Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No.

158763 March 31, 2006

JOSE C. MIRANDA, ALBERTO P. DALMACIO, and ROMEO B. OCON, Petitioners, vs. VIRGILIO M. TULIAO, Respondent. DECISION CHICO-NAZARIO, J.: This is a petition for review on certiorari under Rule 45 of the Rules of Court, assailing the 18 December 2002 Decision 1 of the Court of Appeals in CA-G.R. SP No. 67770 and its 12 June 2003 Resolution denying petitioners Motion for Reconsideration. The dispositive portion of the assailed decision reads as follows: WHEREFORE, finding public respondent Judge Anastacio D. Anghad to have acted with grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the assailed Orders, the instant petition for certiorari, mandamus and prohibition is hereby GRANTED and GIVEN DUE COURSE, and it is hereby ordered: 1. The assailed Joint Order dated August 17, 2001, Order dated September 21, 2001, Joint Order dated October 16, 2001 and Joint Order dated November 14, 2001 dismissing the two (2) Informations for Murder, all issued by public respondent Judge Anastacio D. Anghad in Criminal Cases Nos. 36-3523 and 36-3524 are hereby REVERSED and SET ASIDE for having been issued with grave abuse of discretion amounting to lack or excess of jurisdiction, and another entered UPHOLDING, AFFIRMING[,] and REINSTATING the Order dated June 25, 2001 and Joint Order dated July 6, 2001 issued by the then acting Presiding Judge Wilfredo Tumaliuan; 2. Criminal Cases Nos. 36-3523 and 36-3524 are hereby ordered REINSTATED in the docket of active criminal cases of Branch 36 of the Regional Trial Court of Santiago City, Isabela; and 3. Public respondent Judge Anastacio D. Anghad is DIRECTED to ISSUE forthwith Warrants of Arrest for the apprehension of private respondents Jose "Pempe" Miranda, SPO3 Alberto P. Dalmacio, PO3 Romeo B. Ocon and accused Rodel T. Maderal in said Criminal Cases Nos. 36-3523 and 36-3524. 2 The factual and procedural antecedents of the case are as follows:

On 8 March 1996, two burnt cadavers were discovered in Purok Nibulan, Ramon, Isabela, which were later identified as the dead bodies of Vicente Bauzon and Elizer Tuliao, son of private respondent Virgilio Tuliao who is now under the witness protection program. Two informations for murder were filed against SPO1 Wilfredo Leao, SPO1 Ferdinand Marzan, SPO1 Ruben B. Agustin, SPO2 Alexander Micu, SPO2 Rodel Maderal, and SPO4 Emilio Ramirez in the Regional Trial Court (RTC) of Santiago City. The venue was later transferred to Manila. On 22 April 1999, the RTC of Manila convicted all of the accused and sentenced them to two counts of reclusion perpetua except SPO2 Maderal who was yet to be arraigned at that time, being at large. The case was appealed to this Court on automatic review where we, on 9 October 2001, acquitted the accused therein on the ground of reasonable doubt. Sometime in September 1999, SPO2 Maderal was arrested. On 27 April 2001, he executed a sworn confession and identified petitioners Jose C. Miranda, PO3 Romeo B. Ocon, and SPO3 Alberto P. Dalmacio, a certain Boyet dela Cruz and Amado Doe, as the persons responsible for the deaths of Vicente Bauzon and Elizer Tuliao. Respondent Tuliao filed a criminal complaint for murder against petitioners, Boyet dela Cruz, and Amado Doe, and submitted the sworn confession of SPO2 Maderal. On 25 June 2001, Acting Presiding Judge Wilfredo Tumaliuan issued warrants of arrest against petitioners and SPO2 Maderal. On 29 June 2001, petitioners filed an urgent motion to complete preliminary investigation, to reinvestigate, and to recall and/or quash the warrants of arrest. In the hearing of the urgent motion on 6 July 2001, Judge Tumaliuan noted the absence of petitioners and issued a Joint Order denying said urgent motion on the ground that, since the court did not acquire jurisdiction over their persons, the motion cannot be properly heard by the court. In the meantime, petitioners appealed the resolution of State Prosecutor Leo T. Reyes to the Department of Justice. On 17 August 2001, the new Presiding Judge Anastacio D. Anghad took over the case and issued a Joint Order reversing the Joint Order of Judge Tumaliuan. Consequently, he ordered the cancellation of the warrant of arrest issued against petitioner Miranda. He likewise applied this Order to petitioners Ocon and Dalmacio in an Order dated 21 September 2001. State Prosecutor Leo S. Reyes and respondent Tuliao moved for the reconsideration of the said Joint Order and prayed for the inhibition of Judge Anghad, but the motion for reconsideration was denied in a Joint Order dated 16 October 2001 and the prayer for inhibition was denied in a Joint Order dated 22 October 2001. On 25 October 2001, respondent Tuliao filed a petition for certiorari, mandamus and prohibition with this Court, with prayer for a Temporary Restraining Order, seeking to enjoin Judge Anghad from further proceeding with the case, and seeking to nullify the Orders and Joint Orders of

Judge Anghad dated 17 August 2001, 21 September 2001, 16 October 2001, and 22 October 2001. On 12 November 2001, this Court issued a Resolution resolving to grant the prayer for a temporary restraining order against Judge Anghad from further proceeding with the criminal cases. Shortly after the aforesaid resolution, Judge Anghad issued a Joint Order dated 14 November 2001 dismissing the two Informations for murder against petitioners. On 19 November 2001, this Court took note of respondents cash bond evidenced by O.R. No. 15924532 dated 15 November 2001, and issued the temporary restraining order while referring the petition to the Court of Appeals for adjudication on the merits. Respondent Tuliao filed with this Court a Motion to Cite Public Respondent in Contempt, alleging that Judge Anghad "deliberately and willfully committed contempt of court when he issued on 15 November 2001 the Order dated 14 November 2001 dismissing the informations for murder." On 21 November 2001, we referred said motion to the Court of Appeals in view of the previous referral to it of respondents petition for certiorari, prohibition and mandamus. On 18 December 2002, the Court of Appeals rendered the assailed decision granting the petition and ordering the reinstatement of the criminal cases in the RTC of Santiago City, as well as the issuance of warrants of arrest against petitioners and SPO2 Maderal. Petitioners moved for a reconsideration of this Decision, but the same was denied in a Resolution dated 12 June 2003. Hence, this petition. The facts of the case being undisputed, petitioners bring forth to this Court the following assignments of error: FIRST ASSIGNMENT OF ERROR With all due respect, the Honorable Court of Appeals gravely erred in reversing and setting aside the Joint Order of Judge Anastacio D. Anghad dated August 17, 2001, September 21, 2001, October 16, 2001 and November 14, 2001 issued in criminal cases numbered 36-3523 and 363524; and, erred in upholding, affirming and reinstating the Order dated July 6, 2001 issued by then Acting Presiding Judge Wilfredo Tumaliuan, on the alleged rule that an accused cannot seek any judicial relief if he does not submit his person to the jurisdiction of the court. SECOND ASSIGNMENT OF ERROR With all due respect, the Honorable Court of Appeals gravely erred in directing the reinstatement of Criminal Cases No. 36-3523 and 36-3524 in the docket of Active Criminal Cases of Branch 36 of the Regional Trial Court of Santiago City, Philippines, and in ordering the public respondent to re-issue the warrants of arrest against herein petitioners. THIRD ASSIGNMENT OF ERROR

Wit all due respect, the Honorable Court of Appeals committed a reversible error in ordering the reinstatement of Criminal Cases No. 36-3523 and No. 36-3524 in the docket of active criminal cases of Branch 36 of the regional trial court of Santiago City, Philippines, and in ordering the public respondent to issue warrants of arrest against herein petitioners, the order of dismissal issued therein having become final and executory. Adjudication of a motion to quash a warrant of arrest requires neither jurisdiction over the person of the accused, nor custody of law over the body of the accused. The first assignment of error brought forth by the petitioner deals with the Court of Appeals ruling that: [A]n accused cannot seek any judicial relief if he does not submit his person to the jurisdiction of the court. Jurisdiction over the person of the accused may be acquired either through compulsory process, such as warrant of arrest, or through his voluntary appearance, such as when he surrenders to the police or to the court. It is only when the court has already acquired jurisdiction over his person that an accused may invoke the processes of the court (Pete M. Pico vs. Alfonso V. Combing, Jr., A.M. No. RTJ-91-764, November 6, 1992). Thus, an accused must first be placed in the custody of the law before the court may validly act on his petition for judicial reliefs.3 Proceeding from this premise, the Court of Appeals ruled that petitioners Miranda, Ocon and Dalmacio cannot seek any judicial relief since they were not yet arrested or otherwise deprived of their liberty at the time they filed their "Urgent Motion to complete preliminary investigation; to reinvestigate; to recall and/or quash warrants of arrest."4 Petitioners counter the finding of the Court of Appeals by arguing that jurisdiction over the person of the accused is required only in applications for bail. Furthermore, petitioners argue, assuming that such jurisdiction over their person is required before the court can act on their motion to quash the warrant for their arrest, such jurisdiction over their person was already acquired by the court by their filing of the above Urgent Motion. In arguing that jurisdiction over the person is required only in the adjudication of applications for bail, petitioners quote Retired Court of Appeals Justice Oscar Herrera: Except in applications for bail, it is not necessary for the court to first acquire jurisdiction over the person of the accused to dismiss the case or grant other relief. The outright dismissal of the case even before the court acquires jurisdiction over the person of the accused is authorized under Section 6(a), Rule 112 of the Revised Rules of Criminal Procedure and the Revised Rules on Summary Procedure (Sec. 12a). In Allado vs. Diokno (232 SCRA 192), the case was dismissed on motion of the accused for lack of probable cause without the accused having been arrested. In Paul Roberts vs. Court of Appeals (254 SCRA 307), the Court was ordered to hold the issuance of a warrant of arrest in abeyance pending review by the Secretary of Justice. And in Lacson vs. Executive Secretary (301 SCRA 1025), the Court ordered the case transferred from the Sandiganbayan to the RTC which eventually ordered the dismissal of the case for lack of probable cause.6

In arguing, on the other hand, that jurisdiction over their person was already acquired by their filing of the above Urgent Motion, petitioners invoke our pronouncement, through Justice Florenz D. Regalado, in Santiago v. Vasquez7: The voluntary appearance of the accused, whereby the court acquires jurisdiction over his person, is accomplished either by his pleading to the merits (such as by filing a motion to quash or other pleadings requiring the exercise of the courts jurisdiction thereover, appearing for arraignment, entering trial) or by filing bail. On the matter of bail, since the same is intended to obtain the provisional liberty of the accused, as a rule the same cannot be posted before custody of the accused has been acquired by the judicial authorities either by his arrest or voluntary surrender. Our pronouncement in Santiago shows a distinction between custody of the law and jurisdiction over the person. Custody of the law is required before the court can act upon the application for bail, but is not required for the adjudication of other reliefs sought by the defendant where the mere application therefor constitutes a waiver of the defense of lack of jurisdiction over the person of the accused.8 Custody of the law is accomplished either by arrest or voluntary surrender,9 while jurisdiction over the person of the accused is acquired upon his arrest or voluntary appearance. 10 One can be under the custody of the law but not yet subject to the jurisdiction of the court over his person, such as when a person arrested by virtue of a warrant files a motion before arraignment to quash the warrant. On the other hand, one can be subject to the jurisdiction of the court over his person, and yet not be in the custody of the law, such as when an accused escapes custody after his trial has commenced. 11 Being in the custody of the law signifies restraint on the person, who is thereby deprived of his own will and liberty, binding him to become obedient to the will of the law. 12 Custody of the law is literally custody over the body of the accused. It includes, but is not limited to, detention. The statement in Pico v. Judge Combong, Jr., 13 cited by the Court of Appeals should not have been separated from the issue in that case, which is the application for admission to bail of someone not yet in the custody of the law. The entire paragraph of our pronouncement in Pico reads: A person applying for admission to bail must be in the custody of the law or otherwise deprived of his liberty. A person who has not submitted himself to the jurisdiction of the court has no right to invoke the processes of that court. Respondent Judge should have diligently ascertained the whereabouts of the applicant and that he indeed had jurisdiction over the body of the accused before considering the application for bail. 13 While we stand by our above pronouncement in Pico insofar as it concerns bail, we clarify that, as a general rule, one who seeks an affirmative relief is deemed to have submitted to the jurisdiction of the court. 15 As we held in the aforecited case of Santiago, seeking an affirmative relief in court, whether in civil or criminal proceedings, constitutes voluntary appearance. Pico deals with an application for bail, where there is the special requirement of the applicant being in the custody of the law. In Feliciano v. Pasicolan, 16 we held that "[t]he purpose of bail is to secure ones release and it would be incongruous to grant bail to one who is free. Thus, bail is

the security required and given for the release of a person who is in the custody of law." The rationale behind this special rule on bail is that it discourages and prevents resort to the former pernicious practice wherein the accused could just send another in his stead to post his bail, without recognizing the jurisdiction of the court by his personal appearance therein and compliance with the requirements therefor. 17 There is, however, an exception to the rule that filing pleadings seeking affirmative relief constitutes voluntary appearance, and the consequent submission of ones person to the jurisdiction of the court. This is in the case of pleadings whose prayer is precisely for the avoidance of the jurisdiction of the court, which only leads to a special appearance. These pleadings are: (1) in civil cases, motions to dismiss on the ground of lack of jurisdiction over the person of the defendant, whether or not other grounds for dismissal are included; 18 (2) in criminal cases, motions to quash a complaint on the ground of lack of jurisdiction over the person of the accused; and (3) motions to quash a warrant of arrest. The first two are consequences of the fact that failure to file them would constitute a waiver of the defense of lack of jurisdiction over the person. The third is a consequence of the fact that it is the very legality of the court process forcing the submission of the person of the accused that is the very issue in a motion to quash a warrant of arrest. To recapitulate what we have discussed so far, in criminal cases, jurisdiction over the person of the accused is deemed waived by the accused when he files any pleading seeking an affirmative relief, except in cases when he invokes the special jurisdiction of the court by impugning such jurisdiction over his person. Therefore, in narrow cases involving special appearances, an accused can invoke the processes of the court even though there is neither jurisdiction over the person nor custody of the law. However, if a person invoking the special jurisdiction of the court applies for bail, he must first submit himself to the custody of the law. In cases not involving the so-called special appearance, the general rule applies, i.e., the accused is deemed to have submitted himself to the jurisdiction of the court upon seeking affirmative relief. Notwithstanding this, there is no requirement for him to be in the custody of the law. The following cases best illustrate this point, where we granted various reliefs to accused who were not in the custody of the law, but were deemed to have placed their persons under the jurisdiction of the court. Note that none of these cases involve the application for bail, nor a motion to quash an information due to lack of jurisdiction over the person, nor a motion to quash a warrant of arrest: 1. In Allado v. Diokno, 19 on the prayer of the accused in a petition for certiorari on the ground of lack of probable cause, we issued a temporary restraining order enjoining PACC from enforcing the warrant of arrest and the respondent judge therein from further proceeding with the case and, instead, to elevate the records to us. 2. In Roberts, Jr. v. Court of Appeals,20 upon the accuseds Motion to Suspend Proceedings and to Hold in Abeyance Issuance of Warrants of Arrest on the ground that they filed a Petition for Review with the Department of Justice, we directed respondent judge therein to cease and desist from further proceeding with the criminal case and to defer the issuance of warrants of arrests against the accused.

3. In Lacson v. Executive Secretary,21 on the prayer of the accused in a petition for certiorari on the ground of lack of jurisdiction on the part of the Sandiganbayan, we directed the Sandiganbayan to transfer the criminal cases to the Regional Trial Court even before the issuance of the warrants of arrest. We hold that the circumstances forcing us to require custody of the law in applications for bail are not present in motions to quash the warrant of arrest. If we allow the granting of bail to persons not in the custody of the law, it is foreseeable that many persons who can afford the bail will remain at large, and could elude being held to answer for the commission of the offense if ever he is proven guilty. On the other hand, if we allow the quashal of warrants of arrest to persons not in the custody of the law, it would be very rare that a person not genuinely entitled to liberty would remain scot-free. This is because it is the same judge who issued the warrant of arrest who will decide whether or not he followed the Constitution in his determination of probable cause, and he can easily deny the motion to quash if he really did find probable cause after personally examining the records of the case. Moreover, pursuant to the presumption of regularity of official functions, the warrant continues in force and effect until it is quashed and therefore can still be enforced on any day and at any time of the day and night.22 Furthermore, the continued absence of the accused can be taken against him in the determination of probable cause, since flight is indicative of guilt. In fine, as much as it is incongruous to grant bail to one who is free, it is likewise incongruous to require one to surrender his freedom before asserting it. Human rights enjoy a higher preference in the hierarchy of rights than property rights,23 demanding that due process in the deprivation of liberty must come before its taking and not after. Quashing a warrant of arrest based on a subsequently filed petition for review with the Secretary of Justice and based on doubts engendered by the political climate constitutes grave abuse of discretion. We nevertheless find grave abuse of discretion in the assailed actions of Judge Anghad. Judge Anghad seemed a little too eager of dismissing the criminal cases against the petitioners. First, he quashed the standing warrant of arrest issued by his predecessor because of a subsequently filed appeal to the Secretary of Justice, and because of his doubts on the existence of probable cause due to the political climate in the city. Second, after the Secretary of Justice affirmed the prosecutors resolution, he dismissed the criminal cases on the basis of a decision of this Court in another case with different accused, doing so two days after this Court resolved to issue a temporary restraining order against further proceeding with the case. After Judge Tumaliuan issued warrants for the arrest of petitioners, petitioner Miranda appealed the assistant prosecutors resolution before the Secretary of Justice. Judge Anghad, shortly after assuming office, quashed the warrant of arrest on the basis of said appeal. According to Judge Anghad, "x x x prudence dictates (that) and because of comity, a deferment of the proceedings is but proper."24

Quashal on this basis is grave abuse of discretion. It is inconceivable to charge Judge Tumaliuan as lacking in prudence and oblivious to comity when he issued the warrants of arrest against petitioners just because the petitioners might, in the future, appeal the assistant prosecutors resolution to the Secretary of Justice. But even if the petition for review was filed before the issuance of the warrants of arrest, the fact remains that the pendency of a petition for the review of the prosecutors resolution is not a ground to quash the warrants of arrest. In Webb v. de Leon,25 we held that the petitioners therein cannot assail as premature the filing of the information in court against them on the ground that they still have the right to appeal the adverse resolution of the DOJ Panel to the Secretary of Justice. Similarly, the issuance of warrants of arrest against petitioners herein should not have been quashed as premature on the same ground. The other ground invoked by Judge Anghad for the quashal of the warrant of arrest is in order if true: violation of the Constitution. Hence, Judge Anghad asked and resolved the question: In these double murder cases, did this Court comply or adhere to the above-quoted constitutional proscription, which is Sec. 2, Article III Bill of Rights; to Sec. 6(a), Rule 112, Rules of Criminal Procedure and to the above-cited decisional cases? To this query or issue, after a deep perusal of the arguments raised, this Court, through [its] regular Presiding Judge, finds merit in the contention of herein accused-movant, Jose "Pempe" Miranda.26 Judge Anghad is referring to the following provision of the Constitution as having been violated by Judge Tumaliuan: Sec. 2. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.27 However, after a careful scrutiny of the records of the case, including the supporting evidence to the resolution of the prosecutor in his determination of probable cause, we find that Judge Anghad gravely abused his discretion. According to petitioners: In this case, the nullity of the order of Judge Tumaliuan, for the arrest of the petitioners is apparent from the face of the order itself, which clearly stated that the determination of probable cause was based on the certification, under oath, of the fiscal and not on a separate determination personally made by the Judge. No presumption of regularity could be drawn from the order since it expressly and clearly showed that it was based only on the fiscals certification.28 Petitioners claim is untrue. Judge Tumaliuans Joint Order contains no such indication that he relied solely on the prosecutors certification. The Joint Order even indicated the contrary:

Upon receipt of the information and resolution of the prosecutor, the Court proceeded to determine the existence of a probable cause by personally evaluating the records x x x.[29] The records of the case show that the prosecutors certification was accompanied by supporting documents, following the requirement under Lim, Sr. v. Felix30 and People v. Inting.31 The supporting documents are the following: 1. Resolution dated 21 June 2001 of State Prosecutor Leo S. Reyes; 2. Affidavit dated 22 May 2001 of Modesto Gutierrez; 3. Affidavit dated 19 May 2001 of Romeo B. Ocon; 4. Joint Counter Affidavit dated 23 May 2001 of Mayor Jose C. Miranda and Reynaldo de la Cruz; 5. Affidavit dated 19 May 2001 of Alberto Dalmacio; 6. Decision dated 22 April 1999 of the Regional Trial Court of Manila, Branch 41 in Criminal Case No. 97-160355; 7. Sworn statement dated 27 April 2001 of Rodel Maderal; 8. Information dated 22 June 2001; 9. Affidavit-complaint of Virgilio Tuliao; and 10. Medico-legal Reports of the cadavers of Elezer Tuliao and Vicente Buazon. Hence, procedurally, we can conclude that there was no violation on the part of Judge Tumaliuan of Article III, Section 2, of the Constitution. Judge Anghad, however, focused on the substantive part of said section, i.e., the existence of probable cause. In failing to find probable cause, Judge Anghad ruled that the confession of SPO2 Maderal is incredible for the following reasons: (1) it was given after almost two years in the custody of the National Bureau of Investigation; (2) it was given by someone who rendered himself untrustworthy for being a fugitive for five years; (3) it was given in exchange for an obvious reward of discharge from the information; and (4) it was given during the election period amidst a "politically charged scenario where "Santiago City voters were pitted against each other along the lines of the Miranda camp on one side and former City Mayor Amelita S. Navarro, and allegedly that of DENR Secretary Heherson Alvarez on the other."32 We painstakingly went through the records of the case and found no reason to disturb the findings of probable cause of Judge Tumaliuan. It is important to note that an exhaustive debate on the credibility of a witness is not within the province of the determination of probable cause. As we held in Webb33:

A finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been committed and was committed by the suspects. Probable cause need not be based on clear and convincing evidence of guilt, neither on evidence establishing guilt beyond reasonable doubt and definitely, not on evidence establishing absolute certainty of guilt. As well put in Brinegar v. United States, while probable cause demands more than "bare suspicion," it requires "less than evidence which would justify x x x conviction." A finding of probable cause merely binds over the suspect to stand trial. It is not a pronouncement of guilt. x x x Probable cause merely implies probability of guilt and should be determined in a summary manner. Preliminary investigation is not a part of trial x x x. Dismissing a criminal case on the basis of a decision of this Court in another case with different accused constitutes grave abuse of discretion. Judge Anghad had quashed the warrant of arrest on the ground, among other things, that there was a petition for review of the assistant prosecutors resolution before the Secretary of Justice. However, after the Secretary of Justice affirmed the prosecutors resolution, Judge Anghad summarily dismissed the two criminal cases against the petitioners on the basis of the following explanation: Rodel Maderal was one of the accused in People vs. Wilfredo Leano, et al., RTC, Branch 41, Manila, and based from his sworn statements, he pinpointed to Mr. Miranda the mastermind and with him and the other police officers as the direct perpetrators, the October 9, 2001 Decision of the Supreme Court absolving the five cops of murder, certainly makes his sworn Statements a "narration of falsehood and lies" and that because of the decision acquitting said officers "who were likewise falsely linked by said Rodel Maderal in his April 27, 2001 statements, it is now beyond doubt that Rodel Maderal made untruthful, fabricated and perjured statements and therefore the same is without probable value." This Court agrees with the defenses views. Indeed, of what use is Maderals statements when the Supreme Court rejected the prosecutions evidence presented and adduced in Criminal Case No. 97-160355. Rodel Maderal is supposed to turn state witness in these two (2) cases but with the Supreme Court decision adverted to, the probative value of his statements is practically nil. xxxx This Court finds merit to the manifestation of the accused Miranda dated October 18, 2001, praying for the summary dismissal of the two (2) murder charges in view of the latest decision of the Supreme Court in People of the Philippines vs. Wilfredo Leao, et al., G.R. No. 13886, acquitting the accused therein and in effect disregarding all the evidence presented by the prosecution in that case. Accordingly, the two (2) informations [for] murder filed against Jose Miranda are ordered dismissed.34 This is a clear case of abuse of discretion. Judge Anghad had no right to twist our decision and interpret it to the discredit of SPO2 Maderal, who was still at large when the evidence of the prosecution in the Leao case was presented. A decision, even of this Court, acquitting the accused therein of a crime cannot be the basis of the dismissal of criminal case against different

accused for the same crime. The blunder of Judge Anghad is even more pronounced by the fact that our decision in Leao was based on reasonable doubt. We never ruled in Leao that the crime did not happen; we just found that there was reasonable doubt as to the guilt of the accused therein, since the prosecution in that case relied on circumstantial evidence, which interestingly is not even the situation in the criminal cases of the petitioners in the case at bar as there is here an eyewitness: Rodel Maderal. The accused in Leao furthermore had no motive to kill respondent Tuliaos son, whereas petitioners herein had been implicated in the testimony of respondent Tuliao before the Senate Blue Ribbon Committee. It is preposterous to conclude that because of our finding of reasonable doubt in Leao, "it is now beyond doubt that Rodel Maderal made untruthful, fabricated and perjured statements and therefore the same is without probable value."35 On the contrary, if we are to permit the use of our decision in Leao, an acquittal on the ground of reasonable doubt actually points to the probability of the prosecutions version of the facts therein. Such probability of guilt certainly meets the criteria of probable cause. We cannot let unnoticed, too, Judge Anghads dismissal of the informations two days after we resolved to issue, upon the filing of a bond, a temporary restraining order prohibiting him from further proceeding with the case. The bond was filed the day after the informations were dismissed. While the dismissal of the case was able to beat the effectivity date of the temporary restraining order, such abrupt dismissal of the informations (days after this Courts resolve to issue a TRO against Judge Anghad) creates wild suspicions about the motives of Judge Anghad. Nullification of a proceeding necessarily carries with it the reinstatement of the orders set aside by the nullified proceeding. In their second assignment of error, petitioners claim that the Court of Appeals did not recall or reinstate the warrants of arrest issued by Judge Tumaliuan, but instead directed Judge Anghad to issue apparently new warrants of arrest.36 According to the petitioners, it was an error for the Court of Appeals to have done so, without a personal determination of probable cause. We disagree. Whether the Court of Appeals ordered the issuance of new warrants of arrest or merely ordered the reinstatement of the warrants of arrest issued by Judge Tumaliuan is merely a matter of scrupulous semantics, the slight inaccuracy whereof should not be allowed to affect the dispositions on the merits, especially in this case where the other dispositions of the Court of Appeals point to the other direction. Firstly, the Court of Appeals had reinstated the 25 June 2001 Order of Judge Tumaliuan,37 which issued the warrants of arrest. Secondly, the Court of Appeals likewise declared the proceedings conducted by Judge Anghad void. Certainly, the declaration of nullity of proceedings should be deemed to carry with it the reinstatement of the orders set aside by the nullified proceedings. Judge Anghads order quashing the warrants of arrest had been nullified; therefore those warrants of arrest are henceforth deemed unquashed. Even if, however, the Court of Appeals had directed the issuance of new warrants of arrest based on a determination of probable cause, it would have been legally permissible for them to do so. The records of the preliminary investigation had been available to the Court of Appeals, and are also available to this Court, allowing both the Court of Appeals and this Court to personally

examine the records of the case and not merely rely on the certification of the prosecutor. As we have ruled in Allado v. Diokno and Roberts v. Court of Appeals, the determination of probable cause does not rest on a subjective criteria. As we had resolved in those cases to overrule the finding of probable cause of the judges therein on the ground of grave abuse of discretion, in the same vein, we can also overrule the decision of a judge reversing a finding of probable cause, also on the ground of grave abuse of discretion. There is no double jeopardy in the reinstatement of a criminal case dismissed before arraignment In their third assignment of error, petitioners claim that the Court of Appeals committed a reversible error in ordering the reinstatement of Criminal Cases No. 36-3523 and No. 36-3524, alleging that the order of dismissal issued therein had become final and executory. According to petitioners: It is also worthy to point out at this juncture that the Joint Order of Judge Anghad dated November 14, 2001 is NOT ONE of those Orders which were assailed in the private respondent Tuliaos Petition for Certiorari, Mandamus and Prohibition filed by the private respondent before the Court of Appeals. As carefully enumerated in the first page of the assailed Decision, only the following Orders issued by Judge Anghad were questioned by private respondent, to wit: 1.) Joint Order dated August 17, 2001; 2.) Order dated September 21, 2001; 3.) Joint Order dated October 16, 2001; and 4.) Joint Order dated October 22, 2001. Obviously, the Joint Order dated November 14, 2001 of Judge Anghad, which ultimately dismissed Criminal Cases Nos. 36-3523 AND 36-3524 is NOT included in the list of the assailed Order/Joint Orders. Hence, the Court of Appeals should not have passed upon the validity or nullity of the Joint Order of November 14, 2001.38 Petitioners must have forgotten that respondent Tuliaos Petition for Certiorari, Prohibition and Mandamus was filed not with the Court of Appeals, but with this Court. The Court of Appeals decided the case because we referred the same to them in our 19 November 2001 Resolution. Such petition was filed on 25 October 2001, around three weeks before the 14 November 2001 Order. Upon receipt of the 14 November 2001 Order, however, respondent Tuliao lost no time in filing with this Court a Motion to Cite Public Respondent in Contempt, alleging that Judge Anghad "deliberately and willfully committed contempt of court when he issued on 15 November 2001 the Order dated 14 November 2001 dismissing the informations for murder." On 21 November 2001, we referred said motion to the Court of Appeals, in view of the previous referral of respondent Tuliaos petition for certiorari, prohibition and mandamus. Our referral to the Court of Appeals of the Motion to Cite Public Repondent in Contempt places the 14 November 2001 Order within the issues of the case decided by the Court of Appeals. In

claiming that Judge Anghad committed contempt of this Court in issuing the 14 November 2001 Order, respondent Tuliao had ascribed to Judge Anghad an act much more serious than grave abuse of discretion. Respondent Tuliao claims that Judge Anghad issued the 14 November 2001 Order on 15 November 2001, antedating it so as to avoid the effects of our 12 November 2001 Resolution. In said 12 November 2001 Resolution, we resolved to issue a temporary restraining order enjoining Judge Anghad from further proceeding with the criminal cases upon the respondent Tuliaos filing of a bond in the amount of P20,000.00. Respondent Tuliao had filed the bond on 15 November 2005. While we cannot immediately pronounce Judge Anghad in contempt, seeing as disobedience to lawful orders of a court and abuse of court processes are cases of indirect contempt which require the granting of opportunity to be heard on the part of respondent,39 the prayer to cite public respondent in contempt and for other reliefs just and equitable under the premises should be construed to include a prayer for the nullification of said 14 November 2001 Order. In any case, the reinstatement of a criminal case dismissed before arraignment does not constitute double jeopardy. Double jeopardy cannot be invoked where the accused has not been arraigned and it was upon his express motion that the case was dismissed.40 As to respondent Tuliaos prayer (in both the original petition for certiorari as well as in his motion to cite for contempt) to disqualify Judge Anghad from further proceeding with the case, we hold that the number of instances of abuse of discretion in this case are enough to convince us of an apparent bias on the part of Judge Anghad. We further resolve to follow the case of People v. SPO1 Leao,41 by transferring the venue of Criminal Cases No. 36-3523 and No. 36-3524 to the City of Manila, pursuant to Article VIII, Section 4, of the Constitution. WHEREFORE, the petition is DENIED. The Decision dated 18 December 2002 and the Resolution dated 12 June 2003 of the Court of Appeals are hereby AFFIRMED, with the modification that Criminal Cases No. 36-3523 and No. 36-3524 be transferred to and raffled in the Regional Trial Court of the City of Manila. In this connection, 1) Let a copy of this decision be furnished the Executive Judge of the RTC of the City of Santiago, Isabela, who is directed to effect the transfer of the cases within ten (10) days after receipt hereof; 2) The Executive Judge of the RTC of the City of Santiago, Isabela, is likewise directed to report to this Court compliance hereto within ten (10) days from transfer of these cases; 3) The Executive Judge of the City of Manila shall proceed to raffle the criminal cases within ten (10) days from the transfer; 4) The Executive Judge of the City of Manila is likewise directed to report to this Court compliance with the order to raffle within ten (10) days from said compliance; and

5) The RTC Judge to whom the criminal cases are raffled is directed to act on said cases with reasonable dispatch. 6) Finally, Judge Anastacio D. Anghad is directed to issue forthwith warrants of arrest for the apprehension of petitioners Jose C. Miranda, Alberto P. Dalmacio, Romeo B. Ocon, and accused Rodel T. Maderal, conformably with the decision of the Court of Appeals dated 18 December 2002. The Temporary Restraining Order issued by this Court dated 4 August 2003 is hereby LIFTED. Costs against Petitioners. SO ORDERED. MINITA V. CHICO-NAZARIO Associate Justice WE CONCUR: ARTEMIO V. PANGANIBAN Chief Justice Chairperson

Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. Nos. 111771-77 November 9, 1993 ANTONIO L. SANCHEZ, Petitioner, vs. The Honorable HARRIET O. DEMETRIOU (in her capacity as Presiding Judge of Regional Trial Court, NCR, Branch 70, Pasig), The Honorable FRANKLIN DRILON (in his capacity as Secretary of Justice), JOVENCITO R. ZUO, LEONARDO C. GUIYAB, CARLOS L. DE LEON, RAMONCITO C. MISON, REYNALDO J. LUGTU, and RODRIGO P. LORENZO, the last six respondents in their official capacities as members of the State Prosecutor's Office), Respondents. CRUZ, J.: There is probably no more notorious person in the country today than Mayor Antonio L. Sanchez of Calauan, Laguna, who stands accused of an unspeakable crime. On him, the verdict has already been rendered by many outraged persons who would immediately impose on him an

angry sentence. Yet, for all the prejudgments against him, he is under our Constitution presumed innocent as long as the contrary has not been proved. Like any other person accused of an offense, he is entitled to the full and vigilant protection of the Bill of Rights. Sanchez has brought this petition to challenge the order of the respondent judge denying his motion to quash the informations for rape with homicide filed against him and six other persons. We shall treat it as we would any other suit filed by any litigant hoping to obtain a just and impartial judgment from this Court. The pertinent facts are as follows: On July 28, 1993, the Presidential Anti-Crime Commission requested the filing of appropriate charges against several persons, including the petitioner, in connection with the rape-slay of Mary Eileen Sarmenta and the killing of Allan Gomez. Acting on this request, the Panel of State Prosecutors of the Department of Justice conducted a preliminary investigation on August 9, 1993. Petitioner Sanchez was not present but was represented by his counsel, Atty. Marciano Brion, Jr. On August 12, 1993, PNP Commander Rex Piad issued an "invitation" to the petitioner requesting him to appear for investigation at Camp Vicente Lim in Canlubang, Laguna. It was served on Sanchez in the morning of August 13,1993, and he was immediately taken to the said camp. At a confrontation that same day, Sanchez was positively identified by Aurelio Centeno, and SPO III Vivencio Malabanan, who both executed confessions implicating him as a principal in the rape-slay of Sarmenta and the killing of Gomez. The petitioner was then placed on "arrest status" and taken to the Department of Justice in Manila. The respondent prosecutors immediately conducted an inquest upon his arrival, with Atty. Salvador Panelo as his counsel. After the hearing, a warrant of arrest was served on Sanchez. This warrant was issued on August 13, 1993, by Judge Enrico A. Lanzanas of the Regional Trial Court of Manila, Branch 7, in connection with Criminal Cases Nos. 93-124634 to 93-124637 for violation of Section 8, in relation to Section 1, of R.A. No. 6713. Sanchez was forthwith taken to the CIS Detention Center, Camp Crame, where he remains confined. On August 16, 1993, the respondent prosecutors filed with the Regional Trial Court of Calamba, Laguna, seven informations charging Antonio L. Sanchez, Luis Corcolon, Rogelio Corcolon, Pepito Kawit, Baldwin Brion, Jr., George Medialdea and Zoilo Ama with the rape and killing of Mary Eileen Sarmenta. On August 26, 1993, Judge Eustaquio P. Sto. Domingo of that court issued a warrant for the arrest of all the accused, including the petitioner, in connection with the said crime.

The respondent Secretary of Justice subsequently expressed his apprehension that the trial of the said cases might result in a miscarriage of justice because of the tense and partisan atmosphere in Laguna in favor of the petitioner and the relationship of an employee, in the trial court with one of the accused. This Court thereupon ordered the transfer of the venue of the seven cases to Pasig, Metro Manila, where they were raffled to respondent Judge Harriet Demetriou. On September 10, 1993, the seven informations were amended to include the killing of Allan Gomez as an aggravating circumstance. On that same date, the petitioner filed a motion to quash the informations substantially on the grounds now raised in this petition. On September 13, 1993, after oral arguments, the respondent judge denied the motion. Sanchez then filed with this Court the instant petition for certiorari and prohibition with prayer for a temporary restraining order/writ of injunction. The petitioner argues that the seven informations filed against him should be quashed because: 1) he was denied the right to present evidence at the preliminary investigation; 2) only the Ombudsman had the competence to conduct the investigation; 3) his warrantless arrest is illegal and the court has therefore not acquired jurisdiction over him, 4) he is being charged with seven homicides arising from the death of only two persons; 5) the informations are discriminatory because they do not include Teofilo Alqueza and Edgardo Lavadia; and 6) as a public officer, he can be tried for the offense only by the Sandiganbayan. The respondents submitted a Comment on the petition, to which we required a Reply from the petitioner within a non-extendible period of five days. 1 The Reply was filed five days late. 2 The Court may consider his non-compliance an implied admission of the respondents' arguments or a loss of interest in prosecuting his petition, which is a ground for its dismissal. Nevertheless, we shall disregard this procedural lapse and proceed to discuss his petition on the basis of the arguments before us. The Preliminary Investigation. The records of the hearings held on August 9 and 13, 1993, belie the petitioner's contention that he was not accorded the right to present counter-affidavits. During the preliminary investigation on August 9, 1993, the petitioner's counsel, Atty. Marciano Brion, manifested that his client was waiving the presentation of a counter-affidavit, thus: Atty. Brion, Jr.: [W]e manifest that after reviewing them there is nothing to rebut or countermand all these statements as far as Mayor Sanchez is concerned, We are not going to submit any counter-affidavit. ACSP Zuo to Atty. Brion: xxx xxx xxx

Q. So far, there are no other statements. A. If there is none then, we will not submit any counter-affidavit because we believe there is nothing to rebut or countermand with all these statements. Q. So, you are waiving your submission of counter-affidavit? A. Yes, your honor, unless there are other witnesses who will come up soon. 3 Nonetheless, the head of the Panel of Prosecutors, respondent Jovencito Zuo, told Atty. Brion that he could still file a counter-affidavit up to August 27, 1993. No such counter-affidavit was filed. During the hearing on August 1'3, 1993, respondent Zuo furnished the petitioner's counsel, this time Atty. Salvador Panelo, with copies of the sworn statements of Centeno and Malabanan, and told him he could submit counter-affidavits on or before August 27, 1993. The following exchange ensued: ACSP Zuo: For the record, we are furnishing to you the sworn statement of witness Aurelio Centeno y Roxas and the sworn statement of SPO3 Vivencio Malabanan y Angeles. Do I understand from you that you are again waiving the submission of counter-affidavit? Atty. Panelo: Yes. ACSP Zuo: So, insofar as the respondent, Mayor Antonio Sanchez is concerned, this case is submitted for resolution. 4 On the other hand, there is no support for the petitioner's subsequent manifestation that his counsel, Atty. Brion, was not notified of the inquest held on August 13, 1993, and that he was not furnished with the affidavits sworn to on that date by Vivencio Malabanan and Aurelio Centeno, or with their supplemental affidavits dated August 15, 1993. Moreover, the abovequoted excerpt shows that the petitioner's counsel at the hearing held on August 13, 1993, was not Atty. Brion but Atty. Panelo.

The petitioner was present at that hearing and he never disowned Atty. Panelo as his counsel. During the entire proceedings, he remained quiet and let this counsel speak and argue on his behalf. It was only in his tardy Reply that he has suddenly bestirred himself and would now question his representation by this lawyer as unauthorized and inofficious. Section 3, Paragraph (d), Rule 112 of the Rules of Court, provides that if the respondent cannot be subpoenaed or, if subpoenaed, does not submit counter-affidavits, the investigating officer shall base his resolution on the evidence presented by the complainant. Just as the accused may renounce the right to be present at the preliminary investigation 5, so may he waive the right to present counter-affidavits or any other evidence in his defense. At any rate, it is settled that the absence of a preliminary investigation does not impair the validity of the information or otherwise render the same defective and neither does it affect the jurisdiction of the court over the case or constitute a ground for quashing the information. 6 If no preliminary investigation has been held, or if it is flawed, the trial court may, on motion of the accused, order an investigation or reinvestigation and hold the proceedings in the criminal case in abeyance. 7 In the case at bar, however, the respondent judge saw no reason or need for such a step. Finding no arbitrariness in her factual conclusions, we shall defer to her judgment. Jurisdiction of the Ombudsman Invoking the case of Deloso v. Domingo, 8 the petitioner submits that the proceedings conducted by the Department of Justice are null and void because it had no jurisdiction over the case. His claim is that it is the Office of the Ombudsman that is vested with the power to conduct the investigation of all cases involving public officers like him, as the municipal mayor of Calauan, Laguna. The Ombudsman is indeed empowered under Section 15, paragraph (1) of R.A. 6770 to investigate and prosecute, any illegal act or omission of any public official. However, as we held only two years ago in the case of Aguinaldo v. Domagas, 9 this authority "is not an exclusive authority but rather a shared or concurrent authority in. respect of the offense charged." Petitioners finally assert that the information and amended information filed in this case needed the approval of the Ombudsman. It is not disputed that the information and amended information here did not have the approval of the Ombudsman. However, we do not believe that such approval was necessary at all. In Deloso v. Domingo, 191 SCRA. 545 (1990), the Court held that the Ombudsman has authority to investigate charges of illegal or omissions on the part of any public official, i.e., any crime imputed to a public official. It must, however, be pointed out that the authority of the Ombudsman to investigate "any [illegal] act or omission of any public official" (191 SCRA at 550) is not an exclusive authority but rather a shared or concurrent authority in respect of the offense here charged, i.e., the crime of sedition. Thus, the non-involvement of the office of the Ombudsman in the present case does not have any adverse legal

consequence upon the authority the panel of prosecutors to file and prosecute the information or amended information. In fact, other investigatory agencies, of the government such as the Department of Justice, in connection with the charge of sedition, 10 and the Presidential Commission on Good Government, in ill-gotten wealth cases, 11 may conduct the investigation, The Arrest Was petitioner Sanchez arrested on August 13, 1993? "Arrest" is defined under Section 1, Rule 113 of the Rules of Court as the taking of a person into custody in order that he may be bound to answer for the commission of an offense. Under Section 2 of the same Rule, an arrest is effected by an actual restraint of the person to be arrested or by his voluntary submission to the custody of the person making the arrest. Application of actual force, manual touching of the body, physical restraint or a formal declaration of arrest is not, required. It is enough that there be an intent on the part of one of the parties to arrest the other and an intent onthe part of the other to submit, under the belief and impression that submission is necessary. 12 The petitioner was taken to Camp Vicente Lim, Canlubang, Laguna, by virtue of a letterinvitation issued by PNP Commander Rex Piad requesting him to appear at the said camp for investigation. In Babst v. National Intelligence Board 13 this Court declared: Be that as it may, it is not idle to note that ordinarily, an invitation to attend a hearing and answer some questions, which the person invited may heed or refuse at his pleasure, is not illegal or constitutionally objectionable. Under certain circumstances, however, such an invitation can easily assume a different appearance. Thus, where the invitation comes from a powerful group composed predominantly of ranking military officers issued at a time when the country has just emerged from martial rule and when the suspension of the privilege of the writ of habeas corpus has not entirely been lifted, and the designated interrogation site is a military camp, the same can be easily taken, not as a strictly voluntary invitation which it purports to be, but as an authoritative command which one can only defy at his peril. . . . (Emphasis supplied) In the case at bar, the invitation came from a high-ranking military official and the investigation of Sanchez was to be made at a military camp. Although in the guise of a request, it was obviously a command or an order of arrest that the petitioner could hardly he expected to defy. In fact, apparently cowed by the "invitation," he went without protest (and in informal clothes and slippers only) with the officers who had come to fetch him.

It may not be amiss to observe that under R.A. No. 7438, the requisites of a "custodial investigation" are applicable even to a person not formally arrested but merely "invited" for questioning. It should likewise be noted that at Camp Vicente Lim, the petitioner was placed on "arrest status" after he was pointed to by Centeno and Malabanan as the person who first raped Mary Eileen Sarmenta. Respondent Zuo himself acknowledged during the August 13, 1993 hearing that, on the basis of the sworn statements of the two state witnesses, petitioner had been "arrested." We agree with the petitioner that his arrest did not come under Section 5, Rule 113 of the Rules of Court, providing as follows: Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has in fact just been committed and he has personal knowledge of facts indicating that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escapes from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. It is not denied that the arresting officers were not present when the petitioner allegedly participated in the killing of Allan Gomez and the rape-slay of Mary Eileen Sarmenta. Neither did they have any personal knowledge that the petitioner was responsible therefor because the basis of the arrest was the sworn statements of Centeno and Malabanan. Moreover, as the rape and killing of Sarmenta allegedly took place on June 28-June 29, 1993, or forty-six days before the date of the arrest, it cannot be said that the offense had "in fact just been committed" when the petitioner was arrested. The original warrantless arrest of the petitioner was doubtless illegal. Nevertheless, the Regional Trial Court lawfully acquired jurisdiction over the person of the petitioner by virtue of the warrant of arrest it issued on August 26, 1993 against him and the other accused in connection with the rape-slay cases. It was belated, to be sure, but it was nonetheless legal. Even on the assumption that no warrant was issued at all, we find that the trial court still lawfully acquired jurisdiction over the person of the petitioner. The rule is that if the accused objects to the jurisdiction of the court over his person, he may move to quash the information, but only on that ground. If, as in this case, the accused raises other grounds in the motion to quash, he is deemed to have waived that objection and to have submitted his person to the jurisdiction of that court. 14

The Court notes that on August 13, 1993, after the petitioner was unlawfully arrested, Judge Lanzanas issued a warrant of arrest against Antonio L. Sanchez in connection with Criminal Cases Nos. 93-124634 to 93-124637 for violation of R.A No. 6713. 15 Pending the issuance of the warrant of arrest for the rape-slay cases, this first warrant served as the initial justification for his detention. The Court also adverts to its uniform ruling that the filing of charges, and the issuance of the corresponding warrant of arrest, against a person invalidly detained will cure the defect of that detention or at least deny him the right to be released because of such defect. * Applicable by analogy to the case at bar is Rule 102 Section 4 of the Rules of Court that: Sec, 4. When writ is not allowed or discharge authorized. - If it appears that the person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or judge or by virtue of a judgment or order of a court of record, and that the court or judge had jurisdiction to issue the process, render the judgment, or make the order, the writ shall not be allowed; or if the jurisdiction appears after the writ is allowed, the person shall not be discharged by reason of any informality or defect in the process, judgment, or order. Nor shall, anything in this rule be held to authorize the discharge of a person charged with or convicted of an offense in the Philippines or of a person suffering imprisonment under lawful judgment. In one case, 16 the petitioner, sued on habeas corpus on the ground that she had been arrested by virtue of a John Doe warrant. In their return, the respondents declared that a new warrant specifically naming her had been issued, thus validating her detention. While frowning at the tactics of the respondents, the Court said: The, case has, indeed, become moot and academic inasmuch as the new warrant of arrest complies with the requirements of the Constitution and the Rules of Court regarding the particular description of the person to be arrested. While the first warrant was unquestionably void, being a general warrant, release of the petitioner for that reason will be a futile act as it will be followed by her immediate re-arrest pursuant to the new and valid warrant, returning her to the same prison she will just have left. This Court will not participate in such a meaningless charade. The same doctrine has been consistently followed by the Court, 17 more recently in the Umil case. 18 The Informations The petitioner submits that the seven informations charging seven separate homicides are absurd because the two victims in these cases could not have died seven times. This argument was correctly refuted by the Solicitor General in this wise:

Thus, where there are two or more offenders who commit rape, the homicide committed on the occasion or by reason of each rape, must be deemed as a constituent of the special complex crime of rape with homicide. Therefore, there will be as many crimes of rape with homicide as there are rapes committed. In effect, the presence of homicide qualifies the crime of rape, thereby raising its penalty to the highest degree. Thus, homicide committed on the occasion or by reason of rape, loses its character as an independent offense, but assumes a new character, and functions like a qualifying circumstance. However,by fiction of law, it merged with rape to constitute an constituent element of a special complex crime of rape with homicide with a specific penalty which is in the highest degree, i.e. death (reduced to reclusion perpetua with the suspension of the application of the death penalty by the Constitution). It is clearly provided in Rule 110 of the Rules of Court that: Sec. 13. Duplicity of offense. A complaint or information must charge but one offense, except only in those cases in which existing laws prescribe a simple punishment for various offenses. Rape with homicide comes within the exception under R.A. 2632 and R.A. 4111, amending the Revised Penal Code. The petitioner and his six co-accused are not charged with only one rape committed by him in conspiracy with the other six. Each one of the seven accused is charged with having himself raped Sarmenta instead of simply helping Sanchez in committing only one rape. In other words, the allegation of the prosecution is that the girl was raped seven times, with each of the seven accused taking turns in abusing her with the assistance of the other six. Afterwards, their lust satisfied, all seven of them decided to kill and thus silence Sarmenta. Every one of the seven accused is being charged separately for actually raping Sarmenta and later killing her instead of merely assisting the petitioner in raping and then slaying her. The separate informations filed against each of them allege that each of the seven successive rapes is complexed by the subsequent slaying of Sarmenta and aggravated by the killing of Allan Gomez by her seven attackers. The separate rapes were committed in succession by the seven accused, culminating in the slaying of Sarmenta. It is of course absurd to suggest that Mary Eileen Sarmenta and Allan Gomez were killed seven times, but the informations do not make such a suggestion. It is the petitioner who does so and is thus hoist by his own petard. The Alleged Discrimination The charge of discrimination against the petitioner because of the non-inclusion of Teofilo Alqueza and Edgardo Lavadia in the informations must also be dismissed.

While the prosecuting officer is required by law to charge all those who in his opinion, appear to be guilty, he nevertheless cannot be compelled to include in the information a person against whom he believes no sufficient evidence of guilt exists. 19 The appreciation of the evidence involves the use of discretion on the part of the prosecutor, and we do not find in the case at bar a clear showing by the petitioner of a grave abuse of such discretion. 20 The decision of the prosecutor may be reversed or modified by the Secretary of Justice or in special cases by the President of the Philippines. 21 But even this Court cannot order the prosecution of a person against whom the prosecutor does not find sufficient evidence to support at least a prima facie case. The courts try and absolve or convict the accused but as a rule have no part in the initial decision to prosecute him. The possible exception is where there is an unmistakable showing of a grave abuse of discretion that will justify judicial intrusion into the precincts of the executive. But in such a case the proper remedy to call for such exception is a petition for mandamus, not certiorari or prohibition. 22 Moreover, before resorting to this relief, the party seeking the inclusion of another person as a co-accused in the same case must first avail itself of other adequate remedies such as the filing of a motion for such inclusion. 23 At any rate, it is a preposterous contention that because no charges have been filed against Alqueza and Lavadia, the charges against the petitioner and his co-accused should also be dropped. Jurisdiction of the Sandiganbayan The petitioner argued earlier that since most of the accused were incumbent public officials or employees at the time of the alleged commission of the crimes, the cases against them should come under the jurisdiction of the Sandiganbayan and not of the regular courts. This contention was withdrawn in his Reply but we shall discuss it just the same for the guidance of all those concerned. Section 4, paragraph (a) of P.D. No, 1606, as amended by P.D. No.1861, provides: Sec. 4. Jurisdiction. - The Sandiganbayan shall exercise: a) Exclusive original jurisdiction in all cases involving: (1) Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII of the Revised Penal Code: (2) Other offenses or felonies committed by public officers and employees in relation to their office, including those employed in government-owned or controlled corporations, whether simple or complexed with other crimes, where the penalty prescribed by law

is higher than prision correccional or imprisonment for six (6) years, or a fine of P6,000.00. . . . (Emphasis supplied) The crime of rape with homicide with which the petitioner stands charged obviously does not fall under paragraph (1), which deals with graft and corruption cases. Neither is it covered by paragraph (2) because it is not an offense committed in relation to the office of the petitioner. In Montilla v, Hilario, 24 this Court described the "offense committed in relation to the office" as follows: [T]he relation between the crime and the office contemplated by the Constitution is, in our opinion, direct and not accidental. To fall into the intent of the Constitution, the relation has to be such that, in the legal sense, the offense cannot exist without the office. In other words, the office must be a constituent element of the crime as defined in the statute, such as, for instance, the crimes defined and punished in Chapter Two to Six, Title Seven, of the Revised Penal Code. Public office is not of the essence of murder. The taking of human life is either murder or homicide whether done by a private citizen or public servant, and the penalty is the same except when the perpetrator. being a public functionary took advantage of his office, as alleged in this case, in which event the penalty is increased. But the use or abuse of office does not adhere to the crime as an element; and even as an aggravating circumstance, its materiality arises not from the allegations but on the proof, not from the fact that the criminals are public officials but from the manner of the commission of the crime There is no direct relation between the commission of the crime of rape with homicide and the petitioner's office as municipal mayor because public office is not an essential element of the crime charged. The offense can stand independently of the office. Moreover, it is not even alleged in the information that the commission of the crime charged was intimately connected with the performance of the petitioner's official functions to make it fall under the exception laid down in People v. Montejo. 25 In that case, a city mayor and several detectives were charged with murder for the death of a suspect as a result of a "third degree" investigation held at a police substation. The appearance of a senator as their counsel was questioned by the prosecution on the ground that he was inhibited by the Constitution from representing them because they were accused of an offense committed in relation to their office. The Court agreed. It held that even if their position was not an essential ingredient of the offense, there was nevertheless an intimate connection between the office and the offense, as alleged in the information, that brought it within the definition of an offense "committed in relation to the public office." As Chief Justice Concepcion said:

It is apparent from these allegations that, although public office is not an element of the crime of murder in abstract, as committed by the main respondents herein, according to the amended information, the offense therein charged is intimately connected with their respective offices and was perpetrated while they were in the performance, though improper or irregular, of their official functions. Indeed they had no personal motive to commit the crime and they would not have committed it had they not held their aforesaid offices. The co-defendants of respondent Leroy S. Brown, obeyed his instructions because he was their superior officer, as Mayor of Basilan City. (Emphasis supplied). We have read the informations in the case at bar and find no allegation therein that the crime of rape with homicide imputed to the petitioner was connected with the discharge of his functions as municipal mayor or that there is an "intimate connection" between the offense and his office. It follows that the said crime, being an ordinary offense, is triable by the regular courts and not the Sandiganbayan. Conclusion As above demonstrated, all of the grounds invoked by the petitioner are not supported by the facts and the applicable law and jurisprudence. They must, therefore, all be rejected. In consequence, the respondent judge, who has started the trial of the criminal cases against the petitioner and his co-accused, may proceed therewith without further hindrance. It remains to stress that the decision we make today is not a decision on the merits of the criminal cases being tried below. These will have to be decided by the respondent judge in accordance with the evidence that is still being received. At this time, there is yet no basis for judgment, only uninformed conjecture. The Court will caution against such irrelevant public speculations as they can be based only on imperfect knowledge if not officious ignorance. WHEREFORE, the petition is DISMISSED. The respondent judge is DIRECTED to continue with the trial of Criminal Cases Nos. 101141, 101142, 101143, 101144, 101145, 101146 and 101147 and to decide them with deliberate dispatch. SO ORDERED.

THIRD DIVISION

JUANITO CHAN y LIM, a.k.a. ZHANG ZHENTING,

G.R. No.

Petitioner,

147065
Present:

- versus YNARES-SANTIAGO, J., Chairperson, SECRETARY OF JUSTICE, PABLO C. FORMARAN III and PRESIDENTIAL ANTI-ORGANIZED CRIME TASK FORCE, represented by PO3 DANILO L. SUMPAY, Respondents. AUSTRIA-MARTINEZ, CHICO-NAZARIO, NACHURA, and REYES, JJ.

Promulgated:

March 14, 2008

x------------------------------------------------------------------------------------x

DECISION

NACHURA, J.:

This petition for review on certiorari under Rule 45 seeks to set aside the Resolution1[1] of the Court of Appeals (CA) dated September 21, 2000, which dismissed the petition for certiorari assailing the Resolution of the Secretary of the Department of Justice (DOJ) finding probable cause against the herein petitioner for violation of the Dangerous Drugs Act. The petitioner likewise assails the CA Resolution dated February 9, 2001 which denied his motion for reconsideration.

The case flows from the following antecedents:

On April 23, 1999, the Chief of the Presidential Anti-Organized Crime Task Force (PAOCTF), then Police Director Panfilo M. Lacson, referred to the State Prosecutor for appropriate action the evidence collected by the task force during a buy-bust operation against petitioner Juanito Chan, a Chinese citizen who was a resident of Binondo, Manila. The evidence consisted of

EXH A One (1) self-sealing transparent plastic bag containing white crystalline substance/granules suspected to be Methamphetamine Hydrochloride SHABU, weighing approximately one (1) kilogram with markings DLS 04/23/99 placed inside a box of HENNESSY V.S.O.P. COGNAC. EXH B Buy-bust money amounting to six thousand pesos (P6,000.00) in twelve (12) pieces of five hundred peso bill denomination placed at the top of each of the twelve (12) bundles of boodle money (pieces of paper cut in the same size and shape of a genuine money) placed inside a yellow paper bag with markings HAPPY BIRTHDAY. EXH C one (1) green Hyundai van with plate number ULK 815 used in transporting the confiscated SHABU.2[2]

The PAOCTF also submitted the following documents to the State Prosecutor: (1) the Joint Affidavit of Arrest executed by PO3 Danilo L. Sumpay, PO3 Rolly S. Ibaez and SPO1 Ronald C. Parreo, the police officers who conducted the buy-bust operation; (2) booking sheet and arrest report; (3) receipt for property seized; (4) request for laboratory examination; (5) result of laboratory examination; (6) request for medical/physical examination; (7) result of
2

medical/physical examination; (8) request for drug dependency test; (9) receipt for buy-bust money; and (10) photocopy of buy-bust money.

In their Joint Affidavit of Arrest,3[3] PO3 Danilo L. Sumpay, PO3 Rolly S. Ibaez and SPO1 Ronald C. Parreo narrated that, on April 22, 1999, at about 10:30 p.m., their Confidential Informant (CI) reported to them that a certain Juanito Chan was engaged in the sale of methamphetamine hydrochloride or shabu in different parts of Metro Manila, and that Chan offered him a handsome commission if he would find a buyer of shabu. According to them, the CI received a phone call from Chan later that evening, and the two made a deal for the sale of one kilogram of shabu worth P600,000.00 at the parking space in front of Fuji Mart Inc., along Timog Avenue, Quezon City between 5:30 and 7:30 a.m. the following day. They said that based on this information, a buy-bust operation was organized by the PAOCTF. Hence, on April 23, 1999, at 6:00 a.m., they apprehended Chan after he turned over to the poseur-buyer a small box containing one self-sealing transparent plastic bag of white crystalline substance in exchange for the 12 bundles of boodle money (cut bond paper with a marked P500.00 peso bill on top) which he received from the poseur-buyer.

Petitioner requested a preliminary investigation and waived his rights under Article 125 of the Revised Penal Code.4[4]

3 4

Thereafter, Chan submitted his Counter-Affidavit5[5] denying the charges against him. He claimed that he was the victim of a frame-up and extortion by the police officers who allegedly demanded P2 million in exchange for his release. He contended that his warrantless arrest was illegal because he was not committing a crime at that time. He insisted that the supposed sale of drugs never took place and that the alleged 1 kilo of shabu was just planted by the arresting officers.

After preliminary investigation, State Prosecutor Pablo C. Formaran III issued a Resolution6[6] dated June 17, 1999 recommending the filing of an Information against the petitioner. Prosecutor Formaran did not give credence to petitioners unsubstantiated claim of frame up and extortion. He said that the defenses and accusation of petitioner were matters of defense that should be threshed out in court. He further averred that

In the face of the laboratory findings that the white crystalline substance weighing 935.80 grams, which appears to have been taken from the possession of the respondent is positive for methylamphetamine hydrochloride, a regulated drug, and considering the existence of the buy-bust money, the undersigned investigating prosecutor finds sufficient ground to engender a well founded belief that [the] crime charged has been committed and that the herein respondent is probably guilty thereof and should, therefore, be held for trial. WHEREFORE, it is recommended that an Information for violation of Section 15, Article III of Republic Act No. 6425, as amended by Republic Act No. 7659, be filed in court against respondent Juanito Chan y Lim alias Zhang Zhenting.7[7]
5 6 7

Senior State Prosecutor Archimedes V. Manabat recommended the approval of this Resolution. It was then approved by Assistant Chief State Prosecutor Leonardo Guiyab, Jr., in behalf of the Chief State Prosecutor.

On June 30, 1999, State Prosecutor Formaran filed before the Regional Trial Court (RTC) of Quezon City an Information, alleging

That on or about April 23, 1999, in Timog Avenue, Quezon City and within the jurisdiction of this Honorable Court, the abovenamed accused, with deliberate intent and without authority of law, did then and there, willfully, unlawfully and feloniously sell and deliver to a poseur-buyer nine hundred thirtyfive point eight (935.80) grams, more or less, of methylamphetamine hydrochloride (shabu), a regulated drug. CONTRARY TO LAW.8[8]

The case was docketed as Criminal Case No. Q-99-84778, which was raffled to RTC Quezon City, Branch 224.

On July 8, 1999, petitioner filed a petition for review with the Secretary of the Department of Justice (Justice Secretary). In a Resolution dated April 25, 2000, then Secretary of Justice Artemio G. Tuquero denied the petition for review on the ground that there was no reversible error in the investigating prosecutors finding

of probable cause. Petitioner moved for the reconsideration of the said ruling, but this was likewise denied in the Resolution dated July 19, 2000.

Petitioner filed a Petition for Certiorari with Very Urgent Prayer for Writ of Preliminary Injunction and/or Temporary Restraining Order with the CA, assailing the Resolutions of the Justice Secretary. The petition prayed, among others, that the appellate court nullify said Resolutions and direct the withdrawal of the Information.

On September 21, 2000, the CA dismissed the petition. Noting that the RTC had already assumed jurisdiction over the case, it dismissed the case in accordance with the doctrine laid down in Crespo v. Mogul9[9] that once a complaint or information is filed in court, any disposition of the case rests on the sound discretion of the court. The CA further held that certiorari will not lie since petitioner may still avail of a motion to quash or dismiss the Information with the trial court.10[10]

On

February

9,

2001,

the

CA

denied

petitioners

motion

for

reconsideration.11[11] Thus, petitioner filed the instant petition for review on certiorari, ascribing the following errors to the CA:
9 10 11

I THE HONORABLE COURT OF APPEALS ACTED IN A MANNER NOT IN ACCORD WITH THE DECISION OF THE SUPREME COURT WHEN IT DISMISSED THE PETITION FOR CERTIORARI ON THE BASIS OF THIS COURTS RULING IN THE CASE OF CRESPO VS. MOGUL (151 SCRA 462). II. THE HONORABLE COURT OF APPEALS ACTED IN A MANNER NOT IN ACCORD WITH THE CONSTITUTION, LAW AND THE APPLICABLE DECISIONS OF THE SUPREME COURT IN NOT NULLIFYING THE PRELIMINARY INVESTIGATION CONDUCTED BY THE RESPONDENT STATE PROSECUTOR IN I.S. NO. 99-587, AS WELL AS THE RESOLUTION/INFORMATION ISSUED PURSUANT THERETO FOR BEING IN VIOLATION OF THE CONSTITUTIONAL RIGHT OF PETITIONER TO DUE PROCESS OF LAW. III. THE HONORABLE COURT OF APPEALS ERRED AS A MATTER OF LAW AND DEPARTED FROM THE ACCEPTED AND USUAL COURSE OF JUDICIAL PROCEEDINGS IN NOT NULLIFYING THE RESOLUTIONS OF THE SECRETARY OF JUSTICE FOR HAVING BEEN RENDERED WITH GRAVE ABUSE OF DISCRETION.12[12]

Petitioner argues that the CA erred in dismissing the petition for certiorari based on the Courts ruling in Crespo v. Mogul.13[13] He argues that Crespo is not applicable to the present case because it involves a different factual setting. He points out that in said case, it was the provincial fiscal who filed a motion to dismiss the criminal case pending before the trial court on the basis of the resolution of the Undersecretary of Justice, whereas here, the issue involves the
12 13

validity of the preliminary investigation. He avers that Crespo was superseded by Allado v. Diokno,14[14] which recognized the courts authority to nullify findings of probable cause by the prosecutor or investigating judge when due process is violated.15[15]

Petitioner contends that the preliminary investigation was void for being violative of his right to due process, which includes the right to be heard by an impartial authority. He contends that State Prosecutor Formaran could not have been objective and impartial in conducting the preliminary investigation because the latter was a member of the PAOCTF, the agency that initiated the case against him.16[16]

Petitioner asserts that the petition for certiorari was his speedy and adequate remedy from the ruling of the Justice Secretary, and not a motion to quash or dismiss the Information, as suggested by the CA. He insists that the Justice Secretary committed grave abuse of discretion when he affirmed the State Prosecutors finding of probable cause, which was based solely on the Joint Affidavit of Arrest. He claims that the State Prosecutor ignored certain facts and circumstances which indicate that there was actually no buy-bust operation but an extortion attempt instead, and capriciously relied on the presumption of regularity in the performance of the police officers duty.17[17] He posits that such presumption cannot prevail over the constitutional presumption of innocence of an
14 15 16

accused. Citing People v. Sapal,18[18] petitioner also submits that the police authorities undue delay in delivering him to the proper authorities effectively destroys the presumption of regularity in the performance of their duties. Petitioner is referring to the 10-hour delay in turning him over to the PNP Crime Laboratory from the time of his arrest. He alleges that this undue delay confirms the attempted extortion against him.

Respondents, through the Office of the Solicitor General, maintain that Allado is an exception to the general rule which may be invoked only if similar circumstances are shown to exist, and such circumstances do not exist in this case. They aver that petitioner cannot feign denial of due process considering that he actively participated in the preliminary investigation and was given the opportunity to present his side. Respondents dispel petitioners doubt as to the partiality of State Prosecutor Formaran by pointing out that his findings were reviewed by his superiors, even by the respondent Secretary of Justice.

Respondents contend that petitioners claim that he is the victim of frame-up in not worthy of credence for being unsubstantiated. Likewise, petitioner cannot rely on the failure to deliver him on time to the proper authorities because there was actually no need to do so since the PAOCTF was already a convergence of various law enforcement units, namely, the police, the military and the National Bureau of Investigation.
17 18

We deny the petition.

Contrary to petitioners view, Crespo subsists and was not superseded by Allado.

Allado, which was punctuated by inordinate eagerness in the gathering of evidence and in the preliminary investigation, serves as an exception and may not be invoked unless similar circumstances are clearly shown to exist.19[19] No such circumstances were established in the present case.

In Crespo, the Court laid down the rule that once an Information is filed in court, any disposition of the case rests on the sound discretion of the court. In subsequent cases,20[20] the Court clarified that Crespo does not bar the Justice Secretary from reviewing the findings of the investigating prosecutor in the exercise of his power of control over his subordinates. The Justice Secretary is merely advised, as far as practicable, to refrain from entertaining a petition for review of the prosecutors finding when the Information is already filed in court. In other words, the power or authority of the Justice Secretary to review the prosecutors findings subsists even after the Information is filed in court. The court, however, is not bound by the Resolution of the Justice Secretary, but must
19 20

evaluate it before proceeding with the trial. While the ruling of the Justice Secretary is persuasive, it is not binding on courts.21[21]

Albeit the findings of the Justice Secretary are not absolute and are subject to judicial review, this Court generally adheres to the policy of non-interference in the conduct of preliminary investigations, particularly when the said findings are well-supported by the facts as established by the evidence on record.22[22] Absent any showing of arbitrariness on the part of the prosecutor or any other officer authorized to conduct preliminary investigation, courts as a rule must defer to said officers finding and determination of probable cause, since the determination of the existence of probable cause is the function of the prosecutor.23[23] Simply stated, findings of the Secretary of Justice are not subject to review, unless made with grave abuse of discretion.24[24] As held in one case:

The general rule is that the courts do not interfere with the discretion of the public prosecutor in determining the specificity and adequacy of the averments in a criminal complaint. The determination of probable cause for the purpose of filing an information in court is an executive function which pertains at the first instance to the public prosecutor and then to the Secretary of Justice. The duty of the Court in appropriate cases is merely to determine whether the executive determination was done without or in excess of jurisdiction or with grave abuse of discretion. Resolutions of the Secretary of Justice are not subject to review unless made with grave abuse.25[25]
21 22 23 24 25

Thus, the findings of the Justice Secretary may be reviewed through a petition for certiorari under Rule 65 based on the allegation that he acted with grave abuse of discretion.26[26] This remedy is available to the aggrieved party.

In dismissing the petition for certiorari, the CA primarily anchored its decision on Crespo, ratiocinating that it is without authority to restrain the lower court from proceeding with the case since the latter had already assumed jurisdiction. Such concern is clearly of no moment.

In the petition for certiorari, the CA is not being asked to cause the dismissal of the case in the trial court, but only to resolve the issue of whether the Justice Secretary acted with grave abuse of discretion in affirming the finding of probable cause by the investigating prosecutor. Should it determine that the Justice Secretary acted with grave abuse of discretion, it could nullify his resolution and direct the State Prosecutor to withdraw the Information by filing the appropriate motion with the trial court. But the rule stands the decision whether to dismiss the case or not rests on the sound discretion of the trial court where the Information was filed.

The CA, likewise, opined that the filing of the petition for certiorari was improper since petitioner still had an available remedy, that is, to file a motion to
26

dismiss or to quash the Information with the trial court. We do not agree. A petition for certiorari may still be availed of even if there is an available remedy, when such remedy does not appear to be plain, speedy, and adequate in the ordinary course of law. The following excerpt from Land Bank of the Philippines v. Court of Appeals27[27] is instructive

The determination as to what exactly constitutes a plain, speedy and adequate remedy rests on judicial discretion and depends on the particular circumstances of each case. There are many authorities that subscribe to the view that it is the inadequacy, and not the mere absence, of all other legal remedies, and the danger of a failure of justice without it, that must usually determine the propriety of the writ. An adequate remedy is a remedy which is equally beneficial, speedy and sufficient, not merely a remedy which at some time in the future will bring about a revival of the judgment of the lower court complained of in the certiorari proceeding, but a remedy which would promptly relieve the petitioner from the injurious effects of that judgment and the acts of the inferior court, tribunal, board or officer.28[28]

However, instead of remanding the case to the CA, we deem it more practical to decide the substantive issue raised in this petition so as not to further delay the disposition of this case. On this issue, we hold that the Secretary of Justice did not commit grave abuse of discretion in affirming the finding of probable cause by the State Prosecutor.

Probable cause has been defined as the existence of such facts and circumstances as would lead a person of ordinary caution and prudence to entertain
27 28

an honest and strong suspicion that the person charged is guilty of the crime subject of the investigation. Being based merely on opinion and reasonable belief, it does not import absolute certainty.29[29] Probable cause need not be based on clear and convincing evidence of guilt, as the investigating officer acts upon reasonable belief. Probable cause implies probability of guilt and requires more than bare suspicion but less than evidence which would justify a conviction.30[30]

In the case at bench, petitioner is charged with illegal sale of a prohibited drug. A successful prosecution of this offense requires the concurrence of the following elements: (1) the identity of the buyer and the seller, the object of the sale, and the consideration; and (2) the delivery of the thing sold and the payment therefor.31[31] To our mind, the documentary and object evidence submitted to the State Prosecutor, particularly the Joint Affidavit of Arrest, the 935.80 grams of shabu, and the buy-bust money sufficiently establish the existence of probable cause against petitioner for the crime charged. After all, a finding of probable cause needs only to rest on evidence showing that, more likely than not, a crime has been committed by the suspect.32[32] Unless there is a clear and convincing evidence that the members of the buy-bust team were impelled by any improper motive, or were not properly performing their duties, their testimonies on the operation deserve full faith and credit.33[33]
29 30 31 32 33

The allegation that the State Prosecutor was not impartial in conducting the preliminary investigation is merely speculative a bare allegation unworthy of credence. Such accusation is worthless in light of our finding that there is, indeed, probable cause against petitioner. Moreover, bias and partiality can never be presumed.34[34] The mere fact that State Prosecutor Formaran was also a member of the PAOCTF is insignificant. The now defunct PAOCTF was created to investigate and prosecute all crime syndicates. It was a convergence and collaboration of the different agencies of the government, including the Philippine National Police and the DOJ.35[35] Unsupported statements of partiality will not suffice in the absence of contrary evidence that will overcome the presumption that the State Prosecutor regularly performed his duty.

Petitioners allegation of frame-up and extortion is evidentiary in nature, and are matters for his defense. Evidentiary matters must be presented and heard during the trial.36[36] They are best left for the trial court to evaluate and resolve after a full-blown trial on the merits.37[37] In any case, it is well to note the Courts stance on such defense: This Court is, of course, aware that in some cases, law enforcers resort to the practice of planting evidence in order to, inter alia, harass. But the defense of frame-up in drug cases requires strong and convincing evidence because of the presumption that the police officers performed their duties regularly and that
34 35 36 37

they acted within the bounds of their authority. Besides, the defense of denial or frame-up, like alibi, is viewed with disfavor for it can just as easily be concocted and is a common and standard defense ploy in most prosecutions for violation of the Dangerous Drugs Act.38[38]

As a final note, on September 4, 2001, while the case was pending before this Court, petitioner was arraigned, and pleaded not guilty. Thereafter, petitioner filed a motion for bail which was granted by Judge Emilio L. Leachon, Jr., Presiding Judge of RTC Quezon City, Branch 224. The bail bond was fixed at P100,000.00. On March 7, 2003, the RTC ordered the release of petitioner upon payment of such amount.39[39]

We recognize the courts authority to grant bail in cases involving capital offenses after a determination that evidence of guilt is not strong. But we urge them to be circumspect in exercising such discretion. In this case, it is glaring that the bail bond fixed by the RTC was exceedingly low considering that the crime charged is illegal sale of prohibited drug punishable by reclusion perpetua to death and a fine ranging from P500,000.00 to P10 milllion, with the risk of flight extremely high, the petitioner being a Chinese citizen. However, upon verification from the Office of the Court Administrator, we found out that Judge Leachon, Jr. had already retired on October 13, 2003; hence, he may no longer be called to account disciplinarily for this apparent transgression.
38 39

We are, thus, compelled to re-issue a reminder to judges to comply strictly with our guidelines on the grant of bail in capital offenses, to be conscientious in performing their judicial functions and, at all times, to be faithful to the law and the rules. They should maintain professional competence, and abide by the highest standard of integrity and moral uprightness, to ensure the peoples confidence in the judicial system. In the exercise of its authority to supervise judges and court personnel, this Court will not hesitate to impose disciplinary sanctions on judges who fail to measure up to these exacting standards of work ethics and morality.

WHEREFORE, premises considered, the petition is DENIED. Subject to our disquisition on the propriety of certiorari under Rule 65 as an appropriate remedy, the Resolutions of the Court of Appeals, dated September 21, 2000 and February 9, 2001, are AFFIRMED.

SO ORDERED.

ANTONIO EDUARDO B. NACHURA Associate Justice

WE CONCUR:

CONSUELO YNARES-SANTIAGO Associate Justice Chairperson

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-53373 June 30, 1987 MARIO FL. CRESPO, petitioner, vs. HON. LEODEGARIO L. MOGUL, Presiding Judge, CIRCUIT CRIMINAL COURT OF LUCENA CITY, 9th Judicial Dist., THE PEOPLE OF THE PHILIPPINES, represented by the SOLICITOR GENERAL, RICARDO BAUTISTA, ET AL., respondents.

GANCAYCO, J.: The issue raised in this ease is whether the trial court acting on a motion to dismiss a criminal case filed by the Provincial Fiscal upon instructions of the Secretary of Justice to whom the case was elevated for review, may refuse to grant the motion and insist on the arraignment and trial on the merits. On April 18, 1977 Assistant Fiscal Proceso K. de Gala with the approval of the Provincial Fiscal filed an information for estafa against Mario Fl. Crespo in the Circuit Criminal Court of Lucena City which was docketed as Criminal Case No. CCCIX-52 (Quezon) '77.1 When the case was set for arraigment the accused filed a motion to defer arraignment on the ground that there was a pending petition for review filed with the Secretary of Justice of the resolution of the Office of the Provincial Fiscal for the filing of the information. In an order of August 1, 1977, the presiding judge, His Honor,

Leodegario L. Mogul, denied the motion. 2 A motion for reconsideration of the order was denied in the order of August 5, 1977 but the arraignment was deferred to August 18, 1977 to afford nine for petitioner to elevate the matter to the appellate court. 3 A petition for certiorari and prohibition with prayer for a preliminary writ of injunction was filed by the accused in the Court of Appeals that was docketed as CA-G.R. SP No. 06978. 4 In an order of August 17, 1977 the Court of Appeals restrained Judge Mogul from proceeding with the arraignment of the accused until further orders of the Court. 5 In a comment that was filed by the Solicitor General he recommended that the petition be given due course. 6 On May 15, 1978 a decision was rendered by the Court of Appeals granting the writ and perpetually restraining the judge from enforcing his threat to compel the arraignment of the accused in the case until the Department of Justice shall have finally resolved the petition for review. 7 On March 22, 1978 then Undersecretary of Justice, Hon.Catalino Macaraig, Jr., resolving the petition for review reversed the resolution of the Office of the Provincial Fiscal and directed the fiscal to move for immediate dismissal of the information filed against the accused. 8 A motion to dismiss for insufficiency of evidence was filed by the Provincial Fiscal dated April 10, 1978 with the trial court, 9 attaching thereto a copy of the letter of Undersecretary Macaraig, Jr. In an order of August 2, 1978 the private prosecutor was given time to file an opposition thereto. 10 On November 24, 1978 the Judge denied the motion and set the arraigniment stating:
ORDER For resolution is a motion to dismiss this rase filed by the procuting fiscal premised on insufficiency of evidence, as suggested by the Undersecretary of Justice, evident from Annex "A" of the motion wherein, among other things, the Fiscal is urged to move for dismissal for the reason that the check involved having been issued for the payment of a pre-existing obligation the Hability of the drawer can only be civil and not criminal. The motion's thrust being to induce this Court to resolve the innocence of the accused on evidence not before it but on that adduced before the Undersecretary of Justice, a matter that not only disregards the requirements of due process but also erodes the Court's independence and integrity, the motion is considered as without merit and therefore hereby DENIED. WHEREFORE, let the arraignment be, as it is hereby set for December 18, 1978 at 9:00 o'clock in the moming. SO ORDERED. 11

The accused then filed a petition for certiorari, prohibition and mandamus with petition for the issuance of preliminary writ of prohibition and/or temporary restraining order in the Court of Appeals that was docketed as CA-G.R. No. SP-08777. 12 On January 23, 1979 a restraining order was issued by the Court of Appeals against the threatened act of arraignment of the accused until further orders from the Court. 13 In a decision of October 25, 1979 the Court of Appeals dismissed the petition and lifted the restraining

order of January 23, 1979. 14 A motion for reconsideration of said decision filed by the accused was denied in a resolution of February 19, 1980. 15 Hence this petition for review of said decision was filed by accused whereby petitioner prays that said decision be reversed and set aside, respondent judge be perpetually enjoined from enforcing his threat to proceed with the arraignment and trial of petitioner in said criminal case, declaring the information filed not valid and of no legal force and effect, ordering respondent Judge to dismiss the said case, and declaring the obligation of petitioner as purely civil. 16 In a resolution of May 19, 1980, the Second Division of this Court without giving due course to the petition required the respondents to comment to the petition, not to file a motiod to dismiss, within ten (10) days from notice. In the comment filed by the Solicitor General he recommends that the petition be given due course, it being meritorious. Private respondent through counsel filed his reply to the comment and a separate conunent to the petition asking that the petition be dismissed. In the resolution of February 5, 1981, the Second Division of this Court resolved to transfer this case to the Court En Banc. In the resolution of February 26, 1981, the Court En Banc resolved to give due course to the petition. Petitioner and private respondent filed their respective briefs while the Solicitor General filed a Manifestation in lieu of brief reiterating that the decision of the respondent Court of Appeals be reversed and that respondent Judge be ordered to dismiss the information. It is a cardinal principle that an criminal actions either commenced by complaint or by information shall be prosecuted under the direction and control of the fiscal. 17 The institution of a criminal action depends upon the sound discretion of the fiscal. He may or may not file the complaint or information, follow or not fonow that presented by the offended party, according to whether the evidence in his opinion, is sufficient or not to establish the guilt of the accused beyond reasonable doubt. 18 The reason for placing the criminal prosecution under the direction and control of the fiscal is to prevent malicious or unfounded prosecution by private persons. 19 It cannot be controlled by the complainant. 20 Prosecuting officers under the power vested in them by law, not only have the authority but also the duty of prosecuting persons who, according to the evidence received from the complainant, are shown to be guilty of a crime committed within the jurisdiction of their office. 21 They have equally the legal duty not to prosecute when after an investigation they become convinced that the evidence adduced is not sufficient to establish a prima facie case. 22 It is through the conduct of a preliminary investigation 23 that the fiscal determines the existence of a puma facie case that would warrant the prosecution of a case. The Courts cannot interfere with the fiscal's discretion and control of the criminal prosecution. It is not prudent or even permissible for a Court to compel the fiscal to prosecute a proceeding originally initiated by him on an information, if he finds that the evidence relied upon by him is insufficient for conviction. 24 Neither has the Court any

power to order the fiscal to prosecute or file an information within a certain period of time, since this would interfere with the fiscal's discretion and control of criminal prosecutions. 25 Thus, a fiscal who asks for the dismissal of the case for insufficiency of evidence has authority to do so, and Courts that grant the same commit no error. 26 The fiscal may re-investigate a case and subsequently move for the dismissal should the reinvestigation show either that the defendant is innocent or that his guilt may not be established beyond reasonable doubt. 27 In a clash of views between the judge who did not investigate and the fiscal who did, or between the fiscal and the offended party or the defendant, those of the Fiscal's should normally prevail. 28 On the other hand, neither an injunction, preliminary or final nor a writ of prohibition may be issued by the courts to restrain a criminal prosecution 29 except in the extreme case where it is necessary for the Courts to do so for the orderly administration of justice or to prevent the use of the strong arm of the law in an op pressive and vindictive manner. 30 However, the action of the fiscal or prosecutor is not without any limitation or control. The same is subject to the approval of the provincial or city fiscal or the chief state prosecutor as the case maybe and it maybe elevated for review to the Secretary of Justice who has the power to affirm, modify or reverse the action or opinion of the fiscal. Consequently the Secretary of Justice may direct that a motion to dismiss the rase be filed in Court or otherwise, that an information be filed in Court. 31 The filing of a complaint or information in Court initiates a criminal action. The Court thereby acquires jurisdiction over the case, which is the authority to hear and determine the case. 32 When after the filing of the complaint or information a warrant for the arrest of the accused is issued by the trial court and the accused either voluntarily submited himself to the Court or was duly arrested, the Court thereby acquired jurisdiction over the person of the accused. 33 The preliminary investigation conducted by the fiscal for the purpose of determining whether a prima facie case exists warranting the prosecution of the accused is terminated upon the filing of the information in the proper court. In turn, as above stated, the filing of said information sets in motion the criminal action against the accused in Court. Should the fiscal find it proper to conduct a reinvestigation of the case, at such stage, the permission of the Court must be secured. After such reinvestigation the finding and recommendations of the fiscal should be submitted to the Court for appropriate action. 34 While it is true that the fiscal has the quasi judicial discretion to determine whether or not a criminal case should be filed in court or not, once the case had already been brought to Court whatever disposition the fiscal may feel should be proper in the rase thereafter should be addressed for the consideration of the Court, 35 The only qualification is that the action of the Court must not impair the substantial rights of the accused. 36 or the right of the People to due process of law. 36a Whether the accused had been arraigned or not and whether it was due to a reinvestigation by the fiscal or a review by the Secretary of Justice whereby a motion to dismiss was submitted to the Court, the Court in the exercise of its discretion may grant

the motion or deny it and require that the trial on the merits proceed for the proper determination of the case. However, one may ask, if the trial court refuses to grant the motion to dismiss filed by the fiscal upon the directive of the Secretary of Justice will there not be a vacuum in the prosecution? A state prosecutor to handle the case cannot possibly be designated by the Secretary of Justice who does not believe that there is a basis for prosecution nor can the fiscal be expected to handle the prosecution of the case thereby defying the superior order of the Secretary of Justice. The answer is simple. The role of the fiscal or prosecutor as We all know is to see that justice is done and not necessarily to secure the conviction of the person accused before the Courts. Thus, in spite of his opinion to the contrary, it is the duty of the fiscal to proceed with the presentation of evidence of the prosecution to the Court to enable the Court to arrive at its own independent judgment as to whether the accused should be convicted or acquitted. The fiscal should not shirk from the responsibility of appearing for the People of the Philippines even under such circumstances much less should he abandon the prosecution of the case leaving it to the hands of a private prosecutor for then the entire proceedings will be null and void. 37 The least that the fiscal should do is to continue to appear for the prosecution although he may turn over the presentation of the evidence to the private prosecutor but still under his direction and control. 38 The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any disposition of the case as its dismissal or the conviction or acquittal of the accused rests in the sound discretion of the Court. Although the fiscal retains the direction and control of the prosecution of criminal cases even while the case is already in Court he cannot impose his opinion on the trial court. The Court is the best and sole judge on what to do with the case before it. The determination of the case is within its exclusive jurisdiction and competence. A motion to dismiss the case filed by the fiscal should be addressed to the Court who has the option to grant or deny the same. It does not matter if this is done before or after the arraignment of the accused or that the motion was filed after a reinvestigation or upon instructions of the Secretary of Justice who reviewed the records of the investigation. In order therefor to avoid such a situation whereby the opinion of the Secretary of Justice who reviewed the action of the fiscal may be disregarded by the trial court, the Secretary of Justice should, as far as practicable, refrain from entertaining a petition for review or appeal from the action of the fiscal, when the complaint or information has already been filed in Court. The matter should be left entirely for the determination of the Court. WHEREFORE, the petition is DISMISSED for lack of merit without pronouncement as to costs. SO ORDERED.