Rule 112

Rule 112 preliminary investigation
Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 101837 February 11, 1992
ROLITO GO y TAMBUNTING, petitioner,
vs.
THE COURT OF APPEALS, THE HON. BENJAMIN V. PELAYO, Presiding
Judge, Branch 168, Regional Trial Court, NCJR Pasig, M.M., and PEOPLE OF
THE PHILIPPINES, respondents.
FELICIANO, J.:
According to the findings of the San Juan Police in their Investigation Report, 1 on 2
July 1991, Eldon Maguan was driving his car along Wilson St., San Juan, Metro
Manila, heading towards P. Guevarra St. Petitioner entered Wilson St., where it is a
one-way street and started travelling in the opposite or "wrong" direction. At the corner
of Wilson and J. Abad Santos Sts., petitioner's and Maguan's cars nearly bumped each
other. Petitioner alighted from his car, walked over and shot Maguan inside his car.
Petitioner then boarded his car and left the scene. A security guard at a nearby
restaurant was able to take down petitioner's car plate number. The police arrived
shortly thereafter at the scene of the shooting and there retrieved an empty shell and
one round of live ammunition for a 9 mm caliber pistol. Verification at the Land
Transportation Office showed that the car was registered to one Elsa Ang Go.
The following day, the police returned to the scene of the shooting to find out where
the suspect had come from; they were informed that petitioner had dined at Cravings
Bake Shop shortly before the shooting. The police obtained a facsimile or impression
of the credit card used by petitioner from the cashier of the bake shop. The security
guard of the bake shop was shown a picture of petitioner and he positively identified
him as the same person who had shot Maguan. Having established that the assailant
was probably the petitioner, the police launched a manhunt for petitioner.
On 8 July 1991, petitioner presented himself before the San Juan Police Station to
verify news reports that he was being hunted by the police; he was accompanied by
two (2) lawyers. The police forthwith detained him. An eyewitness to the shooting,
who was at the police station at that time, positively identified petitioner as the
gunman. That same day, the police promptly filed a complaint for frustrated
homicide 2 against petitioner with the Office of the Provincial Prosecutor of Rizal.
First Assistant Provincial Prosecutor Dennis Villa Ignacio ("Prosecutor") informed
petitioner, in the presence of his lawyers, that he could avail himself of his right to
preliminary investigation but that he must first sign a waiver of the provisions of
Article 125 of the Revised Penal Code. Petitioner refused to execute any such
waiver.
On 9 July 1991, while the complaint was still with the Prosecutor, and before an
information could be filed in court, the victim, Eldon Maguan, died of his gunshot
wound(s).
Accordingly, on 11 July 1991, the Prosecutor, instead of filing an information for
frustrated homicide, filed an information for murder 3 before the Regional Trial
Court. No bail was recommended. At the bottom of the information, the
Prosecutor certified that no preliminary investigation had been conducted because
the accused did not execute and sign a waiver of the provisions of Article 125 of
the Revised Penal Code.
In the afternoon of the same day, 11 July 1991, counsel for petitioner filed with the
Prosecutor an omnibus motion for immediate release and proper preliminary
investigation, 4 alleging that the warrantless arrest of petitioner was unlawful and
that no preliminary investigation had been conducted before the information was
filed. Petitioner also prayed that he be released on recognizance or on bail.
Provincial Prosecutor Mauro Castro, acting on the omnibus motion, wrote on the
last page of the motion itself that he interposed no objection to petitioner being
granted provisional liberty on a cash bond of P100,000.00.
On 12 July 1991, petitioner filed an urgent ex-parte motion for special raffle 5 in
order to expedite action on the Prosecutor's bail recommendation. The case was
raffled to the sala of respondent Judge, who, on the same date, approved the cash
bond 6 posted by petitioner and ordered his release. 7 Petitioner was in fact
released that same day.
On 16 July 1991, the Prosecutor filed with the Regional Trial Court a motion for
leave to conduct preliminary investigation 8 and prayed that in the meantime all
proceedings in the court be suspended. He stated that petitioner had filed before
the Office of the Provincial Prosecutor of Rizal an omnibus motion for immediate
release and preliminary investigation, which motion had been granted by
Provincial Prosecutor Mauro Castro, who also agreed to recommend cash bail of
P100,000.00. The Prosecutor attached to the motion for leave a copy of
petitioner's omnibus motion of 11 July 1991.
Also on 16 July 1991, the trial court issued an Order 9 granting leave to conduct
preliminary investigation and cancelling the arraignment set for 15 August 1991
until after the prosecution shall have concluded its preliminary investigation.
On 17 July 1991, however, respondent Judge motu proprio issued an
Order, 10 embodying the following: (1) the 12 July 1991 Order which granted bail

was recalled; petitioner was given 48 hours from receipt of the Order to surrender
himself; (2) the 16 July 1991 Order which granted leave to the prosecutor to conduct
preliminary investigation was recalled and cancelled; (3) petitioner's omnibus motion
for immediate release and preliminary investigation dated 11 July 1991 was treated as
a petition for bail and set for hearing on 23 July 1991.
On 19 July 1991, petitioner filed a petition for certiorari, prohibition
and mandamus before the Supreme Court assailing the 17 July 1991 Order, contending
that the information was null and void because no preliminary investigation had been
previously conducted, in violation of his right to due process. Petitioner also moved for
suspension of all proceedings in the case pending resolution by the Supreme Court of
his petition; this motion was, however, denied by respondent Judge.
On 23 July 1991, petitioner surrendered to the police.
By a Resolution dated 24 July 1991, this Court remanded the petition for certiorari,
prohibition and mandamus to the Court of Appeals.
On 16 August 1991, respondent Judge issued an order in open court setting the
arraignment of petitioner on 23 August 1991.
On 19 August 1991, petitioner filed with the Court of Appeals a motion to restrain his
arraignment.
On 23 August 1991, respondent judge issued a Commitment Order directing the
Provincial Warden of Rizal to admit petitioner into his custody at the Rizal Provincial
Jail. On the same date, petitioner was arraigned. In view, however, of his refusal to
enter a plea, the trial court entered for him a plea of not guilty. The Trial court then set
the criminal case for continuous hearings on 19, 24 and 26 September; on 2, 3, 11 and
17 October; and on 7, 8, 14, 15, 21 and 22 November 1991. 11
On 27 August 1991, petitioner filed a petition for habeas corpus 12 in the Court of
Appeals. He alleged that in view of public respondent's failure to join issues in the
petition for certiorari earlier filed by him, after the lapse of more than a month, thus
prolonging his detention, he was entitled to be released on habeas corpus.
On 30 August 1991, the Court of Appeals issued the writ of habeas corpus. 13 The
petition for certiorari, prohibition and mandamus, on the one hand, and the petition
for habeas corpus, upon the other, were subsequently consolidated in the Court of
Appeals.
The Court of Appeals, on 2 September 1991, issued a resolution denying petitioner's
motion to restrain his arraignment on the ground that that motion had become moot
and academic.
On 19 September 1991, trial of the criminal case commenced and the prosecution
presented its first witness.
On 23 September 1991, the Court of Appeals rendered a consolidated

decision 14 dismissing the two (2) petitions, on the following grounds:
a. Petitioner's warrantless arrest was valid because the offense
for which he was arrested and charged had been "freshly
committed." His identity had been established through
investigation. At the time he showed up at the police station,
there had been an existing manhunt for him. During the
confrontation at the San Juan Police Station, one witness
positively identified petitioner as the culprit.
b. Petitioner's act of posting bail constituted waiver of any
irregularity attending his arrest. He waived his right to
preliminary investigation by not invoking it properly and
seasonably under the Rules.
c. The trial court did not abuse its discretion when it issued the
17 July 1991 Order because the trial court had the inherent
power to amend and control its processes so as to make them
conformable to law and justice.
d. Since there was a valid information for murder against
petitioner and a valid commitment order (issued by the trial
judge after petitioner surrendered to the authorities whereby
petitioner was given to the custody of the Provincial Warden),
the petition for habeas corpus could not be granted.
On 3 October 1991, the prosecution presented three (3) more witnesses at the trial.
Counsel for petitioner also filed a "Withdrawal of Appearance" 15 with the trial
court, with petitioner's conformity.
On 4 October 1991, the present Petition for Review on Certiorari was filed. On 14
October 1991, the Court issued a Resolution directing respondent Judge to hold in
abeyance the hearing of the criminal case below until further orders from this
Court.
In this Petition for Review, two (2) principal issues need to be addressed: first,
whether or not a lawful warrantless arrest had been effected by the San Juan
Police in respect of petitioner Go; and second, whether petitioner had effectively
waived his right to preliminary investigation. We consider these issues seriatim.
In respect of the first issue, the Solicitor General argues that under the facts of the
case, petitioner had been validly arrested without warrant. Since petitioner's
identity as the gunman who had shot Eldon Maguan on 2 July 1991 had been
sufficiently established by police work, petitioner was validly arrested six (6) days
later at the San Juan Police Station. The Solicitor General invokes Nazareno
v. Station Commander, etc., et al., 16 one of the seven (7) cases consolidated

with In the Matter of the Petition for Habeas Corpus of Roberto Umil, etc., v. Ramos,
et al. 17 where a majority of the Court upheld a warrantees arrest as valid although
effected fourteen (14) days after the killing in connection with which Nazareno had
been arrested. Accordingly, in the view of the Solicitor General, the provisions of
Section 7, Rule 112 of the Rules of Court were applicable and because petitioner had
declined to waive the provisions of Article 125 of the Revised Penal Code, the
Prosecutor was legally justified in filing the information for murder even without
preliminary investigation.
On the other hand, petitioner argues that he was not lawfully arrested without warrant
because he went to the police station six (6) days after the shooting which he had
allegedly perpetrated. Thus, petitioner argues, the crime had not been "just committed"
at the time that he was arrested. Moreover, none of the police officers who arrested him
had been an eyewitness to the shooting of Maguan and accordingly none had the
"personal knowledge" required for the lawfulness of a warrantees arrest. Since there
had been no lawful warrantless arrest. Section 7, Rule 112 of the Rules of Court which
establishes the only exception to the right to preliminary investigation, could not apply
in respect of petitioner.
The reliance of both petitioner and the Solicitor General upon Umil v. Ramos is, in the
circumstances of this case, misplaced. In Umil v. Ramos, by an eight-to-six vote, the
Court sustained the legality of the warrantless arrests of petitioners made from one (1)
to fourteen days after the actual commission of the offenses, upon the ground that such
offenses constituted "continuing crimes." Those offenses were subversion, membership
in an outlawed organization like the New People's Army, etc. In the instant case, the
offense for which petitioner was arrested was murder, an offense which was obviously
commenced and completed at one definite location in time and space. No one had
pretended that the fatal shooting of Maguan was a "continuing crime."
Secondly, we do not believe that the warrantees "arrest" or detention of petitioner in
the instant case falls within the terms of Section 5 of Rule 113 of the 1985 Rules on
Criminal Procedure which provides as follows:
Sec. 5 Arrest without warrant; when lawful. A peace officer or a
private person may, without warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has
personal knowledge of facts indicating that the person to be arrested
has committed it; and
(c) When the person to be arrested is a prisoner who has escaped
from a penal establishment or place where he is serving final
judgment or temporarily confined while his case is pending, or has
escaped while being transferred from one confinement to

another.
In cases falling under paragraphs (a) and (b) hereof, the person
arrested without a warrant shall be forthwith delivered to the
nearest police station or jail, and he shall be proceed against in
accordance with Rule 112, Section 7.
Petitioner's "arrest" took place six (6) days after the shooting of Maguan. The
"arresting" officers obviously were not present, within the meaning of Section
5(a), at the time petitioner had allegedly shot Maguan. Neither could the "arrest"
effected six (6) days after the shooting be reasonably regarded as effected "when
[the shooting had] in fact just been committed" within the meaning of Section
5(b). Moreover, none of the "arresting" officers had any "personal knowledge" of
facts indicating that petitioner was the gunman who had shot Maguan. The
information upon which the police acted had been derived from statements made
by alleged eyewitnesses to the shooting one stated that petitioner was the
gunman; another was able to take down the alleged gunman's car's plate number
which turned out to be registered in petitioner's wife's name. That information did
not, however, constitute "personal knowledge." 18
It is thus clear to the Court that there was no lawful warrantless arrest of petitioner
within the meaning of Section 5 of Rule 113. It is clear too that Section 7 of Rule
112, which provides:
Sec. 7 When accused lawfully arrested without warrant.
When a person is lawfully arrested without a warrant for an
offense cognizable by the Regional Trial Court the complaint or
information may be filed by the offended party, peace officer or
fiscal without a preliminary investigation having been first
conducted, on the basis of the affidavit of the offended party or
arresting office or person
However, before the filing of such complaint or information, the
person arrested may ask for a preliminary investigation by a
proper officer in accordance with this Rule, but he must sign a
waiver of the provisions of Article 125 of the Revised Penal
Code, as amended, with the assistance of a lawyer and in case of
non-availability of a lawyer, a responsible person of his
choice. Notwithstanding such waiver, he may apply for bail as
provided in the corresponding rule and the investigation must be
terminated within fifteen (15) days from its inception.
If the case has been filed in court without a preliminary
investigation having been first conducted, the accused
may within five (5) days from the time he learns of the filing of

the information, ask for a preliminary investigation with the same
right to adduce evidence in his favor in the manner prescribed in this
Rule. (Emphasis supplied)
is also not applicable. Indeed, petitioner was not arrested at all. When he walked into
San Juan Police Station, accompanied by two (2) lawyers, he in fact placed himself at
the disposal of the police authorities. He did not state that he was "surrendering"
himself, in all probability to avoid the implication he was admitting that he had slain
Eldon Maguan or that he was otherwise guilty of a crime. When the police filed a
complaint for frustrated homicide with the Prosecutor, the latter should have
immediately scheduled a preliminary investigation to determine whether there was
probable cause for charging petitioner in court for the killing of Eldon Maguan.
Instead, as noted earlier, the Prosecutor proceed under the erroneous supposition that
Section 7 of Rule 112 was applicable and required petitioner to waive the provisions of
Article 125 of the Revised Penal Code as a condition for carrying out a preliminary
investigation. This was substantive error, for petitioner was entitled to a preliminary
investigation and that right should have been accorded him without any conditions.
Moreover, since petitioner had not been arrested, with or without a warrant, he was
also entitled to be released forthwith subject only to his appearing at the preliminary
investigation.
Turning to the second issue of whether or not petitioner had waived his right to
preliminary investigation, we note that petitioner had from the very beginning
demanded that a preliminary investigation be conducted. As earlier pointed out, on the
same day that the information for murder was filed with the Regional Trial Court,
petitioner filed with the Prosecutor an omnibus motion for immediate release and
preliminary investigation. The Solicitor General contends that that omnibus motion
should have been filed with the trial court and not with the Prosecutor, and that the
petitioner should accordingly be held to have waived his right to preliminary
investigation. We do not believe that waiver of petitioner's statutory right to
preliminary investigation may be predicated on such a slim basis. The preliminary
investigation was to be conducted by the Prosecutor, not by the Regional Trial Court. It
is true that at the time of filing of petitioner's omnibus motion, the information for
murder had already been filed with the Regional Trial Court: it is not clear from the
record whether petitioner was aware of this fact at the time his omnibus motion was
actually filed with the Prosecutor. In Crespo v. Mogul, 19 this Court held:
The preliminary investigation conducted by the fiscal for the purpose
of determining whether a prima facie case exists to warranting the
prosecution of the accused is terminated upon the filing of the
information in the proper court. In turn, as above stated, the filing of
said information sets in motion the criminal action against the
accused in Court. Should the fiscal find it proper to conduct a
reinvestigation of the case, at such stage, the permission of the Court
must be secured. After such reinvestigation the finding and

recommendations of the fiscal should be submitted to the Court
for appropriate action. While it is true that the fiscal has
the quasi-judicial discretion to determine whether or not a
criminal case should be filed in court or not, once the case had
already been brought to Court whatever disposition the fiscal
may feel should be proper in the case thereafter should be
addressed for the consideration of the Court. The only
qualification is that the action of the Court must not impair the
substantial rights of the accused., or the right of the People to
due process of law.
xxx xxx xxx
The rule therefore in this jurisdiction is that once a complaint or
information is filed in Court any disposition of the case [such]
as its dismissal or the conviction or acquittal of the accused
rests in the sound discretion of the Court. Although the fiscal
retains the direction and control of the prosecution of criminal
cases even while the case is already in Court he cannot impose
his opinion on the trial court. The Court is the best and sole
judge on what to do with the case before it. . . . 20 (Citations
omitted; emphasis supplied)
Nonetheless, since petitioner in his omnibus motion was asking for
preliminary investigation and not for a re-investigation (Crespo v. Mogul
involved a re-investigation), and since the Prosecutor himself did file
with the trial court, on the 5th day after filing the information for murder,
a motion for leave to conduct preliminary investigation (attaching to his
motion a copy of petitioner's omnibus motion), we conclude that
petitioner's omnibus motion was in effect filed with the trial court. What
was crystal clear was that petitioner did ask for a preliminary
investigation on the very day that the information was filed without such
preliminary investigation, and that the trial court was five (5) days later
apprised of the desire of the petitioner for such preliminary investigation.
Finally, the trial court did in fact grant the Prosecutor's prayer for leave to
conduct preliminary investigation. Thus, even on the (mistaken)
supposition apparently made by the Prosecutor that Section 7 of Rule 112
of the Revised Court was applicable, the 5-day reglementary period in
Section 7, Rule 112 must be held to have been substantially complied
with.
We believe and so hold that petitioner did not waive his right to a preliminary
investigation. While that right is statutory rather than constitutional in its
fundament, since it has in fact been established by statute, it is a component part

of due process in criminal justice. 21 The right to have a preliminary investigation
conducted before being bound over to trial for a criminal offense and hence formally at
risk of incarceration or some other penalty, is not a mere formal or technical right; it is
a substantive right. The accused in a criminal trial is inevitably exposed to prolonged
anxiety, aggravation, humiliation, not to speak of expense; the right to an opportunity
to avoid a process painful to any one save, perhaps, to hardened criminals, is a
valuable right. To deny petitioner's claim to a preliminary investigation would be to
deprive him the full measure of his right to due process.
The question may be raised whether petitioner still retains his right to a preliminary
investigation in the instant case considering that he was already arraigned on 23
August 1991. The rule is that the right to preliminary investigation is waived when the
accused fails to invoke it before or at the time of entering a plea at arraignment.22 In
the instant case, petitioner Go had vigorously insisted on his right to preliminary
investigation before his arraignment.At the time of his arraignment, petitioner was
already before the Court of Appeals on certiorari, prohibition and mandamusprecisely
asking for a preliminary investigation before being forced to stand trial.
Again, in the circumstances of this case, we do not believe that by posting bail
petitioner had waived his right to preliminary investigation. In People
v. Selfaison, 23 we did hold that appellants there had waived their right to preliminary
investigation because immediately after their arrest, they filed bail and proceeded to
trial "without previously claiming that they did not have the benefit of a preliminary
investigation." 24 In the instant case, petitioner Go asked for release on recognizance
or on bail and for preliminary investigation in one omnibus motion. He had thus
claimed his right to preliminary investigation before respondent Judge approved the
cash bond posted by petitioner and ordered his release on 12 July 1991. Accordingly,
we cannot reasonably imply waiver of preliminary investigation on the part of
petitioner. In fact, when the Prosecutor filed a motion in court asking for leave to
conduct preliminary investigation, he clearly if impliedly recognized that petitioner's
claim to preliminary investigation was a legitimate one.
We would clarify, however, that contrary to petitioner's contention the failure to accord
preliminary investigation, while constituting a denial of the appropriate and full
measure of the statutory process of criminal justice, did not impair the validity of the
information for murder nor affect the jurisdiction of the trial court. 25
It must also be recalled that the Prosecutor had actually agreed that petitioner was
entitled to bail. This was equivalent to an acknowledgment on the part of the
Prosecutor that the evidence of guilt then in his hands was not strong. Accordingly, we
consider that the 17 July 1991 order of respondent Judge recalling his own order
granting bail and requiring petitioner to surrender himself within forty-eight (48) hours
from notice, was plainly arbitrary considering that no evidence at all and certainly
no new or additional evidence had been submitted to respondent Judge that could
have justified the recall of his order issued just five (5) days before. It follows that
petitioner was entitled to be released on bail as a matter of right.

The final question which the Court must face is this: how does the fact that, in the
instant case, trial on the merits has already commenced, the Prosecutor having
already presented four (4) witnesses, impact upon, firstly, petitioner's right to a
preliminary investigation and, secondly, petitioner's right to be released on bail?
Does he continue to be entitled to have a preliminary investigation conducted in
respect of the charge against him? Does petitioner remain entitled to be released
on bail?
Turning first to the matter of preliminary investigation, we consider that petitioner
remains entitled to a preliminary investigation although trial on the merits has
already began. Trial on the merits should be suspended or held in abeyance and a
preliminary investigation forthwith accorded to petitioner. 26 It is true that the
Prosecutor might, in view of the evidence that he may at this time have on hand,
conclude that probable cause exists; upon the other hand, the Prosecutor
conceivably could reach the conclusion that the evidence on hand does not warrant
a finding of probable cause. In any event, the constitutional point is that petitioner
was not accorded what he was entitled to by way of procedural due
process. 27 Petitioner was forced to undergo arraignment and literally pushed to
trial without preliminary investigation, with extraordinary haste, to the applause
from the audience that filled the courtroom. If he submitted to arraignment at trial,
petitioner did so "kicking and screaming," in a manner of speaking . During the
proceedings held before the trial court on 23 August 1991, the date set for
arraignment of petitioner, and just before arraignment, counsel made very clear
petitioner's vigorous protest and objection to the arraignment precisely because of
the denial of preliminary investigation. 28 So energetic and determined were
petitioner's counsel's protests and objections that an obviously angered court and
prosecutor dared him to withdraw or walkout, promising to replace him with
counsel de oficio. During the trial, before the prosecution called its first witness,
petitioner through counsel once again reiterated his objection to going to trial
without preliminary investigation: petitioner's counsel made of record his
"continuing objection." 29 Petitioner had promptly gone to the appellate court
on certiorari and prohibition to challenge the lawfulness of the procedure he was
being forced to undergo and the lawfulness of his detention. 30 If he did not walk
out on the trial, and if he cross-examined the prosecution's witnesses, it was
because he was extremely loath to be represented by counsel de oficio selected by
the trial judge, and to run the risk of being held to have waived also his right to
use what is frequently the only test of truth in the judicial process.
In respect of the matter of bail, we similarly believe and so hold that petitioner
remains entitled to be released on bail as a matter of right. Should the evidence
already of record concerning petitioner's guilt be, in the reasonable belief of the
Prosecutor, strong, the Prosecutor may move in the trial court for cancellation of

petitioner's bail. It would then be up to the trial court, after a careful and objective
assessment of the evidence on record, to grant or deny the motion for cancellation of
bail.
To reach any other conclusions here, that is, to hold that petitioner's rights to a
preliminary investigation and to bail were effectively obliterated by evidence
subsequently admitted into the record would be to legitimize the deprivation of due
process and to permit the Government to benefit from its own wrong or culpable
omission and effectively to dilute important rights of accused persons well-nigh to the
vanishing point. It may be that to require the State to accord petitioner his rights to a
preliminary investigation and to bail at this point, could turn out ultimately to be
largely a ceremonial exercise. But the Court is not compelled to speculate. And, in any
case, it would not be idle ceremony; rather, it would be a celebration by the State of the
rights and liberties of its own people and a re-affirmation of its obligation and
determination to respect those rights and liberties.
ACCORDINGLY, the Court resolved to GRANT the Petition for Review
on Certiorari. The Order of the trial court dated 17 July 1991 is hereby SET ASIDE
and NULLIFIED, and the Decision of the Court of Appeals dated 23 September 1991
hereby REVERSED.
The Office of the Provincial Prosecutor is hereby ORDERED to conduct forthwith a
preliminary investigation of the charge of murder against petitioner Go, and to
complete such preliminary investigation within a period of fifteen (15) days from
commencement thereof. The trial on the merits of the criminal case in the Regional
Trial Court shall be SUSPENDED to await the conclusion of the preliminary
investigation.

SUPREME COURT
Manila
Meantime, petitioner is hereby ORDERED released forthwith upon posting of a cash

bail bond of One Hundred Thousand Pesos (P100,000.00). This release shall be
without prejudice to any lawful order that the trial court may issue, should the Office
of the Provincial Prosecutor move for cancellation of bail at the conclusion of the
preliminary investigation.
ALVAREZ ARO YUSOP, petitioner,

vs.
THE HONORABLE SANDIGANBAYAN (First Division), respondent.
No pronouncement as to costs. This Decision is immediately executory.

SO ORDERED.
Narvasa, C.J., Bidin, Medialdea, Romero and Nocon, JJ., concur.
THIRD DIVISION
G.R. No. 138859-60
February 22, 2001
PANGANIBAN, J.:
The right of a person to preliminary investigation is recognized by the law and is
governed by the Rules of Court. However, the failure to accord this right does
not ipso facto result in the dismissal of the information; the case is merely
suspended, and the prosecutor directed to conduct the proper investigation.
The Case
Before us is a Petition for Certiorari under Rule 65 of the Rules of Court, assailing
two Orders1 of the Sandiganbayan,2 both dated February 15, 1999. The first
Order rejected the attempt of petitioner to stop his arraignment in Criminal Case
Nos. 24524-25, on the ground that he had been denied the right to a preliminary
investigation. In the assailed second Order, the Sandiganbayan directed that a plea
of not guilty be entered for all the accused, including herein petitioner.

The Facts
Acting on an Affidavit-Complaint3 filed by a certain Erlinda Fadri, the Office of the
Ombudsman-Mindanao issued an Order4 dated September 19, 1995, naming the
following as respondents: benjamin Arao, Fredireck Winters, Pelaez Pantaran, Eduardo
Dablo, Efren Sissay and the city jail warden of Pagadian City. The Order also
reqquired respondents, within ten days from receipt thereof, to submit their counteraffidavits and other pieces of controverting evidence.
The Office of the Ombudsman for Mindanao issued a Resolution dated January 15,
1998,5 recommending the prosecution of "the aforenamed respondents" for violation
of Article 269 of the Revised Penal Code and Section 3-a in relation to Section 3-e of
Republic Act No. 3019 as amended. Significantly, the name of Petitioner Alvarez A.
Yusop was included as one of the persons to be prosecuted, although he was not one of
the original respondents mentioned in the Order of September 19, 1995. Ombudsman
Aniano A. Desierto approved the recommendation.1wphi1.nt
Accordingly, two Informations were filed with the Sandiganbayan. They were
docketed as Criminal Case Nos. 24524 (violation of Section 3-a of RA 3019) and
24525 (unlawful arrect under Article 269 of the Revised Penal Code).
On April 16, 1998, an Order of Arrest was issued by the Sandiganbayan in Criminal
Case No. 24524. Petitioner, however, posted a bail bond before the Regional Trial
Court of Dipolos City on May 20 of the same year. On the same day, he filed a
"Motion To Remand Case To The Ombudsman - Mindanao For Preliminary
Investigation."
In Resolution dated June 8, 1998, the Sandiganbayan denied the Motion of petitioner
for his alleged failure to submit himself to the jurisdiction of the anti-graft court.
On August 8, 1998, petitioner filed a Motion to Dismiss, grounded again on the lack of
preliminary investigation. In an Order dated September 22, 1998, the Sandiganbayan
resolved not to take action on the Motion, because petitioner had not yet submitted
himself to its jurisdiction insofar as Criminal Case No. 24525 was concerned.
On the scheduled arraignment on February 15, 1999, petitioner reiterated his claim that
he had not been accorded preliminary investigation. In its two assailed Orders, the
Sandigabayan rejected his claim and proceeded with the arraignment.
Hence, this recourse.6
Ruling of the Sandiganbayan
The Sandibayan rejected petitioner's plea for preliminary investigation in this wise:
"This morning, the accused herein appeared for arraignment duly represented
by their counsel. Before proceeding, Atty. Omar A. Rivera appearing in behalf
of accused Yusop informed this court of his reservations about proceeding
with the arraignment this morning, primarily on the ground that accused
Yusop did not undergo preliminary furnished any notice nor was he
informed of the proceedings before the Ombudsman with respect to these
cases. It would appear that one of the reasons [therefor] is that the
accused despite notice of the existence of the accusation against him in
Criminal Case No. 24525, had not given any timely notice nor any
statement of any alleged inadequacy of the proceeding regarding the
filing of the Information herein; thus, the Court is not persuaded that the
claim of the accused Yusop with regard to the inadequacy of the
proceedings as against him could still be validly entertained at this time.
This is more particularly significant under Section 27 of Republic Act
6770 and xxx Criminal Cases 24524 and 24525 refer to the same incident
although the prosecution, for its part, has filed Infomations under
different statutes covering the same incident. Thus, the claim of accused
Yusop that he was not notified with respect to one of the cases on an
identical set of facts herein is not [of] particular significance since this
would the be indulging in a superfluity.
xxx
xxx
xxx
"Thus, in view of all the following, the Court will now proceed to the
arraignment of the accused herein."
The Issue
Although the parties did not specify the issue in this case, it is clear from their
submissions that they are asking this Court to resolve this question: Whether the
Sanduganbayan, despite being informed of the lack of preliminary investigation
with respect to petitioner, In Criminal Case No. 24524, committed grave abuse of
discretion in proceeding with his arraignment.
The Court's Ruling
The Petition is meritorious in part. While petitioner is entitled to preliminary
investigation, the case against him should not be dismissed.
Main Issue:
Preliminary Investigation
Preliminary investigation is "an inquiry or proceeding to determine whether there
is sufficient ground to engender a well-founded belief that a crime has been
committed and the respondent is probably guilty thereof, and should be held for
trial."7 The Court explained that the rationable of preliminary investigation is to
"protect the accused from the inconvenience, expense and burden of defending
himself in a formal trial unless the reasonable probability of his guilt shall have
been first ascertained in a fairly summary proceeding by a competent officer."8

The Rules of Court requires such investigation before an information for an offense
punishable by at least four years, two months and one day may be filed in court.9 The
old Rules, on the other hand, mandates preliminary investigation of an offense
cognizable by the regional trial court.10
Petitioner is charged in Criminal Case No. 24254 with violation of Section 3-a of RA
of 3019. Such offense is punishable with, among other penalties, imprisonment of six
years and one month to fifteen years.11 Under the aforecited Rules, whether in the old
or the revised version, he is entitled to a preliminary investigation.
It is undisputed, however, that before the Information against petitioner was filed, no
preliminary invertigation had been conducted. In fact, the Office of the Ombudsman
admitted that "petitioner was denied of his right to preliminary investigation."12
We find no basis for the Sandiganbayan's ruling that petitioner "had not given timely
notice nor any statement of the alleged inadequacy of the proceeding regarding the
filing of the Information."
First, there was no showing that petitioner was notified of the charges filed by Erlinda
Fadri. As earlier noted, he had not been named a s arepondent in the September 19,
1995 Order of the Office of the Ombudsman in Mindanao. His name did not even
appear in the caption of its January 15, 1998 Resolution,13 which recommended the
filing of charges against the accused. Indeed, in his Compliance with the August 26,
1998 Sandiganbayan Resolution,14 Special Prosecution Officer Diosdado V. Calonge
manifested that petitioner "was not notified of the proceedings of the preliminary
investigation and was accordingly not given the opportunity to be heard thereon."15
After learning of the filing of the Information against him when he was served a
Warrant of Arrest, petitioner did not dally. He immediately informed the
Sandiganbayan that no preliminary investigation had been conducted in regard to him.
Several months later, moments before his arraignment, he reiterated his prayer that the
preliminary investigation be conducted. In this light, the Sandiganbayan erred in
saying that he had not given the court timely notice of this deficiency.
Even assuming that prior to the filing of the Information petitioner had known that the
proceedings and the investigation against his co-accused were pending, he cannot be
expected to know of the investigator's subsequent act of charging him. Precisely, he
had not been previously included therein and, consequently, he had not been notified
thereof.
In Go v. Court of Appeals,16 this Court held that "the right to preliminary investigation
is waived when the accused fails to invoke it before or at the time of entering a plea at
arraignment." Conversely, if the accused does invoke it before arraignment, as the
petitioner did in this case, the right is not waived.
Neither did the filing of a bail bond constitute a waiver of petitioner's right to
preliminary investigation. Under Section 26, Rule 114 of the Revised Rules of
Criminal Procedure, "[a]n application for or admission to bai; shall not bar the
accused from challenging the validity of his arrest or the legality of the warrant
issued therefor, or from assailing the regularity or questioning the absence of a
preliminary investigation of the charge against him, provided that he raises them
before entering his plea. xxx."
We stress that the right to preliminary investigation is substantive, not merely
formal or technical. To deny it to petitioner would deprive him of the full measure
of his right to due process.17 Hence, preliminary investigation with regard to him
must be conducted.
We desagree with the Sandiganbayan's reliance on Section 27 of Republic Act
6770.18 This provision cannot justify the evasion of the requirement set forth in
the Rules of Court for conducting preliminary investigation. The law does not
sanction such interpretation, for it deals merely with the finality of orders,
directives and decisions of the Office of the Ombudsman -- not the deprivation of
the substantive right to a preliminary investigation. Moreover, petitioner cannot be
bound by the Ombudsman's January 15, 1998 Resolution, which recommended
the filing of charges. He was not a party to the case and was not accorded any
right to present evidence on his behalf.
In any event, even the Ombudsman agrees that petitioner was deprived of this
right and believes that the baisc rudiments of due process are complied
with."19 For its part, the Sandiganbayan opted to remain silent when asked by this
Court to comment on the Petition.
Dismissal
Not Justified
of
the
Charges
Petitioner also prays that the cases against him be dismissed for lack of
preliminary investigation.20 We disagree. In the first place, nowhere in the
Revised Rules of Criminal Procedure, or even the old Rules, is there any mention
that this lack is a ground for a motion to quash.21 Furthermore, it has been held
that responsibility for the "absence of preliminary investigation does not go to the
jurisdiction of the court but merely to the regularity of the proceedings."22 We
reiterate the following ruling of the Court in People v. Gomez:
"If there were no preliminary investigations and the defendants, before
entering their plea, invite the attention of the court of their absence, the
court, instead of dismissing the information, should conduct such
investigation, order the fiscal to conduct it or remand the case to the
inferior court so the the preliminary investigation may be conducted."23
In sum, Criminal Case No. 24524 must be suspended with respect to petitioner
even if the case is already undergoing trial, because "[t]o reach any other
conclusion here, that is, to hold that petitioner's rights to a preliminary

investigation and to bail were effectively obliterated to benefit from its own wrong or
culpable ommission and effectively to dilute important rights of accused persons wellnigh to the vanishing point."24
WHEREFORE, the Petition is partially GRANTED. The assailed Orders are
REVERSED, and the Office of the Ombudsman is hereby ORDERED to conduct
forthwith a preliminary investigation of the charge of violation of Section 3-a of RA
3019 against Petitioner Alvarez Aro Yusop. The trial on the merits of Criminal Case
No. 24524 shall be SUSPENDED in regard to petitioner until the conclusion of the
preliminary investigation. No pronouncement as to costs.
SO ORDERED.
Melo, Vitug, Gonzaga-Reyes, Sandoval-Gutierrez, JJ: concur.

SUPREME COURT
Baguio City
THIRD DIVISION
G.R. No. 130191 April 27, 1998
RODRIGO R. DUTERTE and BENJAMIN C. DE GUZMAN, petitioners,
vs.
THE HONORABLE SANDIGANBAYAN, respondent.
KAPUNAN, J.:
The right to a preliminary investigation is not a mere formal right; it is a
substantive right. To deny the accused of such right would be to deprive him of
due process.
In this special civil action for certiorari with preliminary injunction, petitioners
seek to set aside the Order of the Sandiganbayan dated 27 June 1997 denying the
Motion to Quash the information filed against them for violating Sec. 3(g) of R.A.
No. 3019, otherwise known as the Anti-Graft And Corrupt Practices Act.
Petitioners similarly impugn the Resolution of the Sandiganbayan dated 5 August
1997 which denied their Motion for Reconsideration thereof.
Pertinent to this case are the following facts:
In 1990, the Davao City Local Automation Project was launched by the city
government of Davao. The goal of said project was to make Davao City a leading
center for computer systems and technology development. It also aimed to provide
consultancy and training services and to assist all local government units in
Mindanao set up their respective computer systems.
To implement the project, a Computerization Program Committee, composed of
the following was formed:
Chairman : Atty. Benjamin C. de Guzman, City Administrator
Members : Mr. Jorge Silvosa, Acting City Treasurer
Atty. Victorino Advincula, City Councilor

Mr. Alexis Almendras, City Councilor
Atty. Onofre Francisco, City Legal Officer
Mr. Rufino Ambrocio, Jr., Chief of Internal Control Office
Atty. Mariano Kintanar, COA Resident Auditor. 1
The Committee's duty was to "conduct a thorough study of the different computers in
the market, taking into account the quality and acceptability of the products, the
reputation and track record of the manufacturers and/or their Philippine distributors,
the availability of the replacement parts and accessories in the Philippines, the
availability of service centers in the country that can undertake preventive maintenance
of the computer hardwares to ensure a long and uninterrupted use and, last but not the
least, the capability of the manufacturers and/or Philippine distributors to design and
put into place the computer system complete with the flow of paperwork, forms to
be used and personnel required." 2
Following these guidelines, the Committee recommended the acquisition of Goldstar
computers manufactured by Goldstar Information and Communication, Ltd., South
Korea and exclusively distributed in the Philippines by Systems Plus, Inc. (SPI).
After obtaining prior clearance from COA Auditor Kintanar, the Committee proceeded
to negotiate with SPI, represented by its President Rodolfo V. Jao and Executive Vice
President Manuel T. Asis, for the acquisition and installation of the computer hardware
and the training of personnel for the Electronic Data-Processing Center. The total
contract cost amounted to P11,056,810.00.
On 5 November 1990, the City Council (Sangguniang Panlungsod) of Davao
unanimously passed Resolution No. 1402 and Ordinance No. 173 approving the
proposed contract for computerization between Davao City and SPI. The Sanggunian,
likewise, authorized the City Mayor (petitioner Duterte) to sign the said contract for
and in behalf of Davao City. 3
20,550-91, was instituted before the Regional Trial Court of Davao City, Branch
12 by Dean Pilar Braga, Hospicio C. Conanan, Jr. and Korsung Dabaw
Foundation, Inc. against the petitioners, the City Council, various city officials and
SPI for the judicial declaration of nullity of the aforestated resolutions and
ordinances and the computer contract executed pursuant thereto.
On 22 February 1991, Goldstar, through its agent, Mr. S.Y. Lee sent a proposal to
petitioner Duterte for the cancellation of the computerization contract.
Consequently, on 8 April 1991, the Sanggunian issued Resolution No. 449 and
Ordinance No. 53 accepting Goldstar's offer to cancel the computerization
contract provided the latter return the advance payment of P1,748,521.58 to the
City Treasurer's Office within a period of one month. Petitioner Duterte, as city
mayor, was thus authorized to take the proper steps for the mutual cancellation of
the said contract and to sign all documents relevant thereto. 6
Pursuant to the aforestated authority, on 6 May 1991, petitioner Duterte, in behalf
of Davao City, and SPI mutually rescinded the contract and the downpayment was
duly refunded.
In the meantime, a Special Audit Team of the Commission on Audit was tasked to
conduct an audit of the Davao City Local Automation Project to determine if said
contract conformed to government laws and regulations.
On 31 May 1991, the team submitted its Special Audit Report (SAR) No. 91-05
recommending rescission of the subject contract. A copy of the report was sent to
petitioner Duterte by COA Chairman Eufemio C. Domingo on 7 June 1991. In the
latter's transmittal letter, Chairman Domingo summarized the findings of the
special audit team, thus:
On the same day, the Sanggunian issued Resolution No. 1403 and Ordinance No. 174,
the General Fund Supplemental Budget No. 07 for CY 1990 appropriating
P3,000,000.00 for the city's computerization project.
1. The award of the contract for the "Davao City Local Automation
Project" to Systems Plus, Inc., for P11,656,810 was done thru negotiated
contract rather than thru competitive public bidding in violation of
Sections 2 and 8 of PD 526. Moreover, there was no sufficient
appropriation for this particular contract in violation of Sec. 85 of PD
1445.
Given the go-signal, the contract was duly signed by the parties thereto and on 8
November 1990, petitioner City Administrator de Guzman released to SPI PNB Check
No. 65521 in the amount of P1,748,521.58 as downpayment.
2. Advance payment of P1.7M was made to Systems Plus, Inc. covering

15% of the contract cost of P11.6M in violation of Sec. 45 of PD 477 and
Sec. 88 of PD 1445.
On 27 November 1990, the Office of the Ombudsman-Mindanao received a lettercomplaint from a "concerned citizen," stating that "some city officials are going to
make a killing" in the transaction. 4 The complaint was docketed as OMB-MIN-900425. However, no action was taken thereon. 5
3. The cost of computer hardware and accessories under contract with

"Systems Plus, Inc. (SPI)" differed from the team's canvass by as much as
1200% or a total of P1.8M.
Thereafter, sometime in February 1991, a complaint docketed as Civil Case No.
4. The City had no Information Systems Plan (ISP) prior to the award of
the contract to SPI in direct violation of Malacaang Memo. Order No.

287 and NCC Memo. Circular 89-1 dated June 22, 1989. This omission
resulted in undue disadvantage to the City Government.
5. To remedy the foregoing deficiencies, the team recommends that the
contract with Systems Plus, Inc. be rescinded in view of the questionable
validity due to insufficient funding. Further, the provisions of NCC-MC 89-1
dated June 22, 1989 regarding procurement and/or installation of computer
hardware/system should be strictly adhered to. 7
The city government, intent on pursuing its computerization plan, decided to follow
the audit team's recommendation and sought the assistance of the National Computer
Center (NCC). After conducting the necessary studies, the NCC recommended the
acquisition of Philips computers in the amount of P15,792,150.00. Davao City
complied with the NCC's advice and hence, was finally able to obtain the needed
computers.
Subsequently, on 1 August 1991, the Anti-Craft League-Davao City Chapter, through
one Miguel C. Enriquez, filed an unverified complaint with the OmbudsmanMindanao against petitioners, the City Treasurer, City Auditor, the whole city
government of Davao and SPI. The League alleged that the respondents, in entering
into the computerization contract, violated R.A. No. 3019 (Anti-Graft and Corrupt
Practices Act), PD No. 1445 (Government Auditing Code of the Philippines), COA
circulars and regulations, the Revised Penal Code and other pertinent penal laws. The
case was docketed as OMB-3-91-1768. 8
On 9 October 1991, Graft Investigation Officer (GIO) Pepito A. Manriquez of the
Office of the Ombudsman sent a letter 9 to COA Chairman Domingo requesting the
Special Audit Team to submit their joint affidavit to substantiate the complaint in
compliance with Section 4, par. (a) of the Rules of Procedure of the Office of the
Ombudsman (A.O. No. 07).
On 14 October 1991, Judge Paul T. Arcangel, issued an Order dismissing Civil Case
No. 20,550-91. The dispositive portion reads, thus:
WHEREFORE, in view of all the foregoing, this case is hereby dismissed on
the ground of prematurity and that it has become moot and academic with the
mutual cancellation of the contract. The other claims of the parties are hereby
denied. No pronouncement as to costs.
SO ORDERED. 10
On 12 November 1991, Graft Investigator Manriquez issued an order in OMB-3-911768 directing petitioners, Jorge Silvosa (City Treasurer), Mariano Kintanar (City
Auditor) and Manuel T. Asis of SPI to:
. . . file in ten (10) days (1) their respective verified point-by-point comment
under oath upon every allegation of the complaint in Civil Case No. 20,550-
91 in the Regional Trial Court (RTC), Branch 12, Davao City "Dean Pilar
C. Braga, et al. vs. Hon. Rodrigo Duterte," for Judicial Declaration of
Nullity and Illegality of City Council of Davao Resolutions and
Ordinances, and the Computer Contract executed Pursuant Thereto, for
Recovery of Sum of Money, Professional Fees and Costs with
Injunctive Relief, including the Issuance of a Restraining Order and/or a
Writ of Preliminary Prohibitory Injunction in which they filed a motion to
dismiss, not an answer and (2) the respective comments, also under oath,
on the Special Audit Report No. 91-05, a copy of which is attached. 11
On 4 December 1991, the Ombudsman received the affidavits of the Special Audit
Team but failed to furnish petitioners copies thereof.
On 18 February 1992, petitioners submitted a manifestation adopting the
comments filed by their co-respondents Jorge Silvosa and Mariano Kintanar dated
25 November 1991 and 17 January 1992, respectively.
Four years after, or on 22 February 1996, petitioners received a copy of a
Memorandum prepared by Special Prosecution Officer I, Lemuel M. De Guzman
dated 8 February 1996 addressed to Ombudsman Aniano A. Desierto regarding
OMB-MIN-90-0425 and OMB-3-91-1768. Prosecutor De Guzman recommended
that the charges of malversation, violation of Sec. 3(e), R.A. No. 3019 and Art.
177, Revised Penal Code against petitioners and their co-respondents be
dismissed. He opined that any issue pertaining to unwarranted benefits or injury to
the government and malversation were rendered moot and academic by the mutual
rescission of the subject contract before the COA submitted its findings (SAR No.
91-05) or before the disbursement was disallowed. However, Prosecutor De
Guzman recommended that petitioners be charged under Sec. 3(g) of R.A. No.
3019 "for having entered into a contract manifestly and grossly disadvantageous to
the government, the elements of profit, unwarranted benefits or loss to
government being immaterial." 12
Accordingly, the following information dated 8 February 1996 was filed against
petitioners before the Sandiganbayan (docketed as Criminal Case No. 23193):
That on or about November 5, 1990, in the City of Davao, Philippines,
and within the jurisdiction of this Honorable Court, the above-named
accused, both public officers, accused Rodrigo R. Duterte being then the
City Mayor and accused Benjamin C. De Guzman being then the City
Administrator of Davao City, committing the crime herein charged in
relation to, while in the performance and taking advantage of their
official functions, and conspiring and confederating with each other, did
then and there willfully, unlawfully and criminally enter into a negotiated
contract for the purchase of computer hardware and accessories with the
Systems Plus, Incorporated for and in consideration of the amount of

PESOS: ELEVEN MILLION SIX HUNDRED FIFTY-SIX THOUSAND
EIGHT HUNDRED TEN (P11,656,810.00), which contract is manifestly and
grossly disadvantageous to the government, said accused knowing fully-well
that the said acquisition cost has been overpriced by as much as twelve
hundred (1200%) percent and without subjecting said acquisition to the
required public bidding.
CONTRARY TO LAW. 13
On 27 February 1996, petitioners filed a motion for reconsideration and on 29 March
1996, a Supplemental Motion for Reconsideration on the following grounds:
1. Petitioners were deprived of their right to a preliminary investigation, due
process and the speedy disposition of their case;
2. Petitioner Duterte acted in good faith and was clothed with authority to
enter into the subject contract;
3. There is no contract manifestly and grossly disadvantageous to the
government since the subject contract has been duly rescinded.
On 19 March 1996, the Ombudsman issued a Resolution denying petitioners' motion
for reconsideration.
On 18 June 1997, petitioners filed a Motion to Quash which was denied by the
Sandiganbayan in its Order dated 27 June 1997. The Sandiganbayan ruled:
It appears, however, that the accused were able to file motions for the
reconsideration of the Resolution authorizing the filing of the Information
herein with the Ombudsman in Manila. This would mean, therefore, that
whatever decision which might have occurred with respect to the preliminary
investigation would have been remedied by the motion for reconsideration in
the sense that whatever the accused had to say in their behalf, they were able
to do in that motion for reconsideration.
Considering the denial thereof by the Office of the Ombudsman, the Court
does not believe itself empowered to authorize a reinvestigation on the ground
of an inadequacy of the basic preliminary investigation nor with respect to a
dispute as to the proper appreciation by the prosecution of the evidence at that
time.
In view hereof, upon further representation by Atty. Medialdea that he
represents not only Mayor Duterte but City Administrator de Guzman as well,
upon his commitment, the arraignment hereof is now set for July 25, 1997 at
8:00 o'clock in the morning. 14
On 15 July 1997, petitioners moved for reconsideration of the above order but the
same was denied by the Sandiganbayan for lack of merit in its Resolution dated 5
August 1997. 15
Hence, the present recourse.
Petitioners allege that:
THE HONORABLE SANDIGANBAYAN COMMITTED GRAVE
ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN DENYING PETITIONERS' MOTION TO QUASH
AND MOTION FOR RECONSIDERATION, CONSIDERING THAT:
A
(1)
PETITIONERS
WERE
EFFECTIVELY
DEPRIVED OF THEIR RIGHT TO A PRELIMINARY
INVESTIGATION PURSUANT TO SEC. 4, RULE II
OF ADMINISTRATIVE ORDER NO. 07 (RULES OF
PROCEDURE OF THE OFFICE OF THE
OMBUDSMAN); AND
(2)
ASSUMING
THAT A PRELIMINARY
INVESTIGATION WAS PROPERLY CONDUCTED,
THERE WAS AN INORDINATE DELAY IN
TERMINATING THE SAME THEREBY DEPRIVING
THEM OF THEIR RIGHT TO DUE PROCESS AND
SPEEDY DISPOSITION OF THE CASE.
B
THERE IS NO SUFFICIENT BASIS, IN FACT AND IN LAW, TO
CHARGE PETITIONERS DUTERTE AND DE GUZMAN OF
VIOLATING SEC. 3 (G) OF R.A. 3019 IN THAT:
(1) PETITIONER DUTERTE ACTED IN GOOD
FAITH AND WAS CLOTHED WITH FULL LEGAL
AUTHORITY FROM THE CITY COUNCIL TO
ENTER INTO A CONTRACT WITH SYSTEMS
PLUS, INC.;
(2) THERE IS NO CONTRACT MANIFESTLY AND
GROSSLY
DISADVANTAGEOUS
TO
THE
GOVERNMENT TO SPEAK OF AS THE SAME HAS
BEEN RESCINDED AND NO DAMAGE WAS
SUFFERED BY THE CITY GOVERNMENT;
(3) ASSUMING THAT THE CONTRACT WAS NOT
RESCINDED,
THE
SAME
CANNOT
BE
CONSIDERED AS MANIFESTLY AND GROSSLY

DISADVANTAGEOUS TO THE GOVERNMENT. 16
On 4 September 1997, the Court issued a Temporary Restraining Order enjoining the
Sandiganbayan from further proceeding with Criminal Case No. 23193.
The Court finds the petition meritorious.
I
We have judiciously studied the case records and we find that the preliminary
investigation of the charges against petitioners has been conducted not in the manner
laid down in Administrative Order No. 07.
In the 12 November 1991 Order of Graft Investigator Manriquez, petitioners were
merely directed to submit a point-by-point comment under oath on the allegations in
Civil Case No. 20,550-91 and on SAR No. 91-05. The said order was not accompanied
by a single affidavit of any person charging petitioners of any offense as required by
law. 17 They were just required to comment upon the allegations in Civil Case No.
20,550-91 of the Regional Trial Court of Davao City which had earlier been dismissed
and on the COA Special Audit Report. Petitioners had no inkling that they were being
subjected to a preliminary investigation as in fact there was no indication in the order
that a preliminary investigation was being conducted. If Graft Investigator Manriquez
had intended merely to adopt the allegations of the plaintiffs in the civil case or the
Special Audit Report (whose recommendation for the cancellation of the contract in
question had been complied with) as his bases for criminal prosecution, then the
procedure was plainly anomalous and highly irregular. As a consequence, petitioners'
constitutional right to due process was violated.
Sections (2) and (4), Rule II of Administrative Order No. 07 (Rules of Procedure of the
Office of the Ombudsman) provide:
Sec. 2. Evaluation. Upon evaluating the complaint, the investigating
officer shall recommend whether or not it may be:
a) dismissed outright for want of palpable merit;
b) referred to respondent for comment;
c) endorsed to the proper government office or agency which has jurisdiction
over the case;
d) forwarded to the appropriate office or official for fact-finding investigation;
e) referred for administrative adjudication; or
f) subjected to a preliminary investigation
xxx xxx xxx
Sec. 4. Procedure. The preliminary investigation of cases falling under the
jurisdiction of the Sandiganbayan and Regional Trial Courts shall be

conducted in the manner prescribed in Section 3, Rule 112 of the Rules of
Court, subject to the following provisions:
a) If the complaint is not under oath or is based only on official reports,
the investigating officer shall require the complainant or supporting
witnesses to execute affidavits to substantiate the complaints.
b) After such affidavits have been secured, the investigating officer shall
issue an order, attaching thereto a copy of the affidavits and other
supporting documents, directing the respondent to submit, within ten (10)
days from receipt thereof, his counter-affidavits and controverting
evidence with proof of service thereof on the complainant. The
complainant may file reply affidavits within ten (10) days after service of
the counter-affidavits.
c) If the respondent does not file a counter-affidavit, the investigating
officer may consider the comment filed by him, if any, as his answer to
the complaint. In any event, the respondent shall have access to the
evidence on record.
d) No motion to dismiss shall be allowed except for lack of jurisdiction.
Neither may a motion for a bill of particulars be entertained. If
respondent desires any matter in the complainant's affidavit to be
clarified, the particularization thereof may be done at the time of
clarificatory questioning in the manner provided in paragraph (f) of this
section.
e) If the respondent cannot be served with the order mentioned in
paragraph 6 hereof, or having been served, does not comply therewith,
the complaint shall be deemed submitted for resolution on the basis of the
evidence on record.
f) If, after the filing of the requisite affidavits and their supporting
evidences, there are facts material to the case which the investigating
officer may need to be clarified on, he may conduct a clarificatory
hearing during which the parties shall be afforded the opportunity to be
present but without the right to examine or cross-examine the witness
being questioned. Where the appearance of the parties or witnesses is
impracticable, the clarificatory questioning may be conducted in writing,
whereby the questions desired to be asked by the investigating officer or
a party shall be reduced into writing and served on the witness concerned
who shall be required to answer the same in writing and under oath.
g) Upon the termination of the preliminary investigation, the
investigating officer shall forward the records of the case together with

his resolution to the designated authorities for their appropriate action thereon.
No information may be filed and no complaint may be dismissed without the
written authority or approval of the Ombudsman in cases falling within the
jurisdiction of the Sandiganbayan, or the proper Deputy Ombudsman in all
other cases.
In what passes off as application of the foregoing rules, all that petitioners were asked
to do was merely to file their comment upon every allegation of the complaint in Civil
Case No. 20,550-91 in the Regional Trial Court (RTC) and on the COA Special Audit
Report. The comment referred to in Section 2(b) Rule II, of A.O. No. 07 is not part of
or is equivalent to the preliminary investigation contemplated in Sec. 4, Rule II, of the
same Administrative Order. A plain reading of Sec. 2 would convey the idea that upon
evaluation of the complaint, the investigating officer may recommend its outright
dismissal for palpable want of merit; otherwise, or if the complaint appears to have
some merit, the investigator may recommend action under any of those enumerated
from (b) to (f), that is, the investigator may recommend that the complaint be: referred
to respondent for comment, or endorsed to the proper government office or agency
which has jurisdiction over the case; or forwarded to the appropriate office or official
for fact-finding investigation; or referred for administrative adjudication; or subjected
to preliminary investigation. Now, if the investigator opts to recommend the filing of a
comment by the respondent, it is presumably because he needs more facts and
information for further evaluation of the merits of the complaint. That being done, the
investigating officer shall again recommend any one of the actions enumerated in
Section 2, which include the conduct of a preliminary investigation.
A preliminary investigation, on the other hand, takes on an adversarial quality and an
entirely different procedure comes into play. This must be so because the purpose of a
preliminary investigation or a previous inquiry of some kind, before an accused person
is placed on trial, is to secure the innocent against hasty, malicious and oppressive
prosecution, and to protect him from an open and public accusation of a crime, from
the trouble, expenses and anxiety of public trial. 18 It is also intended to protect the
state from having to conduct useless and expensive trials. 19 While the right is
statutory rather than constitutional in its fundament, it is a component part of due
process in criminal justice. The right to have a preliminary investigation conducted
before being bound over to trial for a criminal offense and hence formally at risk of
incarceration or some other penalty, is not a mere formal or technical right; it is a
substantive right. To deny the accused's claim to a preliminary investigation would be
to deprive him of the full measure of his right to due process. 20
Note that in preliminary investigation, if the complaint is unverified or based only on
official reports (which is the situation obtaining in the case at bar), the complainant is
required to submit affidavits to substantiate the complaint. The investigating officer,
thereafter, shall issue an order, to which copies of the complaint-affidavit are attached,
requiring the respondent to submit his counter-affidavits. In the preliminary
investigation, what the respondent is required to file is a counter-affidavit, not a

comment. It is only when the respondent fails to file a counter-affidavit may the
investigating officer consider the respondent's comment as the answer to the
complaint. Against the foregoing backdrop, there was a palpable non-observance
by the Office of the Ombudsman of the fundamental requirements of preliminary
investigation.
Apparently, in the case at bar, the investigating officer considered the filing of
petitioner's comment as a substantial compliance with the requirements of a
preliminary investigation. Initially, Graft Investigator Manriquez directed the
members of the Special Audit Team on 9 October 1991 to submit their affidavits
relative to SAR No. 91-05. However, on 12 November 1991, before the affidavits
were submitted, Manriquez required petitioners to submit their respective
comments on the complaint in the civil case and on Special Audit Report (SAR)
91-05. Even when the required affidavits were filed by the audit team on 4
December 1991, petitioners were still not furnished copies thereof. The
Ombudsman contends that failure to provide petitioners the complaint-affidavits is
immaterial since petitioners were well aware of the existence of the civil
complaint and SAR No. 91-05. We find the Ombudsman's reasoning flawed. The
civil complaint and the COA Special Audit Report are not equivalent to the
complaint-affidavits required by the rules. Moreover, long before petitioners were
directed to file their comments, the civil complaint (Civil Case No. 20,550-91)
was rendered moot and academic and, accordingly, dismissed following the
mutual cancellation of the computerization contract. In SAR No. 91-05, on the
other hand, petitioners were merely advised to rescind the subject contract
which was accomplished even before the audit report came out. In light of these
circumstances, the Court cannot blame petitioners for being unaware of the
proceedings conducted against them.
In Olivas vs. Office of the Ombudsman, 21 this Court, speaking through Justice
Vicente V. Mendoza, emphasized that it is mandatory requirement for the
complainant to submit his affidavit and those of his witnesses before the
respondent can be compelled to submit his counter-affidavits and other supporting
documents. Thus:
Even in investigations looking to the prosecution of a party, Rule I, 3
can only apply to the general criminal investigation, which in the case at
bar was already conducted by the PCGG. But after the Ombudsman and
his deputies have gathered evidence and their investigation has ceased to
be a general exploratory one and they decide to bring the action against a
party, their proceedings become adversary and Rule II 4(a) then applies.
This means that before the respondent can be required to submit counteraffidavits and other supporting documents, the complaint must submit his
affidavit and those of his witnesses. This is true not only of prosecutions

of graft cases under Rep. Act No. 3019 but also of actions for the recovery of
unexplained wealth under Rep. Act No. 1379, because 2 of this latter law
requires that before a petition is filed there must be a "previous inquiry similar
to preliminary investigation in criminal cases."
Indeed, since a preliminary investigation is designed to screen cases for trial,
only evidence may be considered. While reports and even raw information
may justify the initiation of an investigation, the stage of preliminary
investigation can be held only after sufficient evidence has been gathered and
evaluated warranting the eventual prosecution of the case in court. As this
Court held in Cojuangco, Jr. v. PCGG:
Although such a preliminary investigation is not a trial and
is not intended to usurp the function of the trial court, it is
not a casual affair. The officer conducting the same
investigates or inquires into the facts concerning the
commission of the crime with the end in view of
determining whether or not an information may be prepared
against the accused. Indeed, a preliminary investigation is in
effect a realistic judicial appraisal of the merits of the case.
Sufficient proof of the guilt of the accused must be adduced
so that when the case is tried, the trial court may not be
bound as a matter of law to order an acquittal. A preliminary
investigation has then been called a judicial inquiry. It is a
judicial proceeding. An act becomes judicial when there is
opportunity to be heard and for the production and weighing
of evidence, and a decision is rendered thereof.
II
Compounding the deprivation of petitioners of their right to a preliminary investigation
was the undue and unreasonable delay in the termination of the irregularly conducted
preliminary investigation. Petitioners' manifestation adopting the comments of their
co-respondents was filed on 18 February 1992. However, it was only on 22 February
1996 or four (4) years later, that petitioners received a memorandum dated 8 February
1996 submitted by Special Prosecutor Officer I Lemuel M. De Guzman recommending
the filing of information against them for violation of Sec. 3(g) of R.A. No. 3019
(Anti-Graft and Corrupt Practices Act). The inordinate delay in the conduct of the
"preliminary investigation" infringed upon their constitutionally guaranteed right to a
speedy disposition of their case. 22 In Tatad vs. Sandiganbayan, 23 we held that an
undue delay of close to three (3) years in the termination of the preliminary
investigation in the light of the circumstances obtaining in that case warranted the
dismissal of the case:
We find the long delay in the termination of the preliminary investigation by
the Tanodbayan in the instant case to be violative of the constitutional

right of the accused to due process. Substantial adherence to the
requirements of the law governing the conduct of preliminary
investigation, including substantial compliance with the time limitation
prescribed by the law for the resolution of the case by the prosecutor, is
part of the procedural due process constitutionally guaranteed by the
fundamental law. Not only under the broad umbrella of the due process
clause, but under the constitutional guarantee of "speedy disposition" of
cases as embodied in Section 16 of the Bill of Rights (both in the 1973
and 1987 Constitution), the inordinate delay is violative of the petitioner's
constitutional rights. A delay of close to three (3) years can not be
deemed reasonable or justifiable in the light of the circumstances
obtaining in the case at bar. We are not impressed by the attempt of the
Sandiganbayan to sanitize the long delay by indulging in the speculative
assumption that "the delay may be due to a painstaking and grueling
scrutiny by the Tanodbayan as to whether the evidence presented during
the preliminary investigation merited prosecution of a former highranking government official." In the first place, such a statement suggests
a double standard of treatment, which must be emphatically rejected.
Secondly, three out of the five charges against the petitioner were for his
alleged failure to file his sworn statement of assets and liabilities required
by Republic Act No. 3019, which certainly did not involve complicated
legal and factual issues necessitating such "painstaking and grueling
scrutiny" as would justify a delay of almost three years in terminating the
preliminary investigation. The other two charges relating to alleged
bribery and alleged giving of unwarranted benefits to a relative, while
presenting more substantial legal and factual issues, certainly do not
warrant or justify the period of three years, which it took the Tanodbayan
to resolve the case.
It has been suggested that the long delay in terminating the preliminary
investigation should not be deemed fatal, for even the complete absence
of a preliminary investigation does not warrant dismissal of the
information. True but the absence of a preliminary investigation can
be corrected by giving the accused such investigation. But an undue delay
in the conduct of the preliminary investigation can not be corrected, for
until now, man has not yet invented a device for setting back time.
In the recent case of Angchangco, Jr. vs. Ombudsman, 24 the Court upheld
Angchangco's right to the speedy disposition of his case. Angchangco was a
sheriff in the Regional Trial Court of Agusan del Norte and Butuan City. In 1990
criminal complaints were filed against him which remained pending before the
Ombudsman even after his retirement in 1994. The Court thus ruled:

Here, the Office of the Ombudsman, due to its failure to resolve the criminal
charges against petitioner for more than six years, has transgressed on the
constitutional right of petitioner to due process and to a speedy disposition of
the cases against him, as well as the Ombudsman's own constitutional duty to
act promptly on complaints filed before it. For all these past 6 years, petitioner
has remained under a cloud, and since his retirement in September 1994, he
has been deprived of the fruits of his retirement after serving the government
for over 42 years all because of the inaction of respondent Ombudsman. If we
wait any longer, it may be too late for petitioner to receive his retirement
benefits, not to speak of clearing his name. This is a case of plain injustice
which calls for the issuance of the writ prayed for. 25
We are not persuaded by the Ombudsman's argument that the Tatad ruling does not
apply to the present case which is not politically motivated unlike the former, pointing
out the following findings of the Court in the Tatad decision:
A painstaking review of the facts can not but leave the impression that
political motivations played a vital role in activating and propelling the
prosecutorial process in this case. Firstly, the complaint came to life, as it
were, only after petitioner Tatad had a falling out with President Marcos.
Secondly, departing from established procedures prescribed by law for
preliminary investigation, which require the submission of affidavits and
counter-affidavits by the complainant and the respondent and their witnesses,
the Tanodbayan referred the complaint to the Presidential Security Command
for fact-finding investigation and report.
We find such blatant departure from the established procedure as a dubious,
but revealing attempt to involve an office directly under the President in the
prosecutorial process, lending credence to the suspicion that the prosecution
was politically motivated. We cannot emphasize too strongly that prosecutors
should not allow, and should avoid, giving the impression that their noble
office is being used or prostituted, wittingly or unwittingly, for political ends,
or other purposes alien to, or subversive of, the basic and fundamental
objective observing the interest of justice evenhandedly, without fear or favor
to any and all litigants alike whether rich or poor, weak or strong, powerless
or mighty. Only by strict adherence to the established procedure may be
public's perception of the impartiality of the prosecutor be enhanced. 26
The Ombudsman endeavored to distinguish the present suit from the Angchangco case
by arguing that in the latter, Angchangco filed several motions for early resolution,
implying that in the case at bar petitioners were not as vigilant in asserting or
protecting their rights.
We disagree. The constitutional right to speedy disposition of cases does not come into
play only when political considerations are involved. The Constitution makes no such
distinction. While political motivation in Tatad may have been a factor in the
undue delay in the termination of the preliminary investigation therein to justify
the invocation of their right to speedy disposition of cases, the particular facts of
each case must be taken into consideration in the grant of the relief sought. In the
Tatad case, we are reminded:
In a number of cases, this Court has not hesitated to grant the so-called
"radical relief" and to spare the accused from undergoing the rigors and
expense of a full-blown trial where it is clear that he has been deprived of
due process of law or other constitutionally guaranteed rights. Of course,
it goes without saying that in the application of the doctrine enunciated in
those cases, particular regard must be taken of the facts and
circumstances peculiar to its case. 27
In Alviso vs. Sandiganbayan, 28 the Court observed that the concept of speedy
disposition of cases "is a relative term and must necessarily be a flexible concept"
and that the factors that may be considered and balanced are the "length of the
delay, the assertion or failure to assert such right by the accused, and the prejudice
caused by the delay."
Petitioners in this case, however, could not have urged the speedy resolution of
their case because they were completely unaware that the investigation against
them was still on-going. Peculiar to this case, we reiterate, is the fact that
petitioners were merely asked to comment, and not file counter-affidavits which is
the proper procedure to follow in a preliminary investigation. After giving their
explanation and after four long years of being in the dark, petitioners, naturally,
had reason to assume that the charges against them had already been dismissed.
On the other hand, the Office of the Ombudsman failed to present any plausible,
special or even novel reason which could justify the four-year delay in terminating
its investigation. Its excuse for the delay the many layers of review that the
case had to undergo and the meticulous scrutiny it had to entail has lost its
novelty and is no longer appealing, as was the invocation in the Tatad case. The
incident before us does not involve complicated factual and legal issues, specially
in view of the fact that the subject computerization contract had been mutually
cancelled by the parties thereto even before the Anti-Graft League filed its
complaint.
The Office of the Ombudsman capitalizes on petitioners' three motions for
extension of time to file comment which it imputed for the delay. However, the
delay was not caused by the motions for extension. The delay occurred after
petitioners filed their comment. Between 1992 to 1996, petitioners were under no
obligation to make any move because there was no preliminary investigation
within the contemplation of Section 4, Rule II of A.O. No. 07 to speak of in the
first place.

III
Finally, under the facts of the case, there is no basis in law or in fact to charge
petitioners for violation of Sec. 3(g) of R.A. No. 3019. To establish probable cause
against the offender for violation of Sec. 3(g), the following elements must be present:
(1) the offender is a public officer; (2) he entered into a contract or transaction in
behalf of the government; and (3) the contract or transaction is grossly and manifestly
disadvantageous to the government. The second element of the crime that the
accused public officers entered into a contract in behalf of the government is absent.
The computerization contract was rescinded on 6 May 1991 before SAR No. 91-05
came out on 31 May 1991 and before the Anti-Graft League filed its complaint with
the Ombudsman on 1 August 1991. Hence, at that time the Anti-Graft League
instituted their complaint and the Ombudsman issued its Order on 12 November 1991,
there was no longer any contract to speak of. The contract, after 6 May 1991 became in
contemplation of law, non-existent, as if no contract was ever executed.
WHEREFORE, premises considered, the petition is GRANTED and Criminal Case
No. 23193 is hereby DISMISSED. The temporary restraining order issued on 4
September 1997 is made PERMANENT.
SO ORDERED.
Narvasa, C.J., Romero and Purisima, JJ., concur.
On 20 October 1998 private respondent presented the check for payment. The
drawee bank dishonored the check because it was drawn against insufficient funds
(DAIF).
On 16 March 1999 private respondent filed a complaint-affidavit with the City
Prosecutor of Cavite City.1 In addition to the details of the issuance and the
dishonor of the check, she also alleged that she made repeated demands on
petitioner to make arrangements for the payment of the check within five (5)
working days after receipt of notice of dishonor from the bank, but that petitioner
failed to do so.
Petitioner then submitted her own counter-affidavit asserting in her defense that
presentment of the check within ninety (90) days from due date thereof was an
essential element of the offense of violation of BP 22. Since the check was
presented for payment 166 days after its due date, it was no longer punishable
under BP 22 and therefore the complaint should be dismissed for lack of merit.
She also claimed that she already assigned private respondent her condominium
unit at Antel Seaview Condominium, Roxas Boulevard, as full payment for the
bounced checks thus extinguishing her criminal liability.
On 22 April 1999, the investigating prosecutor issued a resolution recommending
the filing of an Informationagainst petitioner for violation of BP 22, which was
approved by the City Prosecutor.

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 143375
on Metrobank Cavite City Branch. According to private respondent, petitioner

assured her that the check would be sufficiently funded on the maturity date.
July 6, 2001
RUTH D. BAUTISTA, petitioner,

vs.
COURT OF APPEALS, OFFICE OF THE REGIONAL STATE PROSECUTOR,
REGION IV, and SUSAN ALOA,respondents.
BELLOSILLO, J.:
This petition for certiorari presents a new dimension in the ever controversial Batas
Pambansa Bilang 22 or The Bouncing Checks Law. The question posed is whether the
drawer of a check which is dishonored due to lack of sufficient funds can be
prosecuted under BP 22 even if the check is presented for payment after ninety (90)
days from its due date. The burgeoning jurisprudence on the matter appears silent on
this point.
Sometime in April 1998 petitioner Ruth D. Bautista issued to private respondent Susan
Aloa Metrobank Check No. 005014037 dated 8 May 1998 for P1,500,000.00 drawn
On 13 May 1999 petitioner filed with the Office of the Regional State Prosecutor
(ORSP) for Region IV a petition for review of the 22 April 1999 resolution. The
ORSP denied the petition in a one (1)-page resolution dated 25 June 1999. On 5
July 1999 petitioner filed a motion for reconsideration, which the ORSP also
denied on 31 August 1999. According to the ORSP, only resolutions of
prosecutors dismissing a criminal complaint were cognizable for review by that
office, citing Department Order No. 223.
On 1 October 1999 petitioner filed with the Court of Appeals a petition for review
of the resolution of the ORSP, Region IV, dated 22 April 1999 as well as the order
dated 31 August 1999 denying reconsideration. The appellate court issued the
assailed Resolution dated 26 October 1999 denying due course outright and
dismissing the petition.2 According to respondent appellate court A petition for review is appropriate under Rule 42 (1997 Rules of Civil
Procedure) from a decision of the Regional Trial Court rendered in the
exercise of its appellate jurisdiction, filed in the Court of Appeals. Rule
43 x x x provides for appeal, via a petition for review x x x from judgment
or final orders of the Court of Tax Appeals and Quasi-Judicial Agencies

to the Court of Appeals. Petitioner's "Petition for Review" of the ORSP
resolution does not fall under any of the agencies mentioned in Rule 43 x x x x
It is worth to note that petitioner in her three (3) assigned errors charged the
ORSP of "serious error of law and grave abuse of discretion." The grounds
relied upon by petitioner are proper in a petition for certiorari x x x x Even if
We treat the "Petition for Review" as a petition for certiorari, petitioner failed
to allege the essential requirements of a special civil action. Besides, the
remedy of petitioner is in the Regional Trial Court, following the doctrine of
hierarchy of courts x x x x (italics supplied)
First, some ground rules. This case went to the Court of Appeals by way of petition for
review under Rule 43 of the 1997 Rules of Civil Procedure. Rule 43 applies to
"appeals from judgments or final orders of the Court of Tax Appeals and from awards,
judgments, final orders or resolutions of or authorized by any quasi-judicial agency in
the exercise of quasi-judicial functions."3
Petitioner submits that a prosecutor conducting a preliminary investigation performs a
quasi-judicial function, citing Cojuangco v. PCGG,4 Koh v. Court of
Appeals,5 Andaya v. Provincial Fiscal of Surigao del Norte6 andCrespo v. Mogul.7 In
these cases this Court held that the power to conduct preliminary investigation is
quasi-judicial in nature. But this statement holds true only in the sense that, like quasijudicial bodies, the prosecutor is an office in the executive department exercising
powers akin to those of a court. Here is where the similarity ends.
A closer scrutiny will show that preliminary investigation is very different from other
quasi-judicial proceedings. A quasi-judicial body has been defined as "an organ of
government other than a court and other than a legislature which affects the rights of
private parties through either adjudication or rule-making."8
In Luzon Development Bank v. Luzon Development Bank Employees,9 we held that a
voluntary arbitrator, whether acting solely or in a panel, enjoys in law the status of a
quasi-judicial agency, hence his decisions and awards are appealable to the Court of
Appeals. This is so because the awards of voluntary arbitrators become final and
executory upon the lapse of the period to appeal;10 and since their awards determine
the rights of parties, their decisions have the same effect as judgments of a court.
Therefore, the proper remedy from an award of a voluntary arbitrator is a petition for
review to the Court of Appeals, following Revised Administrative Circular No. 1-95,
which provided for a uniform procedure for appellate review of all adjudications of
quasi-judicial entities, which is now embodied in Rule 43 of the 1997 Rules of Civil
Procedure.
On the other hand, the prosecutor in a preliminary investigation does not determine the
guilt or innocence of the accused. He does not exercise adjudication nor rule-making
functions. Preliminary investigation is merely inquisitorial, and is often the only means
of discovering the persons who may be reasonably charged with a crime and to enable
the fiscal to prepare his complaint or information. It is not a trial of the case on the
merits and has no purpose except that of determining whether a crime has been
committed and whether there is probable cause to believe that the accused is guilty
thereof.11 While the fiscal makes that determination, he cannot be said to be
acting as a quasi-court, for it is the courts, ultimately, that pass judgment on the
accused, not the fiscal.12
Hence, the Office of the Prosecutor is not a quasi-judicial body; necessarily, its
decisions approving the filing of a criminal complaint are not appealable to the
Court of Appeals under Rule 43. Since the ORSP has the power to resolve appeals
with finality only where the penalty prescribed for the offense does not
exceed prision correccional, regardless of the imposable fine,13 the only remedy
of petitioner, in the absence of grave abuse of discretion, is to present her defense
in the trial of the case.
Besides, it is well-settled that the courts cannot interfere with the discretion of the
fiscal to determine the specificity and adequacy of the offense charged. He may
dismiss the complaint forthwith if he finds it to be insufficient in form or
substance or if he finds no ground to continue with the inquiry; or, he may
otherwise proceed with the investigation if the complaint is, in his view, in due
and proper form.14
In the present recourse, notwithstanding the procedural lapses, we give due course
to the petition, in view of the novel legal question involved, to prevent further
delay of the prosecution of the criminal case below, and more importantly, to
dispel any notion that procedural technicalities are being used to defeat the
substantive rights of petitioner.
Petitioner is accused of violation of BP 22 the substantive portion of which reads Section 1. Checks without sufficient funds. - Any person who makes or
draws and issues any check to apply on account or for value, knowing at
the time of issue that he does not have sufficient funds in or credit with
the drawee bank for the payment of such in full upon presentment, which
check is subsequently dishonored by the drawee bank for insufficiency of
funds or credit or would have been dishonored for the same reason had
not the drawer, without any valid reason, ordered the bank to stop
payment, shall be punished by imprisonment of not less than thirty (30)
days but not more than one (1) year or by a fine of not less than but not
more than double the amount of the check which fine shall in no case
exceed Two Hundred Thousand Pesos, or both such fine and
imprisonment at the discretion of the court.
The same penalty shall be imposed upon any person who, having
sufficient funds in or credit with the drawee bank when he makes or
draws and issues a check, shall fail to keep sufficient funds or to

maintain a credit to cover the full amount of the check if presented within a
period of ninety (90) days from the date appearing thereon, for which reason
it is dishonored by the drawee bank x x x x (italics supplied).
An analysis of Sec. 1 shows that The Bouncing Checks Law penalizes two (2) distinct
acts: First, making or drawing and issuing any check to apply on account or for value,
knowing at the time of issue that the drawer does not have sufficient funds in or credit
with the drawee bank; and, second, having sufficient funds in or credit with the drawee
bank shall fail to keep sufficient funds or to maintain a credit to cover the full amount
of the check if presented within a period of ninety (90) days from the date appearing
thereon, for which reason it is dishonored by the drawee bank.15
In the first paragraph, the drawer knows that he does not have sufficient funds to cover
the check at the time of its issuance, while in the second paragraph, the drawer has
sufficient funds at the time of issuance but fails to keep sufficient funds or maintain
credit within ninety (90) days from the date appearing on the check. In both instances,
the offense is consummated by the dishonor of the check for insufficiency of funds or
credit.
The check involved in the first offense is worthless at the time of issuance since the
drawer had neither sufficient funds in nor credit with the drawee bank at the time,
while that involved in the second offense is good when issued as drawer had sufficient
funds in or credit with the drawee bank when issued.16 Under the first offense, the
ninety (90)-day presentment period is not expressly provided, while such period is an
express element of the second offense.17
From the allegations of the complaint, it is clear that petitioner is being prosecuted for
violation of the first paragraph of the offense.
Petitioner asserts that she could not be prosecuted for violation of BP 22 on the simple
ground that the subject check was presented 166 days after the date stated thereon. She
cites Sec. 2 of BP 22 which reads Sec. 2. Evidence of knowledge of insufficient funds. - The making, drawing
and issuance of a check payment which is refused by the drawee because of
insufficient funds in or credit with such bank, when presented within ninety
(90) days from the date of the check, shall be prima facie evidence of
knowledge of such insufficiency of funds or credit unless such maker or
drawer pays the holder thereof the amount due thereon, or makes
arrangements for payment in full by the drawee of such check within five (5)
banking days after receiving notice that such check has not been paid by the
drawee (italics supplied).
Petitioner interprets this provision to mean that the ninety (90)-day presentment period
is an element of the offenses punished in BP 22. She asseverates that "for a maker or
issuer of a check to be covered by B.P. 22, the check issued by him/her is one that is
dishonored when presented for payment within ninety (90) days from date of the
check. If the dishonor occurred after presentment for payment beyond the ninety
(90)-day period, no criminal liability attaches; only a civil case for collection of
sum of money may be filed, if warranted." To bolster this argument, she relies on
the view espoused by Judge David G. Nitafan in his treatise - 18
Although evidentiary in nature, section 2 of the law must be taken as
furnishing an additional element of the offense defined in the first
paragraph of section 1 because it provides for the evidentiary fact of
"knowledge of insufficiency of funds or credit" which is an element of the
offense defined in said paragraph; otherwise said provision of section 2
would be rendered without meaning and nugatory. The rule of statutory
construction is that the parts of a statute must be read together in such a
manner as to give effect to all of them and that such parts shall not be
construed as contradicting each other. The same section cannot be
deemed to supply an additional element for the offense under the second
paragraph of section 1 because the 90-day presentment period is already
a built-in element in the definition of said offense (italics supplied).
We are not convinced. It is fundamental that every element of the offense must be
alleged in the complaint or information, and must be proved beyond reasonable
doubt by the prosecution. What facts and circumstances are necessary to be stated
must be determined by reference to the definitions and the essentials of the
specific crimes.19
The elements of the offense under BP 22 are (a) the making, drawing and issuance
of any check to apply to account or for value; (b) the maker, drawer or issuer
knows at the time of issue that he does not have sufficient funds in or credit with
the drawee bank for the payment of such check in full upon its presentment; and,
(c) the check is subsequently dishonored by the drawee bank for insufficiency of
funds or credit or would have been dishonored for the same reason had not the
drawer, without any valid reason, ordered the bank to stop payment.20
The ninety (90)-day period is not among these elements. Section 2 of BP 22 is
clear that a dishonored check presented within the ninety (90)-day period creates
a prima facie presumption of knowledge of insufficiency of funds, which is an
essential element of the offense. Since knowledge involves a state of mind
difficult to establish, the statute itself creates a prima facie presumption of the
existence of this element from the fact of drawing, issuing or making a check, the
payment of which was subsequently refused for insufficiency of funds.21 The
termprima facie evidence denotes evidence which, if unexplained or
uncontradicted, is sufficient to sustain the proposition it supports or to establish
the facts, or to counterbalance the presumption of innocence to warrant a
conviction.22

The presumption in Sec. 2 is not a conclusive presumption that forecloses or precludes
the presentation of evidence to the contrary.23 Neither does the term prima
facie evidence preclude the presentation of other evidence that may sufficiently prove
the existence or knowledge of insufficiency of funds or lack of credit. Surely, the law
is not so circumscribed as to limit proof of knowledge exclusively to the dishonor of
the subject check when presented within the prescribed ninety (90) day period. The
deliberations on the passage of BP 22 (then known as Cabinet Bill No. 9) between the
author, former Solicitor General Estelito P. Mendoza, and Bataan Assemblyman Pablo
Roman prove insightful MR. ROMAN: x x x x Under Section 1, who is the person who may be liable
under this Section? Would it be the maker or the drawer? How about the
endorser, Mr. Speaker?
MR. MENDOZA: Liable.
MR. ROMAN: The endorser, therefore, under Section 1 is charged with the
duty of knowing at the time he endorses and delivers a check . . . .
MR. MENDOZA: If the endorser is charged for violation of the Act then the
fact of knowledge must be proven by positive evidence because the
presumption of knowledge arises only against the maker or the drawer. It
does not arise as against endorser under the following section (italics
supplied).
MR. ROMAN: But under Section 1, it says here: "Any person who shall make
or draw or utter or deliver any check." The preposition is disjunctive, so that
any person who delivers any check knowing at the time of such making or
such delivery that the maker or drawer has no sufficient funds would be liable
under Section 1.
MR. MENDOZA: That is correct Mr. Speaker. But, as I said, while there is
liability even as against endorser, for example, the presumption of knowledge
of insufficient funds arises only against the maker or drawer under Section 2.
MR. ROMAN: Yes, Mr. Speaker. It is true; however, under Section 1,
endorsers of checks or bills of exchange would find it necessary since they
may be charged with the knowledge at the time they negotiate bills of
exchange they have no sufficient funds in the bank or depository.
MR. MENDOZA: In order that an endorser may be held liable, there must be
evidence showing that at the time he endorsed the check he was aware that
the drawer would not have sufficient funds to cover the check upon
presentation. That evidence must be presented by the prosecution. However, if
the one changed is the drawer, then that evidence need not be presented by
the prosecution because that fact would be established by presumption under
Section 2 (italics supplied).24
An endorser who passes a bad check may be held liable under BP 22, even though
the presumption of knowledge does not apply to him, if there is evidence that at
the time of endorsement, he was aware of the insufficiency of funds. It is evident
from the foregoing deliberations that the presumption in Sec. 2 was intended to
facilitate proof of knowledge and not to foreclose admissibility of other evidence
that may also prove such knowledge. Thus, the only consequence of the failure to
present the check for payment within ninety (90) days from the date stated is that
there arises no prima facie presumption of knowledge of insufficiency of funds.
But the prosecution may still prove such knowledge through other evidence.
Whether such evidence is sufficient to sustain probable cause to file the
information is addressed to the sound discretion of the City Prosecutor and is a
matter not controllable by certiorari. Certainly, petitioner is not left in a lurch as
the prosecution must prove knowledge without the benefit of the presumption, and
she may present whatever defenses are available to her in the course of the trial.
The distinction between the elements of the offense and the evidence of these
elements is analogous or akin to the difference between ultimate
facts and evidentiary facts in civil cases. Ultimate facts are the essential and
substantial facts which either form the basis of the primary right and duty or which
directly make up the wrongful acts or omissions of the defendant, while
evidentiary facts are those which tend to prove or establish said ultimate
facts.25 Applying this analogy to the case at bar, knowledge of insufficiency of
funds is the ultimate fact, or element of the offense that needs to be proved, while
dishonor of the check presented within ninety (90) days is merely the evidentiary
fact of such knowledge.
It is worth reiterating that courts will not normally interfere with the prosecutor's
discretion to file a criminal case when there is probable cause to do so. Probable
cause has been defined as the existence of such facts and circumstances as would
excite the belief in a reasonable mind, acting on the facts within the knowledge of
the prosecutor, that the person charged was guilty of the crime for which he was
prosecuted.26 The prosecutor has ruled that there is probable cause in this case,
and we see no reason to disturb the finding.
WHEREFORE, the assailed Resolution of the Court of Appeals dated 26 October
1999 which dismissed the petition for review questioning the resolution of the
Office of the Regional State Prosecutor, Region IV, dated 22 April 1999, and its
order dated 31 August 1999 denying reconsideration is AFFIRMED. Costs
against petitioner.
SO ORDERED.1wphi1.nt
Mendoza, Buena, De Leon, Jr., JJ., concur.
Quisumbing, on official leave.

Branch 274,respondents.
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 121234 August 23, 1995
HUBERT J. P. WEBB, petitioner,
vs.
HONORABLE RAUL E. DE LEON, the Presiding Judge of the Regional Trial
Court of Paraaque, Branch 258, HONORABLE ZOSIMO V. ESCANO, the
Presiding Judge of the Regional Trial Court of Paraaque, Branch 259, PEOPLE
OF THE PHILIPPINES, ZENON L. DE GUIA, JOVENCITO ZUO,
LEONARDO GUIYAB, JR., ROBERTO LAO, PABLO FORMARAN, and
NATIONAL BUREAU OF INVESTIGATION, and HONORABLE AMELITA G.
TOLENTINO, the Presiding Judge of the Regional Trial Court of Paraaque,
Branch 274, respondents, LAURO VIZCONDE, intervenor.
G.R. No. 121245 August 23, 1995
MICHAEL A. GATCHALIAN, petitioner,
vs.
OF THE PHILIPPINES, ZENON L. DE GUIYAB, JR., ROBERTO LAO,
PABLO FORMARAN, and NATIONAL BUREAU OF INVESTIGATION, and
HONORABLE AMELITA G. TOLENTINO, the Presiding Judge of the Regional
Trial Court of Paraaque, Branch 274, respondents.
G.R. No. 121297 August 23, 1995
ANTONIO L. LEJANO, petitioner,
vs.
OF THE PHILIPPINES, ZENON L. DE GUIA, JOVENCITO ZUO,
LEONARDO GUIYAB, JR., ROBERTO LAO, PABLO FORMARAN, and
NATIONAL BUREAU OF INVESTIGATION, and HONORABLE AMELITA G.
TOLENTINO, the Presiding Judge of the Regional Trial Court of Paraaque,
PUNO, J.:
Before the Court are petitions for the issuance of the extraordinary writs
of certiorari, prohibition and mandamuswith application for temporary restraining
order and preliminary injunction to: (1) annul and set aside the Warrants of Arrest
issued against petitioners by respondent Judges Raul E. de Leon and Amelita
Tolentino in Criminal Case No. 95-404; (2) enjoin the respondents from
conducting any proceeding in the aforementioned criminal case; and (3) dismiss
said criminal case or include Jessica Alfaro as one of the accused therein. 1
From the records of the case, it appears that on June 19, 1994, the National Bureau
of Investigation (NBI) filed with the Department of Justice a letter-complaint
charging petitioners Hubert Webb, Michael Gatchalian, Antonio J. Lejano and six
(6) other persons, 2 with the crime of Rape with Homicide. Forthwith, the
Department of Justice formed a panel of prosecutors headed by Assistant Chief
State Prosecutor Jovencio R. Zuo to conduct the preliminary investigation 3 of
those charged with the rape and killing on June 30, 1991 of Carmela N.
Vizconde; 4 her mother Estrellita Nicolas-Vizconde, 5 and her sister Anne Marie
Jennifer 6 in their home at Number 80 W. Vinzons, St., BF Homes, Paraaque,
Metro Manila.
During the preliminary investigation, the NBI presented the following: (1) the
sworn statement dated May 22, 1995 of their principal witness, Maria Jessica
M. Alfaro who allegedly saw the commission of the crime; 7 (2) the sworn
statements of two (2) of the former housemaids of the Webb family in the persons
of Nerissa E. Rosales and Mila S.Gaviola; 8 (3) the sworn-statement of Carlos
J. Cristobal who alleged that on March 9, 1991 he was a passenger of United
Airlines Flight No. 808 bound for New York and who expressed doubt on whether
petitioner Webb was his co-passenger in the trip; (4) the sworn statement of Lolita
Birrer, a former live-in partner of Gerardo Biong, who narrated the manner of how
Biong investigated and tried to cover up the crime at bar; 9 (5) the sworn
statements of Belen Dometita and Teofilo Minoza, two of the Vizconde maids, and
the sworn statements of Normal White, a security guard and Manciano Gatmaitan,
an engineer. The autopsy reports of the victims were also submitted and they
showed that Carmela had nine (9) stab wounds, Estrellita twelve (12) and Jennifer
nineteen (19). 10 The genital examination of Carmela confirmed the presence of
spermatozoa. 11
Before submitting his counter-affidavit, petitioner Webb filed with the DOJ Panel
a Motion for Production And Examination of Evidence and Documents for the
NBI to produce the following:

(a) Certification issued by the U.S. Federal Bureau of Investigation on the
admission to and stay of Hubert Webb in the United States from March 9,
1991 to October 22, 1992;
(b) Laboratory Report No. SN-91-17 of the Medico Legal Officer, Dr.
Prospero A. Cabanayan, M.D.;
(c) Sworn Statements of Gerardo C. Biong (other than his Sworn Statement
dated October 7, 1991);
(d) Photographs of fingerprints lifted from the Vizconde residence taken
during the investigation;
(e) Investigation records of NBI on Engr. Danilo Aguas, et al.;
(f) List of names of 135 suspects/persons investigated by the NBI per
Progress Report dated September 2, 1991 submitted by Atty. Arlis Vela,
Supervising Agent;
(g) Records of arrest, interview, investigation and other written statements of
Jessica Alfaro (other than the May 22, 1995 Sworn Statement) conducted by
the NBI and other police agencies;
(h) transmittal letter to the NBI, including the report of the investigation
conducted by Superintendent Rodolfo C. Sison, Regional Deputy Director,
NCRC;
(i) The names of NBI officials/agents composing the Task Force Jecares,
including their respective positions and duties;
(j) Statements made by other persons in connection with the crime charged.
The motion was granted by the DOJ Panel and the NBI submitted photocopies of the
documents. It alleged it lost the original of the April 28, 1995 sworn statement of
Alfaro. This compelled petitioner Webb to file Civil Case No. 951099 in the Regional
Trial Court (RTC) of Makati, Br. 63, for the purpose, among others, of obtaining the
original of said sworn statement. He succeeded, for in the course of its proceedings,
Atty. Arturo L. Mercader, Jr., produced a copy of said original in compliance with a
subpoena duces tecum. The original was then submitted by petitioner Webb to the DOJ
Panel together with his other evidence. It appears, however, that petitioner Webb failed
to obtain from the NBI the copy of the Federal Bureau of Investigation (FBI) Report
despite his request for its production.
Petitioner Webb claimed during the preliminary investigation that he did not commit
the crime at bar as he went to the United States on March 1, 1991 and returned to the
Philippines on October 27, 1992. 12 His alibi was corroborated by Honesto Aragon,
Lecinia Edrosolano, Sylvia Climaco, Gina Roque, Sonia Rodriguez, Edgardo Venture
and Pamela Francisco. 13 To further support his defense, he submitted documentary
evidence that he bought a bicycle and a 1986 Toyota car while in the United States
on said dates 14 and that he was issued by the State of California Driver's License
No. A8818707 on June 14, 1991. 15 Petitioner Webb likewise submitted the letter
dated July 25, 1995 of Mr. Robert Heafner, Legal Attache of the US Embassy,
citing certain records tending to confirm, among others, his arrival at San
Francisco, California on March 9, 1991 as a passenger in United Airlines Flight
No. 808.
The other respondents Hospicio "Pyke" Fernandez, Michael Gatchalian,
Antonio "Tony Boy" Lejano, Peter Estrada, Miguel Rodriguez and Gerardo Biong
submitted sworn statements, responses, and a motion to dismiss denying their
complicity in the rape-killing of the Vizcondes. 16 Only the respondents Joey
Filart and Artemio "Dong" Ventura failed to file their counter-affidavits though
they were served with subpoena in their last known address. 17In his sworn
statement, petitioner Gatchalian alleged that from 11 o'clock in the evening of
June 29, 1991 until 3 o'clock in the morning of the following day, he was at the
residence of his friends, Carlos and Andrew Syyap, at New Alabang Village,
Muntinlupa watching video tapes. He claimed that his co-petitioner Lejano was
with him.
On August 8, 1995, the DOJ Panel issued a 26-page Resolution "finding probable
cause to hold respondents for trial" and recommending that an Information for
rape with homicide be filed against petitioners and their co-respondents, 18 On the
same date, it filed the corresponding Information 19 against petitioners and their
co-accused with the Regional Trial Court of Paraaque. The case was docketed as
Criminal Case No. 95-404 and raffled to Branch 258 presided by respondent judge
Zosimo V. Escano. It was, however, the respondent judge Raul de Leon, pairing
judge of Judge Escano, who issued the warrants of arrest against the petitioners.
On August 11, 1995, Judge Escano voluntarily inhibited himself from the case to
avoid any suspicion about his impartiality considering his employment with the
NBI before his appointment to the bench. The case was re-raffled to Branch 274,
presided by Judge Amelita Tolentino who issued new warrants of arrest against the
petitioners and their co-accused. On August 11, 1995, petitioner Webb voluntarily
surrendered to the police authorities at Camp Ricardo Papa Sr., in Bicutan, Taguig.
Petitioners Gatchalian and Lejano likewise gave themselves up to the authorities
after filing their petitions before us.
In their petitions at bar, petitioners contend: (1) respondent Judges de Leon and
Tolentino gravely abused their discretion when they failed to conduct a
preliminary examination before issuing warrants of arrest against them: (2) the
DOJ Panel likewise gravely abused its discretion in holding that there is probable
cause to charge them with the crime of rape with homicide; (3) the DOJ Panel
denied them their constitutional right to due process during their preliminary
investigation; and (4) the DOJ Panel unlawfully intruded into judicial prerogative

when it failed to charge Jessica Alfaro in the Information as an accused.
We find the petitions bereft of merit.
I
Petitioners fault the DOJ Panel for its finding of probable cause. They insist
that the May 22, 1995 sworn statement of Jessica Alfaro is inherently weak
and uncorroborated. They hammer on alleged material inconsistencies
between her April 28, 1995 and May 22, 1995 sworn statements. They assail
her credibility for her misdescription of petitioner Webb's hair as semi-blonde.
They also criticize the procedure followed by the DOJ Panel when it did not
examine witnesses to clarify the alleged incredulities and inconsistencies in
the sworn statements of the witnesses for the NBI.
We start with a restatement of the purpose of a preliminary investigation.
Section 1 of Rule 112 provides that a preliminary investigation should
determine " . . . whether there is a sufficient ground to engender a wellgrounded belief that a crime cognizable by the Regional Trial Court has been
committed and that the respondent is probably guilty thereof, and should be
held for trial." Section 3 of the same Rule outlines the procedure in
conducting a preliminary investigation, thus:
Sec. 3. Procedure. Except as provided for in Section 7 hereof, no
complaint or information for an offense cognizable by the Regional
Trial Court shall be filed without a preliminary investigation having
been first conducted in the following manner:
(a) The complaint shall state the known address of the respondent
and be accompanied by affidavits of the complainant and his
witnesses as well as other supporting documents, in such number of
copies as there are respondents, plus two (2) copies for the official
file. The said affidavits shall be sworn to before any fiscal, state
prosecutor or government official authorized to administer oath, or,
in their absence or unavailability, a notary public, who must certify
that he personally examined the affiants and that he is satisfied that
they voluntarily executed and understood their affidavits.
(b) Within ten (10) days after the filing of the complaint, the
investigating officer shall either dismiss the same if he finds no
ground to continue with the inquiry, or issue a subpoena to the
respondent, attaching thereto a copy of the complaint, affidavits and
other supporting documents. Within ten (10) days from receipt
thereof, the respondent shall submit counter-affidavits and other
supporting documents. He shall have the right to examine all other
evidence submitted by the complainant.
(c) Such counter-affidavits and other supporting evidence

submitted by the respondent shall also be sworn to and certified
as prescribed in paragraph (a) hereof and copies thereof shall be
furnished by him to the complainant.
(d) If the respondent cannot be subpoenaed, or if subpoenaed,
does not submit counter-affidavits within the ten (10) day period,
the investigating officer shall base his resolution on the evidence
presented by the complainant.
(e) If the investigating officer believes that there are matters to
be clarified, he may set a hearing to propound clarificatory
questions to the parties or their witnesses, during which the
parties shall be afforded an opportunity to be present but without
the right to examine or cross-examine. If the parties so desire,
they may submit questions to the investigating officer which the
latter may propound to the parties or witnesses concerned.
(f) Thereafter, the investigation shall be deemed concluded, and
the investigating officer shall resolve the case within ten (10)
days therefrom. Upon the evidence thus adduced, the
investigating officer shall determine whether or not there is
sufficient ground to hold the respondent for trial.
Section 4 of Rule 112 then directs that "if the investigating fiscal finds
cause to hold the respondent for trial, he shall prepare the resolution and
corresponding information. He shall certify under oath that he, or as
shown by the record, an authorized officer, has personally examined the
complainant and his witnesses, that there is reasonable ground to believe
that a crime has been committed and that the accused is probably guilty
thereof . . ."
The need to find probable cause is dictated by the Bill of Rights which protects
"the right of the people to be secure in their persons . . . against unreasonable
searches and seizures of whatever nature . . ." 20 An arrest without a probable
cause is an unreasonable seizure of a person, and violates the privacy of persons
which ought not to be intruded by the State. 21 Probable cause to warrant arrest is
not an opaque concept in our jurisdiction. Continuing accretions of case law
reiterate that they are facts and circumstances which would lead a reasonably
discreet and prudent man to believe that an offense has been committed by the
person sought to be arrested. 22 Other jurisdictions utilize the term man of
reasonable caution 23 or the term ordinarily prudent and cautious man. 24 The
terms are legally synonymous and their reference is not to a person with training
in the law such as a prosecutor or a judge but to the average man on the
street. 25 It ought to be emphasized that in determining probable cause, the

average man weighs facts and circumstances without resorting to the calibrations of
our technical rules of evidence of which his knowledge is nil. Rather, he relies on the
calculus of common sense of which all reasonable men have an abundance.
Applying these basic norms, we are not prepared to rule that the DOJ Panel
gravely abused its discretion when it found probable cause against the
petitioners. Petitioners belittle the truthfulness of Alfaro on two (2) grounds:
(a) she allegedly erroneously described petitioner Webb's hair as semi-blond
and (b) she committed material inconsistencies in her two (2) sworn
statement, thus: 26
xxx xxx xxx
To illustrate, the following are some examples of inconsistencies in
the two sworn statements of Alfaro:
On whether Alfaro knew Carmela before the incident in question
First Affidavit: She had NOT met Carmela before
June 29, 1991.
Second Affidavit: "I met her in a party sometime in
February, 1991."
On whether Alfaro saw the dead bodies
First Affidavit: She did not see the three dead
persons on that night. She just said "on the
following day I read in the newspaper that there
were three persons who were killed . . ."
Second Affidavit: "I peeped through the first door
on the left. I saw two bodies on top of the bed,
bloodied, and in the floor, I saw Hubert on top of
Carmela."
On the alleged rape of Carmela Vizconde
First Affidavit: She did not see the act of rape.
Second Affidavit: She saw Hubert Webb "with bare
buttocks, on top of Carmela and pumping, her
mouth gagged and she was moaning and I saw tears
on her eyes."
On how Webb, Lejano, and Ventura entered the Vizconde house
First Affidavit: "by jumping over the fence, which
was only a little more than a meter high."
Second Affidavit: They "entered the gate

which was already open."
On whether Alfaro entered the Vizconde house
First Affidavit: She never entered the house.
Second Affidavit: "I proceeded to the iron grill
gate leading to the dirty kitchen."
In its Resolution, the DOJ Panel ruled that these alleged misdescription
and inconsistencies did not erode the credibility of Alfaro. We quote the
pertinent ruling, viz.: 27
xxx xxx xxx
As regards the admissibility of Alfaro's statements, granting for
purposes of argument merely that she is a co-conspirator, it is
well to note that confessions of a co-conspirator may be taken as
evidence to show the probability of the co-conspirator's
participation in the commission of the crime (see People vs.
Lumahang, 94 Phil. 1084).
Furthermore, it is a well-established doctrine that conspiracy
need not be proved by direct evidence of prior agreement to
commit the crime. Indeed, "only rarely would such a prior
agreement be demonstrable since, in the nature of things,
criminal undertakings are only rarely documented by agreements
in writing. Thus, conspiracy may be inferred from the conduct of
the accused before, during and after the commission of the
crime, showing that the several accused had acted in concert or
in unison with each other, evincing a common purpose or
design." (Angelo vs. Court of Appeals, 210 SCRA 402 [1992],
citations omitted; People vs. Molleda, 86 SCRA 699).
Neither can we discredit Alfaro merely because of the
inconsistencies in her two sworn statements. InAngelo, the Court
refused to discredit the testimony of a witness accusing therein
petitioner for the slaying of one Gaviano Samaniego even
though said witness failed to name Angelo in his affidavit which
was executed five (5) months earlier. Granting, the Court
continued, that a part of the witness' testimony is untrue, such
circumstance is not sufficient to discredit the entire testimony of
the witness.
On August 7, 1995, another counsel for respondent Webb
submitted his memorandum suggesting that the instant complaint

"should not be decided within the month to give time to the NBI to
coordinate with the FBI on the latter's inquiry into the whereabouts
of Hubert Webb . . . and to check on our U.S.-based witnesses."
In said memorandum, counsel for respondent Webb calls for the
application of the maxim falsus in uno, falsus in omnibus arising
from the inconsistencies of Alfaro's statements, among others. This is
untenable. As held in Angelo:
There is no rule of law which prohibits a court from
crediting part of the testimony of a witness as
worthy of belief and from simultaneously rejecting
other parts which the court may find incredible or
dubious. The maxim falsus in uno, falsus in
omnibus is not a rule of law, let alone a general rule
of law which is universally applicable. It is not a
legal presumption either. It is merely a latinism
describing the conclusion reached by a court in a
particular case after ascribing to the evidence such
weight or lack of weight that the court deemed
proper.
In the case before us, complainant reasoned out that Alfaro was then
having reservations when she first executed the first statement and
held back vital information due to her natural reaction of mistrust.
This being so, the panel believes that the inconsistencies in Alfaro's
two sworn statements have been sufficiently explained especially
specially so where there is no showing that the inconsistencies were
deliberately made to distort the truth. Consequently, the probative
value of Alfaro's testimony deserves full faith and credit. As it has
been often noted, ex parte statements are generally incomplete
because they are usually executed when the affiant's state of mind
does not give her sufficient and fair opportunity to comprehend the
import of her statement and to narrate in full the incidents which
transpired (People vs. Sarellana, 233 SCRA 31 [1994]; Angelo vs.
Court of Appeals, supra). In the case at bar, there is no dispute that a
crime has been committed and what is clear before us is that the
totality of the evidence submitted by the complainant indicate
a prima faciecase that respondents conspired in the perpetration of
the imputed offense.
We note that the May 22, 1995 sworn statement of Alfaro was given with the
assistance of counsel 28 and consists of six (6) pages, in single space reciting in rich
details how the crime was planned and then executed by the petitioners. In addition,
the DOJ Panel evaluated the supporting sworn statements of Nerissa Rosales and Mila
Gaviola, former housemaids of the Webbs, Carlos J. Cristobal, a passenger in

United Airlines Flight No. 808 and Lolita Birrer, a paramour of Gerardo Biong.
The Panel assayed their statements as follows: 29
xxx xxx xxx
According to Nerissa E. Rosales, a former housemaid of the
Webb family, on June 29, 1991, between 7:00 o'clock and 8:00
o'clock in the evening, Hubert was at home inside his room with
two male visitors. She knew it because she and her cohousemaid, Loany, were instructed by Hubert to bring them
three glasses of juice. It was the last time she saw Hubert and
was later told by then Congressman Webb that Hubert was in the
United States.
While Mila S. Gaviola, another former housemaid of the Webb
family and who served as a laundry woman, claims, aside from
corroborating the statement of Nerissa Rosales, that on June 30,
1991, she woke up at around 4:00 in the morning and as what
she used to do, she entered the rooms of the Webbs to get their
clothes to be washed. As a matter of fact, in that early morning,
she entered Hubert's room and saw Hubert, who was only
wearing his pants, already awake and smoking while he was
sitting on his bed. She picked up Hubert's scattered clothes and
brought them together with the clothes of the other members of
the family to the laundry area. After taking her breakfast, she
began washing the clothes of the Webbs. As she was washing the
clothes of Hubert Webb, she noticed fresh bloodstains in his
shirt. After she finished the laundry, she went to the servant's
quarters. But feeling uneasy, she decided to go up to the
stockroom near Hubert's room to see what he was doing. In the
said stockroom, there is a small door going to Hubert's room and
in that door there is a small opening where she used to see
Hubert and his friends sniffing on something. She observed
Hubert was quite irritated, uneasy, and walked to and from
inside his room.
On that day, she noticed Hubert left the house at around 1:00 in
the afternoon and came back at around 4:00 in the same
afternoon and went inside his room using the secret door of the
house. It was the last time that she saw Hubert until she left the
Webb family.
On the other hand, Carlos J. Cristobal alleged that on March 9,
1991, at about 10:00 in the morning, he was at the Ninoy Aquino

International Airport as he was then scheduled to take the United
Airlines Flight No. 808 at 2:00 in the afternoon for New York. At the
airport's lobby, he saw then Congressman Freddie Webb with a male
companion. He greeted him and Webb answered: "Mabuti naman, at
ito, ihahatid ko ang anak ko papuntang Florida." He knew Freddie
Webb because he often watched him then in a television show
"Chicks to Chicks." He observed that the man whom Freddie Webb
referred to as his son, was of the same height as Freddie. The son
referred to has fair complexion with no distinguishing marks on his
face. He (son of Webb) was then wearing a striped white jacket.
When he and his children were already inside the plane, he did not
see Freddie anymore, but he noticed his son was seated at the front
portion of the economy class. He never noticed Freddie Webb's son
upon their arrival in San Francisco. He claims that, while watching
the television program "DONG PUNO LIVE" lately, he saw the wife
of Freddie Webb with her lawyer being interviewed, and when she
described Hubert as "moreno" and small built, with a height of five
feet and seven inches tall, and who was the one who left for United
States on March 9, 1991, he nurtured doubts because such
description does not fit the physical traits of the son of Freddie, who
left with him for United States on the same flight and date.
Lolita Birrer, alleged that she know Gerardo Biong because she had
an affair with him for almost three (3) years and in fact, she had a
child with him who is now four (4) years old. Their relationship
started in February, 1991 until she broke up with him in September
1993. She recalls that on June 29, 1991, at around 6:00 p.m., Biong
invited her to play mahjong at the canteen of a certain Aling Glo
located at the back of the Paraaque Municipal Hall.
At about 2:30, in the early morning of January 30, 1991, the radio
operator of the Paraaque police told Biong that he has a phone call.
Before Biong went to the radio room, she was instructed to take him
over and after somebody won the game, she followed Biong at the
radio
room
where
she
overheard
him
uttering,
"Ano?, Saan? Mahirap yan, Paano, o sige, aantayin kita, O ano?,
dilaw na taxi, o sige." When he put the phone down, Biong told her,
"Mayroon lang akong rerespondehan, ikaw muna ang maupo" and
then, he went outside the canteen apparently waiting for somebody.
Twenty minutes later, a taxi, colored yellow, arrived with a male
passenger sitting at the backseat and parked near the canteen. After it
made some signals by blinking its headlight, Biong rode thereat at
the front seat beside the driver and then, they left. She was not able to
recognize the male passenger because the window of the taxi was
tinted. Biong came back at around 7:00 of the same morning and
when he arrived, he immediately washed his hands and face, and
took his handkerchief from his pocket which he threw at the
trash can. She asked him why he threw his handkerchief and he
answered, "Hmp . . . amoy tae." She inquired what happened in
BF Homes and he replied, "Putang inang mga batang iyon,
pinahirapan nila ako."
Biong later invited her for breakfast, but they first went to his
office where she observed him doing something in his steel
cabinet while he appeared to be uneasy. Moments later, Galvan,
another policeman of Paraaque, arrived and said, "Oy Biong,
may tatlong patay sa BF, imbestigahan mo" to which Biong
answered, "Oo susunod na ako." Biong went to the office of
Capt. Don Bartolome who offered to accompany him and with
whom she asked permission to go with them. Before they
proceeded to the place where the killings happened, she asked
Biong if he knew the exact address and the latter immediately
responded, "Alam ko na yon." She was surprised because Galvan
never told him the place of the incident.
As soon as they arrived at the Vizconde's residence, Biong
instructed the housemaids to contact the victim's relatives, while
the security guard fetched the barangay chairman and the
president of the Homeowners Association. When all these
persons were already in the house, Biong started recording the
wounds of the victim. Inside the master's bedroom, she saw
Biong took a watch from the jewelry box. Because she could not
tolerate the foul odor, she and Capt. Bartolome went out of the
room and proceeded to the dining area. On top of the dining
table, she saw the scattered contents of a shoulder bag. Moments
later, Biong came out from the room and proceeded to the front
door to remove the chain lock; asked the keys from the
housemaid and it was only then that the main door was opened.
Biong noticed a stone in front of the broken glass of the door and
requested Capt. Bartolome to go inside the servant's quarters as
he doubted the housemaids' claim that they heard nothing
unusual. Using the handle of his gun, Biong broke the remaining
glass of the door panel. Bartolome then came out of the room
and told Biong that he can hear the sound of the glass being
broken. At the garage, Biong also noticed same marks on the
hood of the car.
On the following day, at around 12:00 noon, Biong arrived in her

house together with the Vizconde housemaids. When Biong was
preparing to take a bath, she saw him remove from his pocket the
things she also saw from Vizconde's residence, to wit: calling cards,
driver's license, ATM card, a crossed check worth P80,000.00,
earrings, a ring, bracelet, necklace, and the watch he took from the
jewelry box inside the room of the Vizcondes. These jewelry items
were later pawned by Biong for P20,000.00 at a pawnshop in front of
Chow-Chow restaurant in Santos Avenue, Paraaque. The next day,
she saw Biong took from his locker at the Paraaque Police Station
an imported brown leather jacket, which the latter claimed to have
been given to him by the person who called him up in the early
morning of June 30, 1991.
Since then, Biong has been wearing said jacket until they broke up
sometime in 1993. She observed that Biong seemed not interested in
pursuing the investigation of the Vizconde case. In fact, when Biong
and this group picked up Mike Gatchalian and brought him to the
Paraaque Police Station, she was surprised that Biong halted the
investigation when Gatchalian was profusely sweating while being
interrogated. After the father of Gatchalian talked to Colonel Pureza,
the latter called up and instructed Biong to bring Gatchalian to him
(Colonel Pureza) and that was the last thing she remembered
regarding this case.
The DOJ Panel then weighed these inculpatory evidence against the exculpatory
evidence of petitioners. It ruled:30
xxx xxx xxx
The voluminous number of exhibits submitted by respondent Webb to
support his defense of denial and alibi notwithstanding, the panel,
after a careful and thorough evaluation of the records, believes that
they cannot outweigh the evidence submitted by the complainant.
Alibi cannot prevail over the positive identification made by a
prosecution witness. Verily, alibi deserves scant consideration in the
face of positive identification especially so where the claim of alibi is
supported mainly by friends and relatives (People vs. Apolonia, 235
SCRA 124 [1994]; People vs. Lucas, 181 SCRA 316 and a long line
of cases).
Similarly, denial is a self-serving negative which cannot be given
greater evidentiary weight than the declaration of a credible witness
who testified on affirmative matters (People vs. Carizo, 233 SCRA
687 [1994]). Indeed, denial, like alibi, is weak and becomes even
more weaker when arrayed against the positive identification by the
witness for the prosecution (People vs. Onpaid, 233 SCRA 62

[1994]).
Surprisingly, Gatchalian's defense of alibi was not corroborated
by Lejano, whom he claimed was with him watching video tapes
at the Syyap residence. Other than claiming that he "was not and
could not have been at or near the area of the Vizconde residence
at the time of the alleged commission of the crime,"
respondent Lejano proffered no evidence to substantiate his
claim of alibi.
xxx xxx xxx
On the other hand, respondent Webb seeks to enhance the
acceptability of his alibi in the form of documents tending to
show that he was thousands of miles away when the incident
occurred. We have carefully deliberated and argued on the
evidence submitted by respondent Webb in support of his
absence from the country since March 9, 1991 to October 26,
1992 and found the same wanting to exonerate him of the
offense charged. The material dates in this case are June 29 and
30, 1991. While respondent Webb may have submitted proof
tending to show that he was issued a California driver's license
on June 14, 1991, there is no showing that he could not have
been in the country on the dates above mentioned. Neither do we
find merit in the allegation that respondent Webb personally
bought a bicycle on June 30, 1991 in California in view of his
positive identification by Alfaro and the two (2) househelps of
the Webb family who testified that he was here in the country on
said dates. Additionally, the issuance of receipt evidencing the
purchase of a bicycle in California is no conclusive proof that
the name appearing thereon was the actual buyer of the
merchandise.
Given these conflicting pieces of evidence of the NBI and the petitioners,
we hold that the DOJ Panel did not gravely abuse its discretion when it
found probable cause against the petitioners. 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, 31 while probable cause demands more than
"bare suspicion," it requires "less than evidence which would justify . . .
conviction." A finding of probable cause merely binds over the suspect to

stand trial. It is not a pronouncement of guilt.
Considering the low quantum and quality of evidence needed to support a
finding of probable cause, we also hold that the DOJ Panel did not, gravely
abuse its discretion in refusing to call the NBI witnesses for clarificatory
questions. The decision to call witnesses for clarificatory questions is
addressed to the sound discretion of the investigator and the investigator
alone. If the evidence on hand already yields a probable cause, the
investigator need not hold a clarificatory hearing. To repeat, probable cause
merely implies probability of guilt and should be determined in a summary
manner. Preliminary investigation is not a part of trial and it is only in a trial
where an accused can demand the full exercise of his rights, such as the right
to confront and cross-examine his accusers to establish his innocence. In the
case at bar, the DOJ Panel correctly adjudged that enough evidence had been
adduced to establish probable cause and clarificatory hearing was
unnecessary.
II
We now come to the charge of petitioners that respondent Judge Raul de Leon
and, later, respondent Judge Amelita Tolentino issued warrants of arrest
against them without conducting the required preliminary examination.
Petitioners support their stance by highlighting the following facts: (1) the
issuance of warrants of arrest in a matter of few hours; (2) the failure of said
judges to issue orders of arrest; (3) the records submitted to the trial court
were incomplete and insufficient from which to base a finding of probable
cause; and (4) that even Gerardo Biong who was included in the Information
as a mere accessory had a "NO BAIL" recommendation by the DOJ Panel.
Petitioners postulate that it was impossible to conduct a "searching
examination of witnesses and evaluation of the documents" on the part of said
judges.
The issuance of a warrant of arrest interferes with individual liberty and is
regulated by no less than the fundamental law of the land. Section 2 of Article
III of the Constitution provides:
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.
The aforequoted provision deals with the requirements of probable cause both
with respect to issuance of warrants of arrest or search warrants. The

similarities and differences of their requirements ought to be educational.
Some of them are pointed out by Professors LaFave and Israel,
thus: 32 "It is generally assumed that the same quantum of evidence is
required whether one is concerned with probable cause to arrest or
probable cause to search. But each requires a showing of probabilities as
to somewhat different facts and circumstances, and thus one can exist
without the other. In search cases, two conclusions must be supported by
substantial evidence: that the items sought are in fact seizable by virtue of
being connected with criminal activity, and that the items will be found in
the place to be searched. It is not also necessary that a particular person
be implicated. By comparison, in arrest cases there must be probable
cause that a crime has been committed and that the person to be arrested
committed it, which of course can exist without any showing that
evidence of the crime will be found at premises under that person's
control." Worthy to note, our Rules of Court do not provide for a similar
procedure to be followed in the issuance of warrants of arrest and search
warrants. With respect to warrants of arrest, section 6 of Rule 112 simply
provides that "upon filing of an information, the Regional Trial Court
may issue a warrant for the arrest of the accused." In contrast, the
procedure to be followed in issuing search warrants is more defined.
Thus, Sections 3, 4 and 5 of Rule 126 provide:
xxx xxx xxx
Sec. 3. Requisites for issuing search warrant. A search
warrant shall not issue but upon probable cause in connection
with one specific offense 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 things to be seized.
Sec. 4. Examination of complainant; record. The judge must,
before issuing the warrant, personally examine in the form of
searching questions and answers, in writing and under oath the
complainant and any witnesses he may produce on facts
personally known to them and attach to the record their sworn
statements together with any affidavits submitted.
Sec. 5. Issuance and form of search warrant. If the judge is
thereupon satisfied of the facts upon which the application is
based, or that there is probable cause to believe that they exist,
he must issue the warrant, which must be substantially in the
form prescribed by these Rules.

We discussed the difference in the Procedure of issuing warrants of arrest and
search warrants in Soliven vs. Makasiar, 33 thus:
xxx xxx xxx
The second issue, raised by Beltran, calls for an interpretation of the
constitutional provision on the issuance of warrants of arrest. The
pertinent provision reads:
Art. III, Sec. 2. The right of the people to be secure
in their persons, houses, papers and effects against
unreasonable searches and seizures of whatever
nature and for any purpose shall be inviolable, and
no search warrant or warrant of arrest shall issue
except upon probable cause to be determined
personally by the judge after examination 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.
The addition of the word "personally" after the word "determined"
and the deletion of the grant of authority by the 1973 Constitution to
issue warrants to "other responsible officers as may be authorized by
law," has apparently convinced petitioner Beltran that the
Constitution now requires the judge to personally examine the
complainant and his witnesses in his determination of probable cause
for the issuance of warrants of arrest. This is not an accurate
interpretation.
What the Constitution underscores is the exclusive and personal
responsibility of the issuing judge to satisfy himself of the existence
of probable cause. In satisfying himself of the existence of probable
cause for the issuance of a warrant of arrest, the judge is not
required to personally examine the complainant and his witnesses.
Following established doctrine and procedure, he shall: (1)
personally evaluate the report and the documents submitted by the
fiscal regarding the existence of probable cause and, on the basis
thereof, issue a warrant; or (2) if on the basis thereof he finds no
probable cause, he may disregard the fiscal's report and require the
submission of supporting affidavits of witnesses to aid him in
arriving at a conclusions as to the existence of probable cause.
Sound policy dictates this procedure, otherwise judges would be
unduly laden with the preliminary examination and investigation of
criminal complaints instead of concentrating on hearing and deciding
cases filed before their courts.

Clearly then, the Constitution, the Rules of Court, and our case
law 34 repudiate the submission of petitioners that respondent judges
should have conducted "searching examination of witnesses" before
issuing warrants of arrest against them. They also reject petitioners'
contention that a judge must first issue an order of arrest before issuing a
warrant of arrest. There is no law or rule requiring the issuance of an
Order of Arrest prior to a warrant of arrest.
In the case at bar, the DOJ Panel submitted to the trial court its 26-page
report, the two (2) sworn statements of Alfaro and the sworn statements
of Carlos Cristobal and Lolita Birrer 35 as well as the counter-affidavits
of the petitioners. Apparently, the painstaking recital and analysis of the
parties' evidence made in the DOJ Panel Report satisfied both judges that
there is probable cause to issue warrants of arrest against petitioners.
Again, we stress that before issuing warrants of arrest, judges merely
determine personally the probability, not the certaintyof guilt of an
accused. In doing so, judges do not conduct a de novo hearing to
determine the existence of probable cause. They just personally
review the initial determination of the prosecutor finding a probable cause
to see if it is supported by substantial evidence. The sufficiency of the
review process cannot be measured by merely counting minutes and
hours. The fact that it took the respondent judges a few hours to review
and affirm the probable cause determination of the DOJ Panel does not
mean they made no personal evaluation of the evidence attached to the
records of the case. 36
Petitioners' reliance on the case of Allado vs. Diokno 37 is misplaced.
Our Allado ruling is predicated on the utter failure of the evidence to
show the existence of probable cause. Not even the corpus delicti of the
crime was established by the evidence of the prosecution in that case.
Given the clear insufficiency of the evidence on record, we stressed the
necessity for the trial judge to make a further personal examination of the
complainant and his witnesses to reach a correct assessment of the
existence or non-existence of probable cause before issuing warrants of
arrest against the accused. The case at bar, however, rests on a different
factual setting. As priorly discussed, the various types of evidence extant
in the records of the case provide substantial basis for a finding of
probable cause against the petitioner. The corpus delicti of the crime is a
given fact. There is an eyewitness account of the imputed crime given by
Alfaro. The alibi defense of petitioner Webb is also disputed by sworn
statements of their former maids. It was therefore unnecessary for the
respondent judges to take the further step of examining ex parte the

complainant and their witnesses with searching questions.
III
Petitioners also complain about the denial of their constitutional right to due
process and violation of their right to an impartial investigation. They decry
their alleged hasty and malicious prosecution by the NBI and the DOJ Panel.
They also assail the prejudicial publicity that attended their preliminary
investigation.
We reject these contentions. The records will show that the DOJ Panel did not
conduct the preliminary investigation with indecent haste. Petitioners were
given fair opportunity to prove lack of probable cause against them. The
fairness of this opportunity is well stressed in the Consolidated Comment of
the Solicitor General, viz.:
Again, there is no merit in this contention. Petitioners were afforded
all the opportunities to be heard. Petitioner Webb actively
participated in the preliminary investigation by appearing in the
initial hearing held on June 30, 1995 and in the second hearing on
July 14, 1995; and by filing a "Motion for Production and
Examination of Evidence and Documents" on June 27, 1995 (p. 4,
Petition), a "Reply to the compliance and Comment/Manifestation to
the Motion for Production and Examination of Evidence" on July 5,
1995 (p. 6, Petition), a "Comment and Manifestation" on July 7, 1995
(p. 6, Petition), his "Counter-Affidavit" on July 14, 1995 (pp. 6-7,
Petition) and a "Motion to Resolve" on August 1, 1995. Numerous
letter-requests were also sent by the petitioner Webb's counsel to the
DOJ Panel requesting the latter to furnish him a copy of the reports
prepared by the FBI concerning the petitioner's whereabouts during
the material period (Annexes "L", "L-1" and "L-2" of the
Supplemental Petition dated August 14, 1995). In fact, not satisfied
with the decision of the DOJ Panel not to issue subpoena duces
tecum to Atty. Arturo L. Mercader, Jr., petitioner Webb filed a
"Petition for Injunction, Certiorari, Prohibition and Mandamus"
with the Regional Trial Court, Branch 63 of Makati in order to
compel said Atty. Mercader, Jr. to produce the first sworn statement
of Alfaro for submission to the DOJ Panel. (p. 4, Petition) The said
court dismissed the petition after Mercader produced and submitted
to the DOJ Panel the first sworn statement of Alfaro, without ruling
on the admissibility and credence of the two (2) conflicting and
inconsistent sworn statements of the principal witness, Alfaro.
(Attached hereto is a copy of the order of Judge Ruben A. Mendiola,
RTC-Makati, Branch 63 dated July 28, 1995) marked as Annex "F."
It must also be pointed out that despite the declaration by the

DOJ Panel that the preliminary investigation was to be
terminated after the hearing held on July 14, 1995, the panel
continued to conduct further proceedings, e.g. comparison of the
photo-copies of the submitted documents with the originals on
July 17, 1995. (p. 7, Petition) The panel even entertained the
"Response" submitted by accused Miguel Rodriguez on July 18,
1995. (p. 17 Resolution) In addition to these, the panel even
announced that any party may submit additional evidence before
the resolution of the case. (p. 8, Petition) From the time the panel
declared the termination of the preliminary investigation on July
14, 1995, twenty-seven (27) days elapsed before the resolution
was promulgated, and the information eventually filed in the
Regional Trial Court of Paraaque on August 10, 1995. This
notwithstanding the directive of Section 3(f) Rule 112 of the
Revised Rules of Court that the investigating officer shall
resolve the case within ten (10) days from the termination of the
preliminary investigation. The DOJ Panel precisely allowed the
parties to adduce more evidence in their behalf and for the panel
to study the evidence submitted more fully. This directly
disputes the allegation of the petitioners that the resolution was
done with indecent haste in violation of the rights of the
petitioners. During the period of twenty-seven (27) days, the
petitioners were free to adduce and present additional evidence
before the DOJ Panel.
Verily, petitioners cannot now assert that they were denied due
process during the conduct of the preliminary investigation
simply because the DOJ Panel promulgated the adverse
resolution and filed the Information in court against them.
Petitioners cannot also assail as premature the filing of the Information in
court against them for rape with homicide on the ground that they still
have the right to appeal the adverse resolution of the DOJ Panel to the
Secretary of Justice. The filing of said Information is in accord with
Department of Justice Order No. 223, series of 1993, dated June 25,
1993. We quote its pertinent sections, viz.:
Sec. 4. Non-Appealable Cases; Exceptions. No appeal may be
taken from a resolution of the Chief State Prosecutor/Regional
State Prosecutor/Provincial or City Prosecutor finding probable
causeexcept upon showing of manifest error or grave abuse of
discretion. Notwithstanding the showing of manifest error or
grave abuse of discretion, no appeal shall be entertained where

the appellant had already been arraigned. If the appellant is
arraigned during the pendency of the appeal, said appeal shall be
dismissed motu propio by the Secretary of Justice.
An appeal/motion for reinvestigation from a resolution finding
probable cause, however, shall not hold the filing of the information
in court.
Sec. 2. When to appeal. The appeal must be filed within a period
of fifteen (15) days from receipt of the questioned resolution by the
party or his counsel. The period shall be interrupted only by the filing
of a motion for reconsideration within ten (10) days from receipt of
the resolution and shall continue to run from the time the resolution
denying the motion shall have been received by the movant or his
counsel. (Emphasis supplied)
Without doubt then, the said DOJ Order No. 223 allows the filing of an
Information in court after the consummation of the preliminary investigation
even if the accused can still exercise the right to seek a review of the
prosecutor's recommendation with the Secretary of Justice.
Next, petitioners fault the DOJ Panel for not including Alfaro in the
Information considering her alleged conspiratorial participation in the crime
of rape with homicide. The non-inclusion of Alfaro is anchored on Republic
Act
No. 6981, entitled "An Act Providing For A Witness Protection, Security And
Benefit Program And For Other Purposes" enacted on April 24, 1991. Alfaro
qualified under its Section 10, which provides:
xxx xxx xxx
Sec. 10. State Witness. Any person who has participated in the
commission of a crime and desires to a witness for the State, can
apply and, if qualified as determined in this Act and by the
Department, shall be admitted into the Program whenever the
following circumstances are present:
(a) the offense in which his testimony will be used is a grave felony
as defined under the R.P.C. or its equivalent under special laws;
(b) there is absolute necessity for his testimony;
(c) there is no other direct evidence available for the proper
prosecution of the offense committed;
(d) his testimony can be substantially corroborated on its material
points;
(e) he does not appear to be most guilty; and

(f) he has not at anytime been convicted of any crime involving
moral turpitude.
An accused discharged from an information or criminal
complaint by the court in order that he may be a State Witness
pursuant to Sections 9 and 10 of Rule 119 of the Revised Rules
of Court may upon his petition be admitted to the Program if he
complies with the other requirements of this Act. Nothing in this
Act shall prevent the discharge of an accused so that he can be
used as a Witness under Rule 119 of the Revised Rules of Court.
Upon qualification of Alfaro to the program, Section 12 of the said law
mandates her non-inclusion in the criminal Complaint or Information,
thus:
xxx xxx xxx
Sec. 12. Effect of Admission of a State Witness into the Program.
The certification of admission into the Program by the
Department shall be given full faith and credit by the provincial
or city prosecutor who is required NOT TO INCLUDE THE
WITNESS
IN
THE
CRIMINAL
COMPLAINT
OR
INFORMATION and if included therein, to petition the court for
his discharge in order that he can be utilized as a State Witness.
The court shall order the discharge and exclusion of the said
accused from the information.
Admission into the Program shall entitle such State Witness to
immunity from criminal prosecution for the offense or offenses
in which his testimony will be given or used and all the rights
and benefits provided under Section 8 hereof.
The validity of these provisions is challenged by petitioner Webb. It is
urged that they constitute ". . . an intrusion into judicial prerogative for it
is only the court which has the power under the Rules on Criminal
Procedure to discharge an accused as a state witness." The argument is
based on Section 9, Rule 119 38which gives the court the prerogative to
approve the discharge of an accused to be a state witness. Petitioner's
argument lacks appeal for it lies on the faulty assumption that the
decision whom to prosecute is a judicial function, the sole prerogative of
courts and beyond executive and legislative interference. In truth, the
prosecution of crimes appertains to the executive department of
government whose principal power and responsibility is to see that our
laws are faithfully executed. A necessary component of this power to

execute our laws is the right to prosecute their violators. The right to
prosecute vests the prosecutor with a wide range of discretion the
discretion of whether, what and whom to charge, the exercise of which
depends on a smorgasbord of factors which are best appreciated by
prosecutors. We thus hold that it is not constitutionally impermissible for
Congress to enact R.A. No. 6981 vesting in the Department of Justice the
power to determine who can qualify as a witness in the program and who
shall be granted immunity from prosecution. 39 Section 9 of Rule 119 does
not support the proposition that the power to choose who shall be a state
witness is an inherent judicial prerogative. Under this provision, the court, is
given the power to discharge a state witness only because it has already
acquired jurisdiction over the crime and the accused. The discharge of an
accused is part of the exercise of jurisdiction but is not a recognition of an
inherent judicial function. Moreover, the Rules of Court have never been
interpreted to be beyond change by legislation designed to improve the
administration of our justice system. R.A. No. 6981 is one of the much sought
penal reform laws to help government in its uphill fight against crime, one
certain cause of which is the reticence of witnesses to testify. The rationale for
the law is well put by the Department of Justice, viz.: "Witnesses, for fear of
reprisal and economic dislocation, usually refuse to appear and testify in the
investigation/prosecution of criminal complaints/cases. Because of such
refusal, criminal complaints/cases have been dismissed for insufficiency
and/or lack of evidence. For a more effective administration of criminal
justice, there was a necessity to pass a law protecting witnesses and granting
them certain rights and benefits to ensure their appearance in investigative
bodies/courts." 40 Petitioner Webb's challenge to the validity of R.A. No.
6981 cannot therefore succeed.
Further, petitioners charge the NBI with violating their right to discovery
proceedings during their preliminary investigation by suppressing the April
28, 1995 original copy of the sworn statement of Alfaro and the FBI Report.
The argument is novel in this jurisdiction and as it urges an expansive reading
of the rights of persons under preliminary investigation it deserves serious
consideration. To start with, our Rules on Criminal Procedure do not
expressly provide for discovery proceedings during the preliminary
investigation stage of a criminal proceeding. 41 Sections 10 and 11 of Rule
117 do provide an accused the right to move for a bill of particulars and for
production or inspection of material evidence in possession of the
prosecution.42 But these provisions apply after the filing of the Complaint or
Information in court and the rights are accorded to the accused to assist them
to make an intelligent plea at arraignment and to prepare for trial. 43
This failure to provide discovery procedure during preliminary investigation
does not, however, negate its use by a person under investigation when
indispensable to protect his constitutional right to life, liberty and

property. Preliminary investigation is not too early a stage to guard
against any significant erosion of the constitutional right to due process
of a potential accused. As aforediscussed, the object of a preliminary
investigation is to determine the probability that the suspect committed a
crime. We hold that the finding of a probable cause by itself subjects the
suspect's life, liberty and property to real risk of loss or diminution. In the
case at bar, the risk to the liberty of petitioners cannot be understated for
they are charged with the crime of rape with homicide, a non-bailable
offense when the evidence of guilt is strong.
Attuned to the times, our Rules have discarded the pure inquisitorial
system of preliminary investigation. Instead, Rule 112 installed a quasijudicial type of preliminary investigation conducted by one whose high
duty is to be fair and impartial. 44 As this Court emphasized in Rolito Go
vs. Court of Appeals, 45 "the right to have a preliminary investigation
conducted before being bound over for trial for a criminal offense, and
hence formally at risk of incarceration or some other penalty, is not a
mere formal or technical right; it is a substantive right." A preliminary
investigation should therefore be scrupulously conducted so that the
constitutional right to liberty of a potential accused can be protected from
any material damage. We uphold the legal basis of the right of petitioners
to demand from their prosecutor, the NBI, the original copy of the April
28, 1995 sworn statement of Alfaro and the FBI Report during their
preliminary investigation considering their exculpatory character, and
hence, unquestionable materiality to the issue of their probable guilt. The
right is rooted on the constitutional protection of due process which we
rule to be operational even during the preliminary investigation of a
potential accused. It is also implicit in section (3) (a) of Rule 112 which
requires during the preliminary investigation the filing of a sworn
complaint, which shall ". . . state the known address of the respondent
and be accompanied by affidavits of the complainant and his witnesses as
well as other supporting documents . . ."
In laying down this rule, the Court is not without enlightened precedents
from other jurisdictions. In the 1963 watershed case of Brady
v. Maryland 46 the United States Supreme Court held that "suppression
of evidence favorable to an accused upon request violates due process
where the evidence is material to guilt or punishment, irrespective of the
good faith or bad faith of the prosecution." Its progeny is the 1935 case
of Mooney v. Holohan 47 which laid down the proposition that a
prosecutor's intentional use of perjured testimony to procure conviction
violates due process. Thus, evolved jurisprudence firming up the
prosecutor's duty to disclose to the defense exculpatory evidence in its

possession. 48 The rationale is well put by Justice Brennan in Brady 49
"society wins not only when the guilty are convicted but when criminal trials
are fair." Indeed, prosecutors should not treat litigation like a game of poker
where surprises can be sprung and where gain by guile is not punished.
But given the right of petitioners to compel the NBI to disclose exculpatory
evidence in their favor, we are not prepared to rule that the initial nonproduction of the original sworn statement of Alfaro dated April 28, 1995
could have resulted in the reasonable likelihood that the DOJ Panel would not
have found probable cause. To be sure, the NBI, on July 4, 1995, upon request
of petitioners, submitted a photocopy of Alfaro's April 28, 1995 sworn
statement. It explained it cannot produce the original as it had been lost.
Fortunately, petitioners, on July 28, 1995, were able to obtain a copy of the
original from Atty. Arturo Mercader in the course of the proceedings in Civil
Case No. 951099. 50 As petitioners admit, the DOJ Panel accepted the
original of Alfaro's April 28, 1995 sworn statement as a part of their
evidence. 51 Petitioners thus had the fair chance to explain to the DOJ Panel
then still conducting their preliminary investigation the exculpatory aspects of
this sworn statement. Unfortunately for petitioners, the DOJ Panel still found
probable cause to charge them despite the alleged material discrepancies
between the first and second sworn statements of Alfaro. For reasons we have
expounded, this finding of probable cause cannot be struck down as done with
grave abuse of discretion. 52 On the other hand, the FBI Report while
corroborative of the alibi of petitioner Webb cannot by itself reverse the
probable cause finding of the DOJ Panel in light of the totality of evidence
presented by the NBI.
Finally, we come to the argument of petitioner that the DOJ Panel lost its
impartiality due to the prejudicial publicity waged in the press and broadcast
media by the NBI.
Again, petitioners raise the effect of prejudicial publicity on their right to due
process while undergoing preliminary investigation. We find no procedural
impediment to its early invocation considering the substantial risk to their
liberty while undergoing a preliminary investigation.
In floating this issue, petitioners touch on some of the most problematic areas
in constitutional law where the conflicting demands of freedom of speech and
of the press, the public's right to information, and an accused's right to a fair
and impartial trial collide and compete for prioritization. The process of
pinpointing where the balance should be struck has divided men of learning as
the balance keeps moving either on the side of liberty or on the side of order
as the tumult of the time and the welfare of the people dictate. The dance of
balance is a difficult act to follow.
In democratic settings, media coverage of trials of sensational cases

cannot be avoided and oftentimes, its excessiveness has been aggravated
by kinetic developments in the telecommunications industry. For sure,
few cases can match the high volume and high velocity of publicity that
attended the preliminary investigation of the case at bar. Our daily diet of
facts and fiction about the case continues unabated even today.
Commentators still bombard the public with views not too many of which
are sober and sublime. Indeed, even the principal actors in the case the
NBI, the respondents, their lawyers and their sympathizers have
participated in this media blitz. The possibility of media abuses and their
threat to a fair trial notwithstanding, criminal trials cannot be completely
closed to the press and the public. In the seminal case of Richmond
Newspapers, Inc. v. Virginia, 53 it was wisely held:
xxx xxx xxx
(a) The historical evidence of the evolution of the criminal trial
in Anglo-American justice demonstrates conclusively that at the
time this Nation's organic laws were adopted, criminal trials both
here and in England had long been presumptively open, thus
giving assurance that the proceedings were conducted fairly to
all concerned and discouraging perjury, the misconduct of
participants, or decisions based on secret bias or partiality. In
addition, the significant community therapeutic value of public
trials was recognized: when a shocking crime occurs, a
community reaction of outrage and public protest often follows,
and thereafter the open processes of justice serve an important
prophylactic purpose, providing an outlet for community
concern, hostility, and emotion. To work effectively, it is
important that society's criminal process "satisfy the appearance
of justice," Offutt v. United States, 348 US 11, 14, 99 L Ed 11,
75 S Ct 11, which can best be provided by allowing people to
observe such process. From this unbroken, uncontradicted
history, supported by reasons as valid today as in centuries past,
it must be concluded that a presumption of openness inheres in
the very nature of a criminal trial under this Nation's system of
justice, Cf., e.g., Levine v. United States, 362 US 610, 4 L Ed 2d
989, 80 S Ct 1038.
(b) The freedoms of speech, press, and assembly, expressly
guaranteed by the First Amendment, share a common core
purpose of assuring freedom of communication on matters
relating to the functioning of government. In guaranteeing
freedoms such as those of speech and press, the First

Amendment can be read as protecting the right of everyone to attend
trials so as to give meaning to those explicit guarantees; the First
Amendment right to receive information and ideas means, in the
context of trials, that the guarantees of speech and press, standing
alone, prohibit government from summarily closing courtroom doors
which had long been open to the public at the time the First
Amendment was adopted. Moreover, the right of assembly is also
relevant, having been regarded not only as an independent right but
also as a catalyst to augment the free exercise of the other First
Amendment rights with which it was deliberately linked by
the draftsmen. A trial courtroom is a public place where the people
generally and representatives of the media have a right to be
present, and where their presence historically has been thought to
enhance the integrity and quality of what takes place.
(c) Even though the Constitution contains no provision which by its
terms guarantees to the public the right to attend criminal trials,
various fundamental rights, not expressly guaranteed, have been
recognized as indispensable to the enjoyment of enumerated rights.
The right to attend criminal trials is implicit in the guarantees of the
First Amendment; without the freedom to attend such trials, which
people have exercised for centuries, important aspects of freedom of
speech and of the press could be eviscerated.
Be that as it may, we recognize that pervasive and prejudicial publicity under
certain circumstances can deprive an accused of his due process right to fair
trial. Thus, in Martelino, et al. vs. Alejandro, et al., 54 we held that to warrant
a finding of prejudicial publicity there must be allegation and proof that the
judges have been unduly influenced, not simply that they might be, by the
barrage of publicity. In the case at bar, we find nothing in the records that will
prove that the tone and content, of the publicity that attended the investigation
of petitioners fatally infected the fairness and impartiality of the DOJ Panel.
Petitioners cannot just rely on the subliminal effects of publicity on the sense
of fairness of the DOJ Panel, for these are basically unbeknown and beyond
knowing. To be sure, the DOJ Panel is composed of an Assistant Chief State
Prosecutor and Senior State Prosecutors. Their long experience in criminal
investigation is a factor to consider in determining whether they can easily be
blinded by the klieg lights of publicity. Indeed, their 26-page Resolution
carries no indubitable indicia of bias for it does not appear that they
considered any extra-record evidence except evidence properly adduced by
the parties. The length of time the investigation was conducted despite its
summary nature and the generosity with which they accommodated the
discovery motions of petitioners speak well of their fairness. At no instance,
we note, did petitioners seek the disqualification of any member of the DOJ
Panel on the ground of bias resulting from their bombardment of

prejudicial publicity.
It all remains to state that the Vizconde case will move to a more critical
stage as petitioners will now have to undergo trial on the merits. We
stress that probable cause is not synonymous with guilt and while the
light of publicity may be a good disinfectant of unfairness, too much of
its heat can bring to flame an accused's right to fair trial. Without
imposing on the trial judge the difficult task of supervising every specie
of speech relating to the case at bar, it behooves her to be reminded of the
duty of a trial judge in high profile criminal cases to control publicity
prejudicial to the fair administration of justice. 55 The Court reminds
judges that our ability to dispense impartial justice is an issue in every
trial and in every criminal prosecution, the judiciary always stands as a
silent accused. More than convicting the guilty and acquitting the
innocent, the business of the judiciary is to assure fulfillment of the
promise that justice shall be done and is done and that is the only way
for the judiciary to get an acquittal from the bar of public opinion.
IN VIEW WHEREOF, the petitions are dismissed for lack of showing of
grave abuse of discretion on the part of the respondents. Costs against
petitioners.
SO ORDERED.
Regalado, J., concurs.
Mendoza, J., concurs in the result.
Narvasa, C.J., is on leave.

May a judge issue a warrant of arrest solely on the basis of the report and
recommendation of the investigating prosecutor, without personally determining
probable cause by independently examining sufficient evidence submitted by the
parties during the preliminary investigation?
The Case
This is the main question raised in these two consolidated petitions
for certiorari under Rule 65 of the Rules of Court challenging the
Sandiganbayan's August 25, 1992 Resolution 1 which answered the said query in
the affirmative.
The Facts

SUPREME COURT
Manila
EN BANC
G.R. No. 106632 October 9, 1997
DORIS TERESA HO, petitioner,
vs.
PEOPLE OF THE PHILIPPINES (represented by the Office of the Special
Prosecutor of the Ombudsman) and the SANDIGANBAYAN (Second
Division), respondents.
G.R. No. 106678 October 9, 1997
ROLANDO S. NARCISO, petitioner,
vs.
PEOPLE OF THE PHILIPPINES (represented by the Office of the Special
Prosecutor of the Ombudsman) and the SANDIGANBAYAN (Second
Division), respondents.
PANGANIBAN, J.:
Both petitions have the same factual backdrop. On August 8, 1991, the Anti-Graft
League of the Philippines, represented by its chief prosecutor and investigator,
Atty. Reynaldo L. Bagatsing, filed with the Office of the Ombudsman a
complaint 2 against Doris Teresa Ho, Rolando S. Narciso (petitioners in G.R. Nos.
106632 and 106678, respectively), Anthony Marden, Arsenio Benjamin Santos
and Leonardo Odoo. The complaint was for alleged violation of Section 3 (g) of
Republic Act 3019 3 prohibiting a public officer from entering into any contract or
transaction on behalf of the government if it is manifestly and grossly
disadvantageous to the latter, whether or not the public officer profited or will
profit thereby. After due notice, all respondents therein filed their respective
counter-affidavits with supporting documents. On January 8, 1992, Graft
Investigation Officer Titus P. Labrador (hereafter, "GIO Labrador") submitted his
resolution 4 with the following recommendations:
WHEREFORE, all premises considered, it is respectfully
recommended that an information for violation of Section 3 (g)
of R.A. 3019 as amended be filed against respondent Rolando S.
Narciso before the Sandiganbayan.
It is likewise recommending that the case against the other
respondents be DISMISSED for insufficiency of evidence.
However, after a review of the above resolution, Special Prosecution Officer
Leonardo P. Tamayo (hereafter "SPO Tamayo") recommended that
both Rolando Narciso and Doris Teresa Ho be charged with violation of Section 3
(e) of R.A. 3019. The resolution of GIO Labrador, as modified by the
memorandum 5 of SPO Tamayo, was approved by Ombudsman Conrado M.
Vasquez on May 5, 1992. Thus, herein petitioners were charged accordingly
before the Sandiganbayan in an information 6filed on May 18, 1992. Attached to
the information were the resolution of GIO Labrador and the memorandum of
SPO Tamayo. The said information reads:
The undersigned Special Prosecution Officer III, Office of the

Special Prosecutor, hereby accuses ROLANDO NARCISO and
DORIS TERESA HO, President of National Marine Corporation, of
violation of Section 3(e) of RA 3019, as amended, committed as
follows:
That on or about April 4, 1989, and for sometime
prior and/or subsequent thereto, in the City of
Manila, Philippines and within the jurisdiction of
this Honorable Court, the above-named accused
ROLANDO NARCISO, a public officer, being then
the Vice-President of the National Steel
Corporation (NSC), a government-owned or
controlled corporation organized and operating
under the Philippine laws, and DORIS TERESA
HO, a private individual and then the President of
National Marine Corporation (NMC), a private
corporation organized and operating under our
Corporation law, conspiring and confederating with
one another, did then and there wilfully, unlawfully
and criminally, with evident bad faith and through
manifest partiality, cause undue injury to the
National Steel Corporation (NSC), by entering
without legal justification into a negotiated contract
of affreightment disadvantageous to the NSC for
the haulage of its products at the rate of
P129.50/MT, from Iligan City to Manila, despite
their full knowledge that the rate they have agreed
upon was much higher than those offered by the
Loadstar Shipping Company, Inc. (LSCI) and
Premier Shipping Lines, Inc. (PSLI), in the
amounts of P109.56 and P123.00 per Metric Ton,
respectively, in the public bidding held on June 30,
1988, thereby giving unwarranted benefits to the
National Marine Corporation, in the total sum of
One Million One Hundred Sixteen Thousand Fifty
Two Pesos and Seventy Five Centavos
(P1,116,052.75), Philippine Currency, to the
pecuniary damage and prejudice of the NSC in the
aforestated sum. The said offense was committed
by Rolando S. Narciso in the performance of his
official functions as Vice-President of the National
Steel Corporation.
CONTRARY TO LAW.
Acting on the foregoing information, the Sandiganbayan issued the now

questioned warrant of arrest against Petitioners Ho and Narciso. Petitioner Ho
initially questioned the issuance thereof in an "Urgent Motion to Recall Warrant of
Arrest/Motion for Reconsideration" which was adopted by Petitioner Narciso.
They alleged that the Sandiganbayan, in determining probable cause for the
issuance of the warrant for their arrest, merely relied on the information and the
resolution attached thereto, filed by the Ombudsman without other supporting
evidence, in violation of the requirements of Section 2, Article III of the
Constitution, and settled jurisprudence. Respondent Sandiganbayan denied said
motion in the challenged Resolution. It ratiocinated in this wise.
Considering, therefore, that this Court did not rely solely on
the certification appearing in the information in this case in the
determination of whether probable cause exists to justify the
issuance of the warrant of arrest but also on the basis
predominantly shown by the facts and evidence appearing in the
resolution/memorandum
of
responsible
investigators/prosecutors, then the recall of the warrant of arrest,
or the reconsideration sought for, cannot be granted. More so,
when the information, as filed, clearly shows that it is sufficient
in form and substance based on the facts and evidence adduced
by both parties during preliminary investigation. To require this
Court to have the entire record of the preliminary investigation
to be produced before it, including the evidence submitted by the
complainant and the accused-respondents, would appear to be an
exercise in futility.
Thus, these petitions.
The Issue
Petitioner Ho raises this sole issue:
May a judge determine probable cause and issue [a] warrant of
arrest solely on the basis of the resolution of the prosecutor (in
the instant case, the Office of the Special Prosecutor of the
Ombudsman)
who
conducted
the
preliminary
investigation, without having before him any of the evidence
(such as complainant's affidavit, respondent's counter-affidavit,
exhibits, etc.) which may have been submitted at the preliminary
investigation? 7
In his separate petition, Rolando S. Narciso adopts the foregoing and raised no
other distinct issue.
Petitioners Ho and Narciso similarly contend that a judge, in personally

determining the existence of probable cause, must have before him sufficient evidence
submitted by the parties, other than the information filed by the investigating
prosecutor, to support his conclusion and justify the issuance of an arrest warrant. Such
evidence should not be "merely described in a prosecutor's resolution." Citing People
vs. Inting, 8 petitioners insist that the judge "must have before him 'the report, the
affidavits, the transcripts of stenographic notes (if any), and all other supporting
documents which are material in assisting the judge to make his determination.'"
The Court's Ruling
The petitions are meritorious.
The pertinent provision of the Constitution reads:
Sec. 2 [Article III]. 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. (Emphasis
supplied.)
In explaining the object and import of the aforequoted constitutional mandate,
particularly the power and the authority of judges to issue warrants of arrest, the Court
elucidated in Soliven vs. Makasiar 9:
What the Constitution underscores is the exclusive and personal
responsibility of the issuing judge to satisfy himself of the existence
of probable cause. In satisfying himself of the existence of probable
cause for the issuance of a warrant of arrest, the judge is not required
to personally examined the complainant and his witnesses. Following
established doctrine and procedure, he shall: (1) personally evaluate
the report and the supporting documents submitted by the fiscal
regarding the existence of probable cause and, on the basis thereof,
issue a warrant of arrest; or (2) if on the basis thereof he finds no
probable cause, he may disregard the fiscal's report and require the
submission of supporting affidavits of witnesses to aid him in
arriving at a conclusion as to the existence of probable
cause. 10 [emphasis supplied]
We should stress that the 1987 Constitution requires the judge to determine probable
cause "personally." The word "personally" does not appear in the corresponding
provisions of our previous Constitutions. This emphasis shows the present
Constitution's intent to place a greater degree of responsibility upon trial judges than
that imposed under the previous Charters.

While affirming Soliven, People vs. Inting 11 elaborated on what "determination
of probable cause" entails, differentiating the judge's object or goal from that of
the prosecutor's.
First, the determination of probable cause is a function of the
Judge. It is not for the Provincial Fiscal or Prosecutor nor for the
Election Supervisor to ascertain. Only the Judge and the Judge
alone makes this determination.
Second, the preliminary inquiry made by a Prosecutor does not
bind the Judge. It merely assists him to make the determination
of probable cause. The Judge does not have to follow what the
Prosecutor presents to him. By itself, the Prosecutor's
certification of probable cause is ineffectual. It is the report, the
affidavits the transcripts of stenographic notes (if any), and all
other supporting documents behind the Prosecutor's certification
which
are
material
in
assisting
the
Judge
to
make hisdetermination.
And third, Judges and Prosecutors alike should distinguish the
preliminary inquiry which determines probable cause for the
issuance of a warrant of arrest from the preliminary investigation
proper which ascertains whether the offender should be held for
trial or released. Even if the two inquiries are conducted in the
course of one and the same proceeding, there should be no
confusion about the objectives. The determination of probable
cause for the warrant of arrest is made by the Judge. The
preliminary investigation proper whether or not there is
reasonable ground to believe that the accused is guilty of the
offense charged and, therefore, whether or not he should be
subjected to the expense, rigors and embarrassment of trial is
the function of the Prosecutor. 12
And clarifying the statement in People vs. Delgado 13 that the "trial court may
rely on the resolution of the COMELEC to file the information, by the same token
that it may rely on the certification made by the prosecutor who conducted the
preliminary investigation, in the issuance of the warrant of arrest" this Court
underscored in Lim Sr. vs.Felix 14 that "[r]eliance on the COMELEC resolution or
the Prosecutor's certification presupposes that the records of either the COMELEC
or the Prosecutor have been submitted to the Judge and he relies on the
certification or resolution because the records of the investigation sustain the
recommendation." We added, "The warrant issues not on the strength of the
certification standing along but because of the records which sustain it." Summing

up, the Court said:
We reiterate the ruling in Soliven vs. Makasiar that the Judge does
not have to personally examine the complainant and his witnesses.
The Prosecutor can perform the same functions as a commissioner
for the taking of the evidence. However, there should be a
report and necessary documents supporting the Fiscal's bare
certification. All of these should be before the Judge.
The extent of the Judge's personal examination of the report and its
annexes depends on the circumstances of each case. We cannot
determine beforehand how cursory or exhaustive the Judge's
examination should be. The Judge has to exercise sound discretion
for, after all, the personal determination is vested in the Judge by the
Constitution. It can be as brief or as detailed as the circumstances of
each case require. To be sure, the Judge must go beyond the
Prosecutor's certification and investigation report whenever
necessary. He should call for [the] complainant and [the] witnesses
themselves to answer the court's probing questions when the
circumstances of the case so require. 15 [emphasis supplied]
The above rulings in Soliven, Inting and Lim Sr. were iterated in Allado
vs. Diokno 16 where we explained again what probable cause means. Probable cause
for the issuance of a warrant of arrest is the existence of such facts and circumstances
that would lead a reasonably discreet and prudent person to believe that an offense has
been committed by the person sought to be arrested. 17 Hence, the judge, before
issuing a warrant of arrest, "must satisfy himself that based on the evidence submitted
there is sufficient proof that a crime has been committed and that the person to be
arrested is probably guilty thereof." 18 At this stage of the criminal proceeding, the
judge is not yet tasked to review in detail the evidence submitted during the
preliminary investigation. It is sufficient that he personally evaluates such evidence in
determining probable cause. 19 In Webb vs. De Leon, 20 we stressed that the judge
merely determines the probability, not the certainty, of guilt of the accused and, in
doing so, he need not conduct a de novo hearing. He simply personally reviews the
prosecutor's initial determination finding probable cause to see if it is supported by
substantial evidence.
In the recent case of Roberts Jr. vs. Court of Appeals, 21 this Court's application of the
dictum laid down in Soliven affirmed and fortified in Inting, Lim
Sr., Allado and Webb should lay to rest the issue raised in the instant petitions.
InRobets Jr., this Court, through Mr. Justice Hilario G. Davide, Jr., set aside the order
of the respondent judge directing inter alia the issuance of warrants of arrest against
the accused, reasoning that said judge did not personally determine the existence of
probable cause, since he had "only the information, amended information, and Joint
Resolution as bases thereof. He did not have the records or evidence supporting the
prosecutor's finding of probable cause."

In like manner, herein Respondent Sandiganbayan had only the information filed
by the Office of the Ombudsman, the thirteen-page resolution of the investigating
officer and the three-page memorandum of the prosecution officer, when it issued
the warrant of arrest against the petitioners. The latter two documents/reports even
had dissimilar recommendations the first indicting only Petitioner Narciso, the
second including Petitioner Ho. This alone should have prompted the public
respondent to verify, in the records and other documents submitted by the parties
during the preliminary investigation, whether there was sufficient evidence to
sustain the Ombudsman's action charging both petitioners with violation of Sec.
3(e) of Anti-Graft law. But in its initial justification of the issuance of the warrant,
the Sandiganbayan simply said:
JUSTICE ESCAREAL:
xxx xxx xxx
But in this particular case we believe there is prima facie case
based on our examination of the resolution because we believe,
we think the Ombudsman will not approve a resolution just like
that, without evidence to back it up. 22
In attempting to further justify its challenged action, the public respondent
explained in its assailed Resolution.
In the instant case, there are attached to the information, two (2)
Memorandum/Resolution (sic) emanating from the Offices of
the Ombudsman and the Special Prosecutor (Pp. 4-6, 7-19,
respectively, Record) which clearly and indubitably
established, firstly, the conduct of a due and proper preliminary
investigation, secondly, the approval by proper officials clothed
with statutory authority; and thirdly, the determination and
ascertainment of probable caused based on the documentary
evidence submitted by the complainant (Anti-Graft League of
the Philippines), foremost among which is the Contract of
Affreightment entered into between National Steel Corporation
(NSC), and National Marine Corporation (NMC) and the COANSC audit report, together with the counter-affidavits of accused
Rolando Narciso and NMC officials, among whom is accusedmovant. Outlined in detail in the aforesaid Resolution of Titus P.
Labrador, Graft Investigation Officer II, which was reviewed by
Attys. Romeo I. Tan and Arturo Mojica, Director, Community
Coordination Bureau and Assistant Ombudsman, PACPO,
[respectively,] are the facts leading to the questioned transaction
between NSC and NMC, together with an evaluation of the

propriety and legality of the bidding process involved therein and
which revealed that there were supposed non-compliance with proper
bidding procedures. GIO Labrador's findings and recommendations,
extensively set out in his thirteen-page resolution, is complemented
by the three-page Memorandum of Special Prosecution Officer II
Leonardo P. Tamayo, both of which meticulously delved into the
merits and demerits of the evidence presented by the complainant
and accused-respondents and which resulted in their respective
recommendation which led the Honorable Conrado M. Vasquez to
approve the recommendations of Deputy Special
Prosecutor Jose de G. Ferrer and Special Prosecutor Aniano A.
Desierto for the filling of the information in the case at bar.
xxx xxx xxx
Considering, therefore, that this Court did not rely solely on
the certification appearing in the information in this case in the
determination of whether probable cause exists to justify the issuance
of the warrant of arrest but also on the basis predominantly shown by
the facts and evidence appearing in the resolution/memorandum of
responsible investigators/prosecutors, then the recall of the warrant
of arrest, or the reconsideration sought for, cannot be granted. More
so, when the information, as filed, clearly shows that it is sufficient in
form and substance based on the facts and evidence adduced by both
parties during the preliminary investigation. To require this Court to
have the entire record of the preliminary investigation to be produced
before it, including the evidence submitted by the complainant and
the accused-respondents, would appear to be an exercise in
futility. 23
In light of the aforecited decisions of this Court, such justification cannot be upheld.
Lest we be too repetitive, we only wish to emphasize three vital matters once
more: First, as held in Inting, the determination of probable cause by the prosecutor is
for a purpose different from that which is to be made by the judge. Whether there is
reasonable ground to believe that the accused is guilty of the offense charged and
should be held for trial is what the prosecutor passes upon. The judge, on the other
hand, determines whether a warrant of arrest should be issued against the accused, i.e.
whether there is a necessity for placing him under immediate custody in order not to
frustrate the ends of justice. 24 Thus, even if both should base their findings on one
and the same proceeding or evidence, there should be no confusion as to their distinct
objectives.
Second, since their objectives are different, the judge cannot rely solely on the report
of the prosecutor in finding probable cause to justify the issuance of a warrant of
arrest. Obviously and understandably, the contents of the prosecutor's report will
support his own conclusion that there is reason to charge the accused of an offense
and hold him for trial. However, the judge must decide independently. Hence, he
must have supporting evidence,other than the prosecutor's bare report, upon
which to legally sustain his own findings on the existence (or nonexistence) of
probable cause to issue an arrest order. This responsibility of determining
personally and independently the existence or nonexistence of probable cause is
lodged in him by no less than the most basic law of the land. Parenthetically, the
prosecutor could ease the burden of the judge and speed up the litigation process
by forwarding to the latter not only the information and his bare resolution finding
probable cause, but also so much of the records and the evidence on hand as to
enable His Honor to make his personal and separate judicial finding on whether to
issue a warrant of arrest. 25
Lastly, it is not required that the complete or entire records of the
case during the preliminary investigation be submitted to and examined by the
judge. 26 We do not intend to unduly burden trial courts by obliging them to
examine the complete records of every case all the time simply for the purpose of
ordering the arrest of an accused. What is required, rather, is that the judge must
have sufficient supporting documents (such as the complaint, affidavits, counteraffidavits, sworn statements of witnesses or transcripts of stenographic notes, if
any) upon which to make his independent judgment or, at the very least, upon
which to verify the findings of the prosecutor as to the existence of probable
cause. The point is: he cannot rely solely and entirely on the prosecutor's
recommendation, as Respondent Court did in this case. Although the prosecutor
enjoys the legal presumption of regularity in the performance of his official duties
and functions, which in turn gives his report the presumption of accuracy, the
Constitution we repeat, commands the judge to personally determine probable
cause in the issuance of warrants of arrest. This Court has consistently held that a
judge fails in his bounden duty if he relies merely on the certification or the report
of the investigating officer.
True, in Webb vs. De Leon, we found that "the painstaking recital and analysis of
the parties' evidence made in the DOJ Panel Report satisfied both judges that there
[was] probable cause to issue warrants of arrest against petitioners." This
statement may have been wrongly construed by the public respondent to mean that
the narration or description of portions of the evidence in the prosecutor's report
may serve as sufficient basis to make its own independent judgment. What it
should bear in mind, however, is that, aside from the 26-page report of the DOJ
panel, the sworn statements of three witnesses and counter-affidavits of the
petitioners in Webb were also submitted to the trial court, and the latter is
presumed to have reviewed these documents as well, prior to its issuance of the
warrants of arrest.

In the instant case, the public respondent relied fully and completely upon the
resolution of the graft investigation officer and the memorandum of the reviewing
prosecutor, attached to the information filed before it, and its conjecture that the
Ombudsman would not have approved their recommendation without supporting
evidence. It had no other documents from either the complainant (the Anti-Graft
League of the Philippines) or the People from which to sustain its own conclusion that
probable cause exists. Clearly and ineluctably, Respondent Court's findings of "the
conduct of a due and proper preliminary investigation" and "the approval by the proper
officials clothed with statutory authority"
are not
equivalent
to
the independent and personal responsibility required by the Constitution and settled
jurisprudence. At least some of the documentary evidence mentioned (Contract of
Affreightment between National Steel Corporation and National Marine Corporation,
the COA-NSC audit report, and counter-affidavits of Rolando Narciso and NMC
officials), upon which the investigating officials of the Ombudsman reportedly
ascertained the existence of probable cause, should have been physically present
before the public respondent for its examination, to enable it to determine on its own
whether there is substantial evidence to support the finding of probable cause. But is
stubbornly stood pat on its position that it had essentially complied with its
responsibility. Indisputably, however, the procedure it undertook contravenes the
Constitution and settled jurisprudence. Respondent Court palpably committed grave
abuse of discretion in ipso facto issuing the challenged warrant of arrest on the sole
basis of the prosecutor's findings and recommendation, and without determining on its
own the issue of probable cause based on evidence other than such bare findings and
recommendation.
WHEREFORE, the petitions are GRANTED and the assailed Resolution is SET
ASIDE. The warrant issued by the Sandiganbayan (Second Division) on May 20, 1992
in Case No. 17674 for the arrest of Petitioners Doris Teresa Ho and Rolando Narciso is
hereby declared NULL AND VOID.
SO ORDERED.
Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan,
Mendoza, Francisco, Hermosisima, Jr. and Torres, Jr., JJ., concur.

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Rule 112 preliminary investigation

Republic of the Philippines

Rule 112 preliminary investigation

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

Rule 112 preliminary investigation

escaped while being transferred from one confinement to

Rule 112 preliminary investigation

must be secured. After such reinvestigation the finding and

Rule 112 preliminary investigation

petitioner was entitled to be released on bail as a matter of right.

Rule 112 preliminary investigation

Republic of the Philippines

Meantime, petitioner is hereby ORDERED released forthwith upon posting of a cash

ALVAREZ ARO YUSOP, petitioner,

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

February 22, 2001

Rule 112 preliminary investigation

Rule 112 preliminary investigation

Rule 112 preliminary investigation

Republic of the Philippines

Rule 112 preliminary investigation

2. Advance payment of P1.7M was made to Systems Plus, Inc. covering

3. The cost of computer hardware and accessories under contract with

Thereafter, sometime in February 1991, a complaint docketed as Civil Case No.

Rule 112 preliminary investigation

Rule 112 preliminary investigation

Rule 112 preliminary investigation

jurisdiction of the Sandiganbayan and Regional Trial Courts shall be

Rule 112 preliminary investigation

investigation, what the respondent is required to file is a counter-affidavit, not a

Rule 112 preliminary investigation

the Tanodbayan in the instant case to be violative of the constitutional

Rule 112 preliminary investigation

Rule 112 preliminary investigation

Republic of the Philippines

on Metrobank Cavite City Branch. According to private respondent, petitioner

RUTH D. BAUTISTA, petitioner,

Rule 112 preliminary investigation

Rule 112 preliminary investigation

Rule 112 preliminary investigation

Rule 112 preliminary investigation

Rule 112 preliminary investigation

Rule 112 preliminary investigation

(c) Such counter-affidavits and other supporting evidence

Rule 112 preliminary investigation

Second Affidavit: They "entered the gate

Rule 112 preliminary investigation

Gaviola, former housemaids of the Webbs, Carlos J. Cristobal, a passenger in

Rule 112 preliminary investigation

Rule 112 preliminary investigation

witness for the prosecution (People vs. Onpaid, 233 SCRA 62

Rule 112 preliminary investigation

with respect to issuance of warrants of arrest or search warrants. The

Rule 112 preliminary investigation

cases filed before their courts.

Rule 112 preliminary investigation

It must also be pointed out that despite the declaration by the

Rule 112 preliminary investigation

(e) he does not appear to be most guilty; and

Rule 112 preliminary investigation

indispensable to protect his constitutional right to life, liberty and

Rule 112 preliminary investigation

In democratic settings, media coverage of trials of sensational cases

Rule 112 preliminary investigation