would not have invited Sansaet to his house and
allowed him to witness the same except under conditions of secrecy and confidence.

2. It is postulated that despite such complicity of Sansaet at the instance of Paredes in the
criminal act for which the latter stands charged, a distinction must be made between confidential
communications relating to past crimes already committed, and future crimes intended to be
committed, by the client. Corollarily, it is admitted that the announced intention of a client to
commit a crime is not included within the confidences which his attorney is bound to respect.
Respondent court appears, however, to believe that in the instant case it is dealing with a past
crime, and that respondent Sansaet is set to testify on alleged criminal acts of respondents
Paredes and Honrada that have already been committed and consummated.

The Court reprobates the last assumption which is flawed by a somewhat inaccurate basis. It is
true that by now, insofar as the falsifications to be testified to in respondent court are concerned,
those crimes were necessarily committed in the past. But for the application of the
attorney-client privilege, however, the period to be considered is the date when the privileged
communication was made by the client to the attorney in relation to either a crime committed in
the past or with respect to a crime intended to be committed in the future. In other words, if the
client seeks his lawyers advice with respect to a crime that the former has theretofore
committed, he is given the protection of a virtual confessional seal which the attorney-client
privilege declares cannot be broken by the attorney without the clients consent. The same
privileged confidentiality, however, does not attach with regard to a crime which a client intends
to commit thereafter or in the future and for purposes of which he seeks the lawyers advice.

Statements and communications regarding the commission of a crime already committed, made
by a party who committed it, to an attorney, consulted as such, are privileged communications.
Contrarily, the unbroken stream of judicial dicta is to the effect that communications between
attorney and client having to do with the clients contemplated criminal acts, or in aid or
furtherance thereof, are not covered by the cloak of privilegesordinarily existing in reference to
communications between attorney and client.25 (Emphases supplied.)

3. In the present cases, the testimony sought to be elicited from Sansaet as state witness are
the communications made to him by physical acts and/or accompanying words of Paredes at
the time he and Honrada, either with the active or passive participation of Sansaet, were about
to falsify, or in the process of falsifying, the documents which were later filed in the Tanodbayan
by Sansaet and culminated in the criminal charges now pending in respondent Sandiganbayan.
Clearly, therefore, the confidential communications thus made by Paredes to Sansaet were for
purposes of and in reference to the crime of falsification which had not yet been committedin the
past by Paredes but which he, in confederacy with his present co-respondents, later committed.
Having been made for purposes of a future offense, those communications are outside the pale
of the attorney-client privilege.

4. Furthermore, Sansaet was himself a conspirator in the commission of that crime of

falsification which he, Paredes and Honrada concocted and foisted upon the authorities. It is
well settled that in order that a communication between a lawyer and his client may be
privileged, it must be for a lawful purpose or in furtherance of a lawful end. The existence of an
unlawful purpose prevents the privilege from attaching.26 In fact, it has also been pointed out to
the Court that the prosecution of the honorable relation of attorney and client will not be
permitted under the guise of privilege, and every communication made to an attorney by a client
for a criminal purpose is a conspiracy or attempt at a conspiracy which is not only lawful to
divulge, but which the attorney under certain circumstances may be bound to disclose at once in
the interest of justice.27chanroblesvirtuallawlibrary

It is evident, therefore, that it was error for respondent Sandiganbayan to insist that such
unlawful communications intended for an illegal purpose contrived by conspirators are
nonetheless covered by the so-called mantle of privilege. To prevent a conniving counsel from
revealing the genesis of a crime which was later committed pursuant to a conspiracy, because
of the objection thereto of his conspiring client, would be one of the worst travesties in the rules
of evidence and practice in the noble profession of law.

II

On the foregoing premises, we now proceed to the consequential inquiry as to whether

respondent Sansaet qualifies, as a particeps criminis, for discharge from the criminal
prosecution in order to testify for the State. Parenthetically, respondent court, having arrived at a
contrary conclusion on the preceding issue, did not pass upon this second aspect and the relief
sought by the prosecution which are now submitted for our resolution in the petition at bar. We
shall, however, first dispose likewise of some ancillary questions requiring preludial clarification.

1. The fact that respondent Sandiganbayan did not fully pass upon the query as to whether or
not respondent Sansaet was qualified to be a state witness need not prevent this Court from
resolving that issue as prayed for by petitioner. Where the determinative facts and evidence
have been submitted to this Court such that it is in a position to finally resolve the dispute, it will
be in the pursuance of the ends of justice and the expeditious administration thereof to resolve
the case on the merits, instead of remanding it to the trial court.28chanroblesvirtuallawlibrary

2. A reservation is raised over the fact that the three private respondents here stand charged in
three separate informations. It will be recalled that in its resolution of February 24, 1992, the
Ombudsman recommended the filing of criminal charges for falsification of public documents
against all the respondents herein. That resolution was affirmed but, reportedly in order to
obviate further controversy, one information was filed against each of the three respondents
here, resulting in three informations for the same acts of falsification.

This technicality was, however, sufficiently explained away during the deliberations in this case
by the following discussion thereof by Mr. Justice Davide, to wit:

Assuming no substantive impediment exists to block Sansaets discharge as state witness, he

can, nevertheless, be discharged even if indicted under a separate information. I suppose the
three cases were consolidated for joint trial since they were all raffled to the Second Division of
the Sandiganbayan. Section 2, Rule XV of the Revised Rules of the Sandiganbayan allows
consolidation in only one Division of cases arising from the same incident or series of incidents,
or involving common questions of law and fact. Accordingly, for all legal intents and purposes,
Sansaet stood as co-accused and he could be discharged as state witness. It is of no moment
that he was charged separately from his co-accused. While Section 9 of Rule 119 of the 1985
Rules of Criminal Procedure uses the word jointly, which was absent in the old provision, the
consolidated and joint trial has the effect of making the three accused co-accused or joint
defendants, especially considering that they are charged for the same offense. In criminal law,
persons indicted for the same offense and tried together are called joint defendants.

As likewise submitted therefor by Mr. Justice Francisco along the same vein, there having been
a consolidation of the three cases, the several actions lost their separate identities and became
a single action in which a single judgment is rendered, the same as if the different causes of
action involved had originally been joined in a single action.29chanroblesvirtuallawlibrary

Indeed, the former provision of the Rules referring to the situation (w)hen two or more persons
are charged with the commission of a certain offense was too broad and indefinite; hence the
word joint was added to indicate the identity of the charge and the fact that the accused are all
together charged therewith substantially in the same manner in point of commission and time.
The word joint means common to two or more, as involving the united activity of two or more, or
done or produced by two or more working together, or shared by or affecting two or more.30
Had it been intended that all the accused should always be indicted in one and the same
information, the Rules could have said so with facility, but it did not so require in consideration of
the circumstances obtaining in the present case and the problems that may arise from
amending the information. After all, the purpose of the Rule can be achieved by consolidation of
the cases as an alternative mode.

2. We have earlier held that Sansaet was a conspirator in the crime of falsification, and the rule
is that since in a conspiracy the act of one is the act of all, the same penalty shall be imposed
on all members of the conspiracy. Now, one of the requirements for a state witness is that he
does not appear to be the most guilty.31 not that he must be the least guilty32 as is so often
erroneously framed or submitted. The query would then be whether an accused who was held
guilty by reason of membership in a conspiracy is eligible to be a state witness.
To be sure, in People vs. Ramirez, et al.33 we find this obiter:

It appears that Apolonio Bagispas was the real mastermind. It is believable that he persuaded
the others to rob Paterno, not to kill him for a promised fee. Although he did not actually commit
any of the stabbings, it was a mistake to discharge Bagispas as a state witness. All the
perpetrators of the offense, including him, were bound in a conspiracy that made them equally
guilty.

However, prior thereto, in People vs. Roxas, et al.,34two conspirators charged with five others
in three separate informations for multiple murder were discharged and used as state witnesses
against their confederates. Subsequent thereto, in Lugtu, et al. vs. Court of Appeals, et al.,35
one of the co-conspirators was discharged from the information charging him and two others
with the crime of estafa. The trial court found that he was not the most guilty as, being a poor
and ignorant man, he was easily convinced by his two co-accused to open the account with the
bank and which led to the commission of the crime.

On appeal, this Court held that the finding of respondent appellate court that Lugtu was just as
guilty as his co-accused, and should not be discharged as he did not appear to be not the most
guilty, is untenable. In other words, the Court took into account the gravity or nature of the acts
committed by the accused to be discharged compared to those of his co-accused, and not
merely the fact that in law the same or equal penalty is imposable on all of them.

Eventually, what was just somehow assumed but not explicitly articulated found expression in
People vs. Ocimar, et al.,36 which we quote in extenso:

Ocimar contends that in the case at bar Bermudez does not satisfy the conditions for the
discharge of a co-accused to become a state witness. He argues that no accused in a
conspiracy can lawfully be discharged and utilized as a state witness, for not one of them could
satisfy the requisite of appearing not to be the most guilty. Appellant asserts that since accused
Bermudez was part of the conspiracy, he is equally guilty as the others.

We do not agree. First, there is absolute necessity for the testimony of Bermudez. For, despite
the presentation of four (4) other witnesses, none of them could positively identify the accused
except Bermudez who was one of those who pulled the highway heist which resulted not only in
the loss of cash, jewelry and other valuables, but even the life of Capt. Caeba, Jr. It was in fact
the testimony of Bermudez that clinched the case for the prosecution. Second, without his
testimony, no other direct evidence was available for the prosecution to prove the elements of
the crime. Third, his testimony could be, as indeed it was, substantially corroborated in its
material points as indicated by the trial court in its well-reasoned decision. Fourth, he does not
appear to be the most guilty. As the evidence reveals, he was only invited to a drinking party
without having any prior knowledge of the plot to stage a highway robbery. But even assuming
that he later became part of the conspiracy, he does not appear to be the most guilty. What the
law prohibits is that the most guilty will be set free while his co-accused who are less guilty will
be sent to jail. And by most guilty we mean the highest degree of culpability in terms of
participation in the commission of the offense and not necessarily the severity of the penalty
imposed. While all the accused may be given the same penalty by reason of conspiracy, yet
one may be considered least guilty if We take into account his degree of participation in the
perpetration of the offense. Fifth, there is no evidence that he has at any time been convicted of
any offense involving moral turpitude.

xxx

Thus, We agree with the observations of the Solicitor General that the rule on the discharge of
an accused to be utilized as state witness clearly looks at his actual and individual participation
in the commission of the crime, which may or may not have been perpetrated in conspiracy with
the other accused. Since Bermudez was not individually responsible for the killing committed on
the occasion of the robbery except by reason of conspiracy, it cannot be said then that
Bermudez appears to be the most guilty. Hence, his discharge to be a witness for the
government is clearly warranted. (Italics ours.)

The rule of equality in the penalty to be imposed upon conspirators found guilty of a criminal
offense is based on the concurrence of criminal intent in their minds and translated into
concerted physical action although of varying acts or degrees of depravity. Since the Revised
Penal Code is based on the classical school of thought, it is the identity of the mens rea which is
considered the predominant consideration and, therefore, warrants the imposition of the same
penalty on the consequential theory that the act of one is thereby the act of all.

Also, this is an affair of substantive law which should not be equated with the procedural rule on
the discharge of particeps criminis. This adjective device is based on other considerations, such
as the need for giving immunity to one of them in order that not all shall escape, and the judicial
experience that the candid admission of an accused regarding his participation is a guaranty
that he will testify truthfully. For those reasons, the Rules provide for certain qualifying criteria
which, again, are based on judicial experience distilled into a judgmental policy.

III

The Court is reasonably convinced, and so holds, that the other requisites for the discharge of
respondent Sansaet as a state witness are present and should have been favorably appreciated
by the Sandiganbayan.

Respondent Sansaet is the only cooperative eyewitness to the actual commission of the
falsification charged in the criminal cases pending before respondent court, and the prosecution
is faced with the formidable task of establishing the guilt of the two other co-respondents who
steadfastly deny the charge and stoutly protest their innocence. There is thus no other direct
evidence available for the prosecution of the case, hence there is absolute necessity for the
testimony of Sansaet whose discharge is sought precisely for that purpose. Said respondent
has indicated his conformity thereto and has, for the purposes required by the Rules, detailed
the substance of his projected testimony in his Affidavit of Explanations and Rectifications.

His testimony can be substantially corroborated on its material points by reputable witnesses,
identified in the basic petition with a digest of their prospective testimonies, as follows: Judge
Ciriaco C. Ario, Municipal Circuit Trial Court in San Francisco, Agusan del Sur; Provincial
Prosecutor and Deputized Ombudsman Prosecutor Claudio A. Nistal; Teofilo Gelacio, private
complainant who initiated the criminal cases through his letter-complaint; Alberto Juvilan of the
Sangguniang Bayan of San Fernando, Agusan del Sur, who participated in the resolution asking
their Provincial Governor to file the appropriate case against respondent Paredes, and
Francisco Macalit, who obtained the certification of non-arraignment from Judge Ario.

On the final requirement of the Rules, it does not appear that respondent Sansaet has at any
time been convicted of any offense involving moral turpitude. Thus, with the confluence of all the
requirements for the discharge of this respondent, both the Special Prosecutor and the Solicitor
General strongly urge and propose that he be allowed to testify as a state witness.

This Court is not unaware of the doctrinal rule that, on this procedural aspect, the prosecution
may propose but it is for the trial court, in the exercise of its sound discretion, to determine the
merits of the proposal and make the corresponding disposition. It must be emphasized,
however, that such discretion should have been exercised, and the disposition taken on a
holistic view of all the facts and issues herein discussed, and not merely on the sole issue of the
applicability of the attorney-client privilege.

This change of heart and direction respondent Sandiganbayan eventually assumed, after the
retirement of two members of its Second Division 37and the reconstitution thereof. In an
inversely anticlimactic Manifestation and Comment 38 dated June 14, 1995, as required by this
Court in its resolution on December 5, 1994, the chairman and new members thereof 39
declared:

4) That the questioned Resolutions of December 22, 1993 and March 7, 1994 upon which the
Petition for Certiorari filed by the prosecution are based, was penned by Associate Justice
Narciso T. Atienza and concurred in by the undersigned and Associate Justice Augusto M.
Amores;

5) That while the legal issues involved had been already discussed and passed upon by the
Second Division in the aforesaid Resolution, however, after going over the arguments submitted
by the Solicitor-General and re-assessing Our position on the matter, We respectfully beg leave
of the Honorable Supreme Court to manifest that We are amenable to setting aside the
questioned Resolutions and to grant the prosecutions motion to discharge accused Generoso
Sansaet as state witness, upon authority of the Honorable Supreme Court for the issuance of
the proper Resolution to that effect within fifteen (15) days from notice thereof.
WHEREFORE, the writ of certiorari prayed for is hereby granted SETTING ASIDE the impugned
resolutions and ORDERING that the present reliefs sought in these cases by petitioner be
allowed and given due course by respondent Sandiganbayan.

SO ORDERED.

G.R. No. 197291 April 3, 2013

DATU ANDAL AMPATUAN JR., Petitioner,

vs.
SEC. LEILA DE LIMA, as Secretary of the Department of Justice, CSP CLARO ARELLANO, as
Chief State Prosecutor, National Prosecution Service, and PANEL OF PROSECUTORS OF
THE MAGUINDANAO MASSACRE, headed by RSP PETER MEDALLE, Respondents.

DECISION

BERSAMIN, J.:

In matters involving the exercise of judgment and discretion, mandamus cannot be used to
direct the manner or the particular way the judgment and discretion are to be exercised.
Consequently, the Secretary of Justice may be compelled by writ of mandamus to act on a
letter-request or a motion to include a person in the information, but may not be compelled by
writ of mandamus to act in a certain way, i.e., to grant or deny such letter-request or motion.

The Case

This direct appeal by petition for review on certiorari has been taken from the final order issued
on June 27, 2011 in Civil Case No. 10-1247771 by the Regional Trial Court (RTC), Branch 26,
in Manila, dismissing petitioner’s petition for mandamus.2

Antecedents

History will never forget the atrocities perpetrated on November 23, 2009, when 57 innocent
civilians were massacred in Sitio Masalay, Municipality of Ampatuan, Maguindanao Province.
Among the principal suspects was petitioner, then the Mayor of the Municipality of Datu Unsay,
Maguindanao Province. Inquest proceedings were conducted against petitioner on November
26, 2009 at the General Santos (Tambler) Airport Lounge, before he was flown to Manila and
detained at the main office of the National Bureau of Investigation (NBI). The NBI and the
Philippine National Police (PNP) charged other suspects, numbering more than a hundred, for
what became aptly known as the Maguindanao massacre.3
Through Department Order No. 948, then Secretary of Justice Agnes Devanadera constituted a
Special Panel of Prosecutors to conduct the preliminary investigation.

On November 27, 2009, the Department of Justice (DOJ) resolved to file the corresponding
informations for murder against petitioner, and to issue subpoenae to several persons.4 On
December 1, 2009, 25 informations for murder were also filed against petitioner in the Regional
Trial Court, 12th Judicial Region, in Cotabato City.5

On December 3, 2009, Secretary of Justice Devanadera transmitted her letter to Chief Justice
Puno requesting the transfer of the venue of the trial of the Maguindanao massacre from
Cotabato City to Metro Manila, either in Quezon City or in Manila, to prevent a miscarriage of
justice.6 On December 8, 2009, the Court granted the request for the transfer of venue.7
However, on December 9, 2009, but prior to the transfer of the venue of the trial to Metro
Manila, the Prosecution filed a manifestation regarding the filing of 15 additional informations for
murder against petitioner in Branch 15 of the Cotabato City RTC.8 Later on, additional
informations for murder were filed against petitioner in the RTC in Quezon City, Branch 211, the
new venue of the trial pursuant to the resolution of the Court.9

The records show that petitioner pleaded not guilty to each of the 41 informations for murder
when he was arraigned on January 5, 2010,10 February 3, 2010,11 and July 28, 2010.12

In the joint resolution issued on February 5, 2010, the Panel of Prosecutors charged 196
individuals with multiple murder in relation to the Maguindanao massacre.13 It appears that in
issuing the joint resolution of February 5, 2010 the Panel of Prosecutors partly relied on the twin
affidavits of one Kenny Dalandag, both dated December 7, 2009.14

On August 13, 2010, Dalandag was admitted into the Witness Protection Program of the
DOJ.15 On September 7, 2010, the QC RTC issued its amended pre-trial order,16 wherein
Dalandag was listed as one of the Prosecution witnesses.17

On October 14, 2010, petitioner, through counsel, wrote to respondent Secretary of Justice Leila
De Lima and Assistant Chief State Prosecutor Richard Fadullon to request the inclusion of
Dalandag in the informations for murder considering that Dalandag had already confessed his
participation in the massacre through his two sworn declarations.18Petitioner reiterated the
request twice more on October 22, 201019 and November 2, 2010.20

By her letter dated November 2, 2010,21 however, Secretary De Lima denied petitioner’s
request.

Accordingly, on December 7, 2010, petitioner brought a petition for mandamus in the RTC in
Manila (Civil Case No. 10-124777),22 seeking to compel respondents to charge Dalandag as
another accused in the various murder cases undergoing trial in the QC RTC.
On January 19, 2011,23 the RTC in Manila set a pre-trial conference on January 24, 2011 in
Civil Case No. 10-124777. At the close of the pre-trial, the RTC in Manila issued a pre-trial
order.

In their manifestation and motion dated February 15, 201124 and February 18, 2011,25
respondents questioned the propriety of the conduct of a trial in a proceeding for mandamus.
Petitioner opposed.

On February 15, 2011, petitioner filed a motion for the production of documents,26 which the
RTC in Manila granted on March 21, 2011 after respondents did not file either a comment or an
opposition.

Respondents then sought the reconsideration of the order of March 21, 2011.

On March 21, 2011,27 the RTC in Manila issued a subpoena to Dalandag, care of the Witness
Protection Program of the DOJ, requiring him to appear and testify on April 4, 2011 in Civil Case
No. 10-124777.

On April 4, 2011, respondents moved to quash the subpoena.28 Petitioner opposed the motion
to quash the subpoena on April 15, 2011.29 The parties filed other papers, specifically,
respondents their reply dated April 26, 2011;30 petitioner an opposition on May 12, 2011;31 and
respondents another reply dated May 20, 2011.32

On June 27, 2011,33 the RTC of Manila issued the assailed order in Civil Case No. 10-124777
dismissing the petition for mandamus.34

Hence, this appeal by petition for review on certiorari.

Issues

Petitioner raises the following issues, to wit:

1. WHETHER THE PUBLIC RESPONDENTS MAY BE COMPELLED BY MANDAMUS TO

INVESTIGATE AND PROSECUTE KENNY DALANDAG AS AN ACCUSED IN THE
INFORMATIONS FOR MULTIPLE MURDER IN THE MAGUINADANAO MASSACRE CASES
IN LIGHT OF HIS ADMITTED PARTICIPATION THEREAT IN AFFIDAVITS AND OFFICIAL
RECORDS FILED WITH THE PROSECUTOR AND THE QC RTC; and,

2. WHETHER THE SUBSEQUENT INCLUSION OF KENNY DALANDAG IN THE WITNESS

PROTECTION PROGRAM JUSTIFIES EXCLUSION AS AN ACCUSED AND HIS
NON-INDICTMENT FOR HIS COMPLICITY IN THE MAGUINDANAO MASSACRE
NOTWITHSTANDING ADMISSIONS MADE THAT HE TOOK PART IN ITS PLANNING AND
EXECUTION.35
The crucial issue is whether respondents may be compelled by writ of mandamus to charge
Dalandag as an accused for multiple murder in relation to the Maguindanao massacre despite
his admission to the Witness Protection Program of the DOJ.

Ruling

The appeal lacks merit.

The prosecution of crimes pertains to the Executive Department of the Government whose
principal power and responsibility are to see to it that our laws are faithfully executed. A
necessary component of the power to execute our laws is the right to prosecute their violators.
The right to prosecute vests the public prosecutors with a wide range of discretion – the
discretion of what and whom to charge, the exercise of which depends on a smorgasbord of
factors that are best appreciated by the public prosecutors.36

The public prosecutors are solely responsible for the determination of the amount of evidence
sufficient to establish probable cause to justify the filing of appropriate criminal charges against
a respondent. Theirs is also the quasi-judicial discretion to determine whether or not criminal
cases should be filed in court.37

Consistent with the principle of separation of powers enshrined in the Constitution, the Court
deems it a sound judicial policy not to interfere in the conduct of preliminary investigations, and
to allow the Executive Department, through the Department of Justice, exclusively to determine
what constitutes sufficient evidence to establish probable cause for the prosecution of supposed
offenders. By way of exception, however, judicial review may be allowed where it is clearly
established that the public prosecutor committed grave abuse of discretion, that is, when he has
exercised his discretion "in an arbitrary, capricious, whimsical or despotic manner by reason of
passion or personal hostility, patent and gross enough as to amount to an evasion of a positive
duty or virtual refusal to perform a duty enjoined by law."38

The records herein are bereft of any showing that the Panel of Prosecutors committed grave
abuse of discretion in identifying the 196 individuals to be indicted for the Maguindanao
massacre. It is notable in this regard that petitioner does not assail the joint resolution
recommending such number of individuals to be charged with multiple murder, but only seeks to
have Dalandag be also investigated and charged as one of the accused based because of his
own admissions in his sworn declarations. However, his exclusion as an accused from the
informations did not at all amount to grave abuse of discretion on the part of the Panel of
Prosecutors whose procedure in excluding Dalandag as an accused was far from arbitrary,
capricious, whimsical or despotic. Section 2, Rule 110 of the Rules of Court, which requires that
"the complaint or information shall be xxx against all persons who appear to be responsible for
the offense involved," albeit a mandatory provision, may be subject of some exceptions, one of
which is when a participant in the commission of a crime becomes a state witness.
The two modes by which a participant in the commission of a crime may become a state witness
are, namely: (a) by discharge from the criminal case pursuant to Section 17 of Rule 119 of the
Rules of Court; and (b) by the approval of his application for admission into the Witness
Protection Program of the DOJ in accordance with Republic Act No. 6981 (The Witness
Protection, Security and Benefit Act).39 These modes are intended to encourage a person who
has witnessed a crime or who has knowledge of its commission to come forward and testify in
court or quasi-judicial body, or before an investigating authority, by protecting him from
reprisals, and shielding him from economic dislocation.

These modes, while seemingly alike, are distinct and separate from each other.

Under Section 17, Rule 119 of the Rules of Court, the discharge by the trial court of one or more
of several accused with their consent so that they can be witnesses for the State is made upon
motion by the Prosecution before resting its case. The trial court shall require the Prosecution to
present evidence and the sworn statements of the proposed witnesses at a hearing in support
of the discharge. The trial court must ascertain if the following conditions fixed by Section 17 of
Rule 119 are complied with, namely: (a) there is absolute necessity for the testimony of the
accused whose discharge is requested; (b) there is no other direct evidence available for the
proper prosecution of the offense committed, except the testimony of said accused; (c) the
testimony of said accused can be substantially corroborated in its material points; (d) said
accused does not appear to be most guilty; and (e) said accused has not at any time been
convicted of any offense involving moral turpitude.

On the other hand, Section 10 of Republic Act No. 6981 provides:

Section 10. State Witness. — Any person who has participated in the commission of a crime
and desires to be a witness for the State, can apply and, if qualified as determined in this Act
and by the Department, shall be admitted into the Program whenever the following
circumstances are present:

a. the offense in which his testimony will be used is a grave felony as defined under the Revised
Penal Code or its equivalent under special laws;

b. there is absolute necessity for his testimony;

c. there is no other direct evidence available for the proper prosecution of the offense
committed;

d. his testimony can be substantially corroborated on its material points;

e. he does not appear to be most guilty; and

f. he has not at any time been convicted of any crime involving moral turpitude.

An accused discharged from an information or criminal complaint by the court in order that he
may be a State Witness pursuant to Section 9 and 10 of Rule 119 of the Revised Rules of Court
may upon his petition be admitted to the Program if he complies with the other requirements of
this Act. Nothing in this Act shall prevent the discharge of an accused, so that he can be used
as a State Witness under Rule 119 of the Revised Rules of Court.

Save for the circumstance covered by paragraph (a) of Section 10, supra, the requisites under
both rules are essentially the same. Also worth noting is that an accused discharged from an
information by the trial court pursuant to Section 17 of Rule 119 may also be admitted to the
Witness Protection Program of the DOJ provided he complies with the requirements of Republic
Act No. 6981.

A participant in the commission of the crime, to be discharged to become a state witness

pursuant to Rule 119, must be one charged as an accused in the criminal case. The discharge
operates as an acquittal of the discharged accused and shall be a bar to his future prosecution
for the same offense, unless he fails or refuses to testify against his co-accused in accordance
with his sworn statement constituting the basis for his discharge.40 The discharge is expressly
left to the sound discretion of the trial court, which has the exclusive responsibility to see to it
that the conditions prescribed by the rules for that purpose exist.41

While it is true that, as a general rule, the discharge or exclusion of a co-accused from the
information in order that he may be utilized as a Prosecution witness rests upon the sound
discretion of the trial court,42 such discretion is not absolute and may not be exercised
arbitrarily, but with due regard to the proper administration of justice.43 Anent the requisite that
there must be an absolute necessity for the testimony of the accused whose discharge is
sought, the trial court has to rely on the suggestions of and the information provided by the
public prosecutor. The reason is obvious – the public prosecutor should know better than the
trial court, and the Defense for that matter, which of the several accused would best qualify to
be discharged in order to become a state witness. The public prosecutor is also supposed to
know the evidence in his possession and whomever he needs to establish his case,44 as well
as the availability or non-availability of other direct or corroborative evidence, which of the
accused is the ‘most guilty’ one, and the like.45

On the other hand, there is no requirement under Republic Act No. 6981 for the Prosecution to
first charge a person in court as one of the accused in order for him to qualify for admission into
the Witness Protection Program. The admission as a state witness under Republic Act No. 6981
also operates as an acquittal, and said witness cannot subsequently be included in the criminal
information except when he fails or refuses to testify. The immunity for the state witness is
granted by the DOJ, not by the trial court. Should such witness be meanwhile charged in court
as an accused, the public prosecutor, upon presentation to him of the certification of admission
into the Witness Protection Program, shall petition the trial court for the discharge of the
witness.46 The Court shall then order the discharge and exclusion of said accused from the
information.47

The admission of Dalandag into the Witness Protection Program of the Government as a state
witness since August 13, 2010 was warranted by the absolute necessity of his testimony to the
successful prosecution of the criminal charges. Apparently, all the conditions prescribed by
Republic Act No. 6981 were met in his case. That he admitted his participation in the
commission of the Maguindanao massacre was no hindrance to his admission into the Witness
Protection Program as a state witness, for all that was necessary was for him to appear not the
most guilty. Accordingly, he could not anymore be charged for his participation in the
Maguindanao massacre, as to which his admission operated as an acquittal, unless he later on
refuses or fails to testify in accordance with the sworn statement that became the basis for his
discharge against those now charged for the crimes.

Mandamus shall issue when any tribunal, corporation, board, officer or person unlawfully
neglects the performance of an act that the law specifically enjoins as a duty resulting from an
office, trust, or station. It is proper when the act against which it is directed is one addressed to
the discretion of the tribunal or officer. In matters involving the exercise of judgment and
discretion, mandamus may only be resorted to in order to compel respondent tribunal,
corporation, board, officer or person to take action, but it cannot be used to direct the manner or
the particular way discretion is to be exercised,48or to compel the retraction or reversal of an
action already taken in the exercise of judgment or discretion.49

As such, respondent Secretary of Justice may be compelled to act on the letter-request of

petitioner, but may not be compelled to act in a certain way, i.e., to grant or deny such
letter-request. Considering that respondent Secretary of Justice already denied the
letter-request, mandamus was no longer available as petitioner's recourse.

WHEREFORE, the Court DENIES the petition for review on certiorari; AFFIRMS the final order
issued on June 27, 2011 in Civil Case No. 10-124777 by the Regional Trial Court in Manila; and
ORDERS petitioner to pay the costs of suit.

SO ORDERED.

G.R. No. 173319 December 4, 2009

FEDERICO MIGUEL OLBES, Petitioner,

vs.
HON. DANILO A. BUEMIO, in his capacity as pairing presiding judge of Branch 22 of the
Metropolitan Trial Court of Manila, PEOPLE OF THE PHILIPPINES, SAMIR MUHSEN and
ROWENA MUHSEN, Respondents.
DECISION

CARPIO MORALES, J.:

On complaint of Samir and Rowena Muhsen, Federico Miguel Olbes (petitioner) was indicted for
Grave Coercion before the Metropolitan Trial Court (MeTC) of Manila by Information1 dated
June 28, 2002 which was raffled to Branch 22 thereof. On October 28, 2002, petitioner posted
bail and was released.

Denying petitioner’s motion to defer or suspend his arraignment in light of his pending petition
for review before the Department of Justice from the City Fiscal’s Resolution finding probable
cause to hale him into court, Judge Hipolito dela Vega proceeded with petitioner’s arraignment
on February 12, 2003 in which he pleaded not guilty to the charge.2 Pre-trial was thereupon set
to May 28, 2003 which was, however, declared a non-working day due to the occurrence of
typhoon "Chedeng." The pre-trial was thus reset to October 23, 2003.3

At the scheduled pre-trial on October 23, 2003, petitioner failed to appear, prompting the trial
court to issue a warrant for his arrest, which warrant was, however, later recalled on discovery
that neither petitioner nor his counsel was notified of said schedule. Pre-trial was again reset to
January 21, 2004.4

Before the scheduled pre-trial on January 21, 2004 or on November 3, 2003, petitioner filed a
Motion to Dismiss5 the Information on the ground of violation of his right to a speedy trial under
Republic Act No. 84936 or the Speedy Trial Act of 1998 and Supreme Court Circular (SCC) No.
38-98.7 He argued that "considering that [he] was not - without any fault on his part - brought to
trial within 80 days from the date he was arraigned, this case should be dismissed pursuant to
Rule 119, Section 98 in relation to Rule 119, Section 6 of the Rules."9

The trial court, through pairing Judge Danilo A. Buemio (respondent judge), denied petitioner’s
Motion to Dismiss by Order10 of December 5, 2003, holding that petitioner played a big part in
the delay of the case, and that technical rules of procedure were meant to secure, not override,
substantial justice.

Petitioner’s Motion for Reconsideration of the December 5, 2003 Order was denied by Order11
of March 3, 2004 after respondent judge noted that during petitioner’s arraignment on February
12, 2003, he interposed no objection to the setting of the pre-trial to May 28, 2003. Besides,
respondent judge held, strict compliance with the Speedy Trial Act was improbable, given the
volume of cases being filed with the MeTC. Additionally respondent judge held that the term
"speedy trial" as applied in criminal cases is a relative term such that the trial and disposition of
cases depended on several factors including the availability of counsel, witnesses and
prosecutor, and weather conditions.
Petitioner challenged respondent judge’s orders via certiorari and prohibition before the
Regional Trial Court (RTC) of Manila, alleging that not only was he (petitioner) not brought to
trial within 80 days from the date of his arraignment as required under Section 6, Rule 119, but
the prosecution had failed to establish the existence of any of the "time exclusions" provided
under Section 312 of the same Rule to excuse its failure to bring him to trial within the 80-day
period.

By Decision13 of January 31, 2006, the RTC denied the petition, holding that Section 9 of Rule
119 of the Rules of Court does not call for the automatic dismissal of a case just because trial
has not commenced within 80 days from arraignment; that the proceedings before the MeTC
were not attended by vexatious, capricious and oppressive delays; and that the concept of a
speedy trial is not a mere question of numbers that could be computed in terms of years,
months or days but is understood according to the peculiar circumstances of each case, citing
SPO1 Sumbang, Jr. v. Gen. Court Martial PRO-Region 6.14

The RTC further held that in "determining whether petitioner’s right to speedy trial was
violated,"15 the circumstances that respondent judge was the pairing judge of Br. 22 of the
MeTC who "may be assumed also [to] preside over his own regular court and devotes limited
time to his pairing court" and that first level courts in Manila have an excessive load of cases
should also be taken into consideration.

His motion for reconsideration having been denied by the RTC,16 petitioner lodged the present
petition for review which, in the main, faults the RTC

. . . IN AFFIRMING THE MTC-MANILA JUDGE’S RULING THAT COMPLIANCE WITH RULE

119, SECTION 9 OF THE RULES IS NOT MANDATORY. THE RIGHT OF AN ACCUSED TO A
SPEEDY TRIAL IS A SUBSTANTIVE RIGHT THAT CANNOT BE DISREGARDED.

II

. . . IN AFFIRMING THE MTC-MANILA JUDGE’S RULING THAT THE ENUMERATION OF

ALLOWABLE TIME EXCLUSIONS UNDER RULE 119, SECTION 3 IS NOT EXCLUSIVE, AND
THAT THE FAILURE TO BRING PETITIONER TO TRIAL WITHIN THE PERIOD PROVIDED
UNDER RULE 119, SECTION 6 WAS JUSTIFIED.

x x x x,17

errors which raise a question of law.

Petitioner argues that his right to speedy trial is a substantive right and that, contrary to the RTC
ruling, Section 9 of Rule 119 is mandatory in character, having been taken from SCC No. 38-98,
strict compliance with which is urged to remove any attempt on the part of judges to exercise
discretion with respect to the time frame for conducting the trial of an accused; that the last
paragraph of said Section 9 clearly indicates that it is the right of an accused to move for
dismissal of the Information should the prosecution fail to prove the existence of the time
exclusions under Section 3 of Rule 119; and that the enumeration of the allowable time
exclusions under Section 3 is exclusive, hence, the RTC erred in considering the excessive
caseload of respondent judge, as a mere pairing judge, to be an allowable time exclusion under
the Rules.

In its Comment,18 the People, through the Office of the Solicitor General (OSG), counters that
"speed alone is not the chief objective of a trial" such that mere assertion of a violation of the
right to speedy trial does not necessarily result in the automatic dismissal of an Information; that
the time exclusions referred to in paragraphs (a) to (f) of Section 3, Rule 119 are not exclusive
and admit of other exceptions; that petitioner himself contributed to the delay in the proceedings
when he filed a frivolous motion to suspend proceedings and failed to appear during the
scheduled pre-trial; and that the RTC statement about respondent judge being a mere pairing
judge was not an apology for the court’s congested dockets but a mere statement of fact as to
the impossibility of setting the case for pre-trial at an earlier date.

Furthermore, the OSG asserts that respondent judge’s denial of petitioner’s motion to dismiss
was in order as he correctly applied the principles of relativity and flexibility in determining
whether petitioner’s right to speedy trial had been violated.19

Respondents-private complainants, on the other hand, maintain in their Comment20 that

several Supreme Court decisions21 dealing with the issue of the constitutional guaranty of a
speedy trial, the Speedy Trial Act of 1998, and SCC No. 38-98 have held that the right is
deemed violated only when the proceedings are attended by vexatious, capricious and
oppressive delays, which did not obtain in the present case, petitioner himself having been
instrumental in the delay in the prosecution of the case.

The petition does not impress.

Petitioner draws attention to the time gap of 105 days from his arraignment on February 12,
2003 up to the first pre-trial setting on May 28, 2003, and another gap of 148 days from the
latter date up to the second pre-trial setting on October 23, 2003 or for a total of 253 days - a
clear contravention, according to petitioner, of the 80-day time limit from arraignment to trial.

It bears noting, however, that on his arraignment on February 12, 2003, petitioner interposed no
objection to the setting of the pre-trial to May 28, 2003 which was, as earlier stated, later
declared a non-working day. Inarguably, the cancellation of the scheduled pre-trial on that date
was beyond the control of the trial court.1avvphi1
Petitioner argues, however, that the lapse of 253 days (from arraignment to October 23, 2003)
was not justified by any of the excusable delays as embodied in the time exclusions22 specified
under Section 3 of Rule 119. The argument is unavailing.

In Solar Team Entertainment, Inc. v. Judge How,23the Court stressed that the exceptions
consisting of the time exclusions provided in the Speedy Trial Act of 1998 reflect the
fundamentally recognized principle that "speedy trial" is a relative term and necessarily involves
a degree of flexibility. This was reiterated in People v. Hernandez,24 viz:

The right of the accused to a speedy trial is guaranteed under Sections 14(2) and 16, Article III
of the 1987 Constitution. In 1998, Congress enacted R.A. No. 8493, otherwise known as the
"Speedy Trial Act of 1998." The law provided for time limits in order "to ensure a speedy trial of
all criminal cases before the Sandiganbayan, [RTC], Metropolitan Trial Court, Municipal Trial
Court, and Municipal Circuit Trial Court." On August 11, 1998, the Supreme Court issued
Circular No. 38-98, the Rules Implementing R.A. No. 8493. The provisions of said circular were
adopted in the 2000 Revised Rules of Criminal Procedure. As to the time limit within which trial
must commence after arraignment, the 2000 Revised Rules of Criminal Procedure states:

Sec. 6, Rule 119. Extended time limit.-- Notwithstanding the provisions of section 1(g), Rule 116
and the preceding section 1, for the first twelve-calendar-month period following its effectivity on
September 15, 1998, the time limit with respect to the period from arraignment to trial imposed
by said provision shall be one hundred eighty (180) days. For the second twelve-month period,
the time limit shall be one hundred twenty (120) days, and for the third twelve-month period, the
time limit shall be eighty (80) days.

R.A. No. 8493 and its implementing rules and the Revised Rules of Criminal Procedure
enumerate certain reasonable delays as exclusions in the computation of the prescribed time
limits. They also provide that "no provision of law on speedy trial and no rule implementing the
same shall be interpreted as a bar to any charge of denial of speedy trial as provided by Article
III, Section 14(2), of the 1987 Constitution." Thus, in spite of the prescribed time limits,
jurisprudence continues to adopt the view that the concept of "speedy trial" is a relative term and
must necessarily be a flexible concept. In Corpuz v. Sandiganbayan, we held:

The right of the accused to a speedy trial and to a speedy disposition of the case against him
was designed to prevent the oppression of the citizen by holding criminal prosecution
suspended over him for an indefinite time, and to prevent delays in the administration of justice
by mandating the courts to proceed with reasonable dispatch in the trial of criminal cases. Such
right to a speedy trial and a speedy disposition of a case is violated only when the proceeding is
attended by vexatious, capricious and oppressive delays. x x x

While justice is administered with dispatch, the essential ingredient is orderly, expeditious and
not mere speed. It cannot be definitely said how long is too long in a system where justice is
supposed to be swift, but deliberate. It is consistent with delays and depends upon
circumstances. It secures rights to the accused, but it does not preclude the rights of public
justice. Also, it must be borne in mind that the rights given to the accused by the Constitution
and the Rules of Court are shields, not weapons; hence, courts are to give meaning to that
intent.

A balancing test of applying societal interests and the rights of the accused necessarily compels
the court to approach speedy trial cases on an ad hoc basis.

In determining whether the accused has been deprived of his right to a speedy disposition of the
case and to a speedy trial, four factors must be considered: (a) length of delay; (b) the reason
for the delay; (c) the defendant’s assertion of his right; and (d) prejudice to the defendant.
(citations omitted) (underscoring supplied)

The time limits set by the Speedy Trial Act of 1998 do not thus preclude justifiable
postponements and delays when so warranted by the situation.25 To the Court, the reasons for
the postponements and delays attendant to the present case reflected above are not
unreasonable. While the records indicate that neither petitioner nor his counsel was notified of
the resetting of the pre-trial to October 23, 2003, the same appears to have been occasioned by
oversight or simple negligence which, standing alone, does not prove fatal to the prosecution’s
case. The faux pas was acknowledged and corrected when the MeTC recalled the arrest
warrant it had issued against petitioner under the mistaken belief that petitioner had been duly
notified of the October 23, 2003 pre-trial setting.26

Reiterating the Court’s pronouncement in Solar Team Entertainment, Inc.27 that "speedy trial" is
a relative and flexible term, Lumanlaw v. Peralta, Jr.28summons the courts to maintain a
delicate balance between the demands of due process and the strictures of speedy trial on the
one hand, and the right of the State to prosecute crimes and rid society of criminals on the
other.

Applying the balancing test for determining whether an accused has been denied his
constitutional right to a speedy trial, or a speedy disposition of his case, taking into account
several factors such as the length and reason of the delay, the accused’s assertion or
non-assertion of his right, and the prejudice to the accused resulting from the delay,29the Court
does not find petitioner to have been unduly and excessively prejudiced by the "delay" in the
proceedings, especially given that he had posted bail.

WHEREFORE, the petition is DENIED.

Costs against Petitioner.

SO ORDERED.