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Buchanan v. Vda. De Esteban, 32 Phil. 365

It appears from the record that on the 16th day of September, 1913, the defendant in this case laid a
complaint against the plaintiff before the justice of the peace of Iloilo charging him with assault in that
he, that day, struck the 13-year-old son of the complaining witness with a thrown stone. The accused
was convicted in the justice's court but, on appeal to the Court of First Instance, was acquitted, the
court stating in the judgment of acquittal that the defendant "was authorized if he saw fit to bring suit
against the plaintiff for damages for malicious prosecution." Under that declaration and alleged
authorization the accused brought this action.chanroblesvirtualawlibrary chanrobles virtual law library

We are of the opinion that the judgment must be reversed and the complaint dismissed on the merits.
The plaintiff is not entitled to recover as he has not shown that the prosecution was without probable
cause and that it was malicious.chanroblesvirtualawlibrary chanrobles virtual law library

To support an action for malicious prosecution under American law the plaintiff must prove, in the first
place, the fact of the prosecution and the fact that the defendant was himself to prosecutor, or that he
instigated its commencement, and that it finally terminated in his acquittal; that, in bringing it, the
prosecutor had acted without probable cause, and that he was actuated by a legal malice, i.e., by
improper or sinister motives. These three elements must concur; and there is no distinction between
actions for criminal prosecutions and civil suits. Both classes require substantially the same
essentials. Malice is essential to the maintenance of an action for malicious prosecution and not
merely to the recovery of exemplary damages. But malice alone does not make one liable for
malicious prosecution, where probable cause if shown, even where it appears that the suit was
brought for the mere purpose of vexing, harassing and injuring his adversary. In other words, malice
and want of probable cause must both exist in order to justify the
action.chanroblesvirtualawlibrary chanrobles virtual law library

Probable cause is 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. The general rule is well settled that one cannot
be held liable in damages for maliciously instituting a prosecution where he acted with probable
cause. In other words, a suit will lie only in cases where a legal prosecution has been carried on
without probable cause. And the reason for the rule, as stated by blackstone, is "that it would be a
very great discouragement to public justice if prosecutors, who had a tolerable ground of suspicion,
were liable to be used at law whenever their indictments miscarried." chanrobles virtual law library

It has been held that it is a good defense to an action for malicious prosecution that the defendant
acted bona fide, upon legal advice, as this negatives want of reasonable and probable cause.
(Stewart vs.Sonneborn, 98 U.S., 187.) It has also been held that a judgment of a court in favor of
plaintiff is conclusive proof of probable cause, notwithstanding the case was subsequently reversed
by the appellate court. (Crescent City Live-Stock Landing, etc. Co. vs. Butchers' Union, etc. Co., 120
U.S., 141.) chanrobles virtual law library

In the case before us the justice of the peace convicted Buchanan of the crime charged and
sentenced him accordingly. If this fact in itself is not sufficient to demonstrate conclusively the good
faith of the complaint, the other facts appearing of record are more than sufficient to supply the
deficiency. It nowhere appears in the case that the complainant was actuated by improper or sinister
motives in her prosecution of the case against the plaintiff. It cannot be said, because there is no
evidence to that effect, that she knew that she was prosecuting an innocent person. She accepted the
statement of her boy that it was Buchanan who threw the stone that hit him; and, while Buchanan
always denied the charge, there is nothing in the record which would require the complainant to
accept the statement of Buchanan rather than that of her son. As a necessary consequence, there is
a failure to prove lack of probable cause or malice. Indeed, in one or two places in the opinion of the
trial court there are sentences which seems to go a considerable way in admitting the good faith of
the complainant, although it seems that, finally, the court made the declaration with reference to
malice which we have already quoted.chanroblesvirtualawlibrary chanrobles virtual law library

The Philippine law does not differ in any substantial feature from the American law on this subject.
Under the Penal Code, three elements are necessary to constitute the crime known as false
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accusation: (1) The facts constituting the crime must have been falsified by the complainant; (2) the
facts as stated by the complainant must be such as to constitute a crime under the Penal Code which
the government may prosecute of its own motion; and (3) the complaint must have been made a
judicial or administrative official who, by reason of his office, is required to investigate and punish the
acts complained of.chanroblesvirtualawlibrary chanrobles virtual law library

In order to constitute the crime above referred to the complainant must make a false charge, with
knowledge of its falsity. It is to be noted that the article of the Penal Code punishing false accusation
is found in chapter 6, which is headed "The fraudulent concealment of property or business, false
testimony, and false accusation and complaint." In cases of false testimony or perjury this court has
held on several occasions that corrupt intent is necessary, although such intent need not be proved
separately, as it may be inferred from the fact that the testimony was false and from all the
circumstances of the case. In the same way, to constitute the crime of false accusation, there must
not only be a false accusation, but the accusation must have been willful, that is, it must have been
made knowing its falsity. (Decisions of supreme court of Spain, April 28, 1897; April 30, 1884.) While
this is the case, it is not necessary to prove the intent as a separate element. It may be inferred from
the falsity of the facts charged and from all the circumstances of the
case.chanroblesvirtualawlibrary chanrobles virtual law library

Under the Spanish law the element of probable cause was not treated separately from that of malice,
as under the American law. When a complaint was laid and there was probable cause to believe that
the person charged had committed the acts complained of, although, as a matter of fact, he had not,
the complainant was fully protected, but not so much on the theory of probable cause as on the
ground that, under such circumstances, there was no intent to accuse falsely. If the charge, although
false, was made with an honest belief in its truth and justice, and there were reasonable grounds on
which such a belief could be founded, the accusation could not be held to have been false in the legal
sense. (See authorities above.) chanrobles virtual law library

In the case at bar the complainant, in good faith, accepted the story of her son and, in the honest
belief that he had been assaulted by Buchanan, laid a complaint before the justice of the peace of the
locality looking to the punishment of the person guilty of the crime. She was fully justified in the belief
that her son had told the truth by the decision of the justice of the peace, who held Buchanan guilty as
charged. While the charge may have been false, it was not the falsity of the complainant; and while it
may have been malicious, we cannot, on the record, and especially after the judgment of the justice
of the peace, find it to be so.chanroblesvirtualawlibrary chanrobles virtual law library

In conclusion, it may be stated that the declaration of the Court of First Instance, or any other court, in
a criminal action, that the charge is false and that the person making it should be prosecuted
criminally or civilly, is not conclusive of the question of whether the charge is false in an action based
on such declaration. The falsity of the charge is a question to be determined in the trial of that action
and is open to the proof of both parties, the accused being permitted to deny it and to offer evidence
showing any fact tending to support his denial.

Webb v. De Leon, 247 SCRA 652

FACTS:

On June 19, 1994, the National Bureau of Investigation filed with the DOJ a letter-complaint charging
petitioners Hubert Webb, Michael Gatchalian, Antonio J. Lejano and 6 other persons with the crime of
Rape and Homicide of Carmela N. Vizconde, her mother Estrellita Nicolas-Vizconde, and her sister
Anne Marie Jennifer in their home at Number 80 W. Vinzons, St., BF Homes, Paranaque, Metro
Manila on June 30, 1991.

Forthwith, the DOJ formed a panel of prosecutors headed by Asst Chief State Prosecutor Jovencio R.
Zuno to conduct the preliminary investigation.

Petitioners: fault the DOJ Panel for its finding of probable cause. They assail the credibility of
Jessica Alfaro as inherently weak and uncorroborated due to her inconsistencies between her April
28, 1995 and May 22, 1995 sown statements. They criticize the procedure followed by the DOJ Panel
when it did not examine witnesses to clarify the alleged inconsistencies.
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charge that respondent Judge Raul de Leon and respondent Judge Amelita Tolentino issued
warrants of arrest against them without conducting the required preliminary examination.

Complain about the denial of their constitutional right to due process and violation of their right to an
impartial investigation. They also assail the prejudicial publicity that attended their preliminary
investigation.

ISSUES:

(1) Did the DOJ Panel gravely abuse its discretion in holding that there is probable cause to charge
accused with crime of rape and homicide?

(2) Did respondent judges de Leon and Tolentino gravely abuse their discretion when they failed to
conduct a preliminary examination before issuing warrants of arrest against the accused?

(3) Did the DOJ Panel deny them their constitutional right to due process during their preliminary
investigation?

(4) Did the DOJ Panel unlawfully intrude into judicial prerogative when it failed to charge Jessica
Alfaro in the information as an accused?

HELD:

(1) NO. Valid determination -- A 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.

(2) NO. Valid arrest -- In arrest cases, there must be a probable cause that a crime has been
committed and that the person arrested committed it.

Section 6 of Rule 112 provides that upon filing of an information, the RTC may issue a warrant for
the accused.

Clearly then, our laws repudiate the submission that respondent judges should have conducted
searching examination of witnesses before issuing warrants of arrest against them.

(3) NO. There is no merit in this contention because petitioners were given all the opportunities to be
heard.

The DOJ Panel precisely requested the parties to adduce more evidence in their behalf and for the
panel to study the evidence submitted more fully.

(4) NO.

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 whose principal power and
responsibility is to see that our laws are faithfully executed. A necessary component of this right is to
prosecute their violators.
NBI Microsoft Corp. v. Hwang, 460 SCRA 429

In May 1993, Microsoft Corporation and Beltron Computer Philippines, Inc. entered into a Licensing
Agreement. Under Section 2(a) of the Agreement, Microsoft authorized Beltron, for a fee, to:
1. Reproduce and install no more than one copy of Windows on each Customer System hard disk;
 4

2. Distribute directly or indirectly and license copies of Windows (reproduced as per Section 2 of the
Agreement and/or acquired from an Authorized Replicator or Authorized Distributor.
Their agreement allowed either party to terminate if one fails to comply with their respective
obligations. Microsoft terminated the Agreement in June 1995 by reason of Beltrons non-payment of
royalties. Later, Microsoft learned that Beltron was illegally copying and selling copies of Windows.
Microsoft then sought the assistance of the National Bureau of Investigation. NBI agents made some
purchase from Beltron where they acquired a computer unit pre-installed with Windows, 12 windows
installer CDs packed as Microsoft products. The agents were not given the end-user license
agreements, user manuals, and certificates of authenticity for the products purchased. They were
given a receipt which has a header of T.M.T.C. (Phils) Inc. BELTRON COMPUTER. TMTC stands
for Taiwan Machinery Display and Trade Center.
A search warrant was subsequently issued where 2,831 CDs of Windows installers, among others,
were seized. Based on the items seized from Beltron, Microsoft filed a case of copyright infringement
against Beltron and TMTC as well as their officers (Judy Hwang et al) before the Department of
Justice (DOJ). Beltron, in its counter-affidavit, argued the following:
1. That Microsofts issue with Beltron was really just to have leverage in forcing Beltron to pay the
unpaid royalties; and that Microsoft should have filed a collection suit.
2. That the computer unit allegedly purchased by the NBI agents from them cannot be decisively
traced as coming from Beltron because the receipt issued to the agents did not list the computer unit
as one of the items bought.
3. That the 12 installers purchased by the agents which are actually listed in the receipt were not
manufactured by Beltron but rather they were genuine copies purchased by TMTC from an
authorized Microsoft seller in Singapore.
4. That the 2,831 installers seized from them were not a property of Beltron but rather they were left
to them by someone for safekeeping.
The DOJ secretary agreed with Beltron and dismissed the case. The Secretary ruled that the issue of
the authority of Beltron to copy and sell Microsoft products should first be resolved in a civil suit.
Microsoft appealed the decision of the DOJ secretary before the Supreme Court. Meanwhile, Beltron
filed a motion to quash the search warrant before the RTC that issued the same. The RTC partially
granted the quashal. The Court of Appeals reversed the RTC. Hwang et al did not appeal the CA
decision.
ISSUE: Whether or not the DOJ Secretary is correct.
HELD: No. Section 5 of Presidential Decree 49 enumerates the rights vested exclusively on the
copyright owner. Contrary to the DOJs ruling, the gravamen of copyright infringement is not merely
the unauthorized manufacturing of intellectual works but rather the unauthorized performance of any
of the acts covered by Section 5. Hence, any person who performs any of the acts under Section 5
without obtaining the copyright owners prior consent renders himself civilly and criminally liable for
copyright infringement.
Infringement of a copyright is a trespass on a private domain owned and occupied by the owner of
the copyright, and, therefore, protected by law, and infringement of copyright, or piracy, which is a
synonymous term in this connection, consists in the doing by any person, without the consent of the
owner of the copyright, of anything the sole right to do which is conferred by statute on the owner of
the copyright.
Being the copyright and trademark owner of Microsoft software, Microsoft acted well within its rights
in filing the complaint before DOJ on the incriminating evidence obtained from Beltron. Hence, it was
highly irregular for the DOJ to hold that Microsoft sought the issuance of the search warrants and the
filing of the complaint merely to pressure Beltron to pay its overdue royalties to Microsoft.
There is no basis for the DOJ to rule that Microsoft must await a prior resolution from the proper
court of whether or not the Agreement is still binding between the parties. Beltron has not filed any
suit to question Microsofts termination of the Agreement. Microsoft can neither be expected nor
compelled to wait until Beltron decides to sue before Microsoft can seek remedies for violation of its
intellectual property rights.
Furthermore, the articles seized from Beltron are counterfeit per se because Microsoft does not (and
could not have authorized anyone to) produce such CD installers The copying of the genuine
 5

Microsoft software to produce these fake CDs and their distribution are illegal even if the copier or
distributor is a Microsoft licensee. As far as these installer CD-ROMs are concerned, the Agreement
(and the alleged question on the validity of its termination) is immaterial to the determination of
Beltrons liability for copyright infringement and unfair competition. Beltrons defense that the box of
CD installers found in their possession was only left to them for safekeeping is not tenable.
Matalam v. Sandiganbayan, 455 SCRA 736

On November 15, 2004, Datu Guimid Matalam, the Vice-Governor of Cotabato City and the Regional
Secretary of DAR, and other low-ranking public officials were charged with violation of Section 3(e) of
the Anti-Graft and Corrupt Practices Act. Allegedly, Matalam illegally and unjustifiably refused to pay
the monetary claims of several employees of the DAR. Later, the Information was amended charging
him of illegally dismissing from the service the complaining employees. He then insisted that he is
entitled to a new preliminary investigation.

Issue: Whether or not Matalam is entitled to a preliminary investigation since he was not informed that
he is being charged for the alleged dismissal of the complaining witnesses.

Held: Yes. According to the SC, if the petitioner is not to be given a new PI for the amended charge,
his right will definitely be prejudiced because he will be denied his right to present evidence to show
or rebut evidence regarding the element of evident bad faith and manifest partiality on the alleged
dismissal. He will be denied due process. Although the charge remained the same, which is violation
of Sec. 3 (e) of RA 3019 as amended, the prohibited act allegedly committed changed, that is, failure
to pay monetary claims to illegal dismissal, and he was not given the opportunity to submit his
evidence on the absence or presence of evident bad faith and manifest partiality as to the illegal
dismissal. Accused has not waived his right to a new PI and in fact asked for one.
Cojuangco v. PCGG, 190 SCRA 226

Facts: President Corazon C. Aquino directed the OSG to prosecute all persons involved in the
misuse of coconut levy funds. Pursuant to the above directive the OSG created a task force to
conduct a thorough study of the possible involvement of all persons in the anomalous use of coconut
levy funds. Upon the creation of the PCGG under EO. 1 issued by President Aquino, the PCGG was
charged with the task of assisting the President not only in the recovery of ill gotten wealth or
unexplained wealth accumulated by the former President, his immediate family, relatives,
subordinates and close associates but also in the investigation of such cases of graft and corruption
as the President may assign to the Commission from time to time and to prevent a repetition of the
same in the future.

Petitioner alleges that the PCGG may not conduct a preliminary investigation of the complaints filed
by the Solicitor General without violating petitioner's rights to due process and equal protection of the
law, and that the PCGG has no right to conduct such preliminary investigation.

Issue: WON the Presidential Commission on Good Government (PCGG) has the power to conduct a
preliminary investigation of the anti-graft and corruption cases filed by the Solicitor General against
Eduardo Cojuangco, Jr. and other respondents for the alleged misuse of coconut levy funds.

Held: the court ruled in the negative. Considering that the PCGG, like the courts, is vested with the
authority to grant provisional remedies of (1) sequestration, (2) freezing assets, and (3) provisional
takeover, it is indispensable that, as in the case of attachment and receivership, there exists a prima
facie factual foundation, at least, for the sequestration order, freeze order or takeover order, an
adequate and fair opportunity to contest it and endeavor to cause its negation or nullification. Both are
assured under the foregoing executive orders and the rules and regulations promulgated by the
PCGG.

The general power of investigation vested in the PCGG may be divided into two stages. The first
stage of investigation which is called the criminal investigation stage is the fact finding inquiring which
is usually conducted by the law enforcement agents whereby they gather evidence and interview
 6

witnesses after which they assess the evidence and if they find sufficient basis, file the complaint for
the purpose of preliminary investigation. The second stage is the preliminary investigation stage of
the said complaint. It is at this stage, as above discussed, where it is ascertained if there is sufficient
evidence to bring a person to trial.

It is in such instances that we say one cannot be "a prosecutor and judge at the same time." Having
gathered the evidence and filed the complaint as a law enforcer, he cannot be expected to handle
with impartiality the preliminary investigation of his own complaint, this time as a public prosecutor.

The Court holds that a just and fair administration of justice can be promoted if the PCGG would be
prohibited from conducting the preliminary investigation of the complaints subject of this petition and
the petition for intervention and that the records of the same should be forwarded to the Ombudsman,
who as an independent constitutional officer has primary jurisdiction over cases of this nature, to
conduct such preliminary investigation and take appropriate action.

Jurisdiction:

Issue: (2) on the assumption that it has jurisdiction to conduct such a preliminary investigation,
whether or not its conduct constitutes a violation of petitioner's rights to due process and equal
protection of the law.

Held:

The Court cannot close its eyes to the glaring fact that in earlier instances, the PCGG had already
found a prima facie case against the petitioner and intervenors when, acting like a judge, it caused
the sequestration of the properties and the issuance of the freeze order of the properties of petitioner.
Thereafter, acting as a law enforcer, in collaboration with the Solicitor General, the PCGG gathered
the evidence and upon finding cogent basis therefor filed the aforestated civil complaint.
Consequently the Solicitor General filed a series of criminal complaints.

It is difficult to imagine how in the conduct of such preliminary investigation the PCGG could even
make a turn about and take a position contradictory to its earlier findings of a prima facie case against
petitioner and intervenors. This was demonstrated in the undue haste with which I.S. Nos. 74 and 75
was investigated and the informations were filed in court even as the petitioner and intervenors
questioned its authority, invoked the denial of due process and promptly informed the PCGG of the
filing of this petition.

In our criminal justice system, the law enforcer who conducted the criminal investigation, gathered the
evidence and thereafter filed the complaint for the purpose of preliminary investigation cannot be
allowed to conduct the preliminary investigation of his own complaint. It is to say the least arbitrary
and unjust.

It is in such instances that We say one cannot be "a prosecutor and judge at the same time." Having
gathered the evidence and filed the complaint as a law enforcer, he cannot be expected to handle
with impartiality the preliminary investigation of his own complaint, this time as a public prosecutor.

Notes: The same rule of thumb should apply to an investigating officer conducting a preliminary
investigation.

preliminary investigation is defined as "an inquiry or proceeding for the purpose of determining
whether there is sufficient ground to engender a well-founded belief that a crime cognizable by the
Regional Trial Court has been committed and that the respondent is probably guilty thereof, and
should be held for trial."
 7

Purpose of a preliminary investigation is to secure the innocent against hasty, malicious and
oppressive prosecution, and to protect him from an open and public accusation of a crime, from the
trouble, expense, anxiety of a public trial, and also to protect the state from useless and expensive
trials

Pilapil v. Sandiganbayan, 221 SCRA 349

On October 16, 1987, the Philippine Charity Sweepstakes Office (PCSO) donated one ambulance (a
Mitsubishi L-300) to the Municipality of Tigaon, Camarines Sur. Petitioner, who is the Congressman
of the 3rd District of Camarines Sur, received the ambulance in behalf of the municipality. However,
he did not deliver the ambulance to said municipality.

Unaware of the donation, the Sangguniang Bayan of the municipality passed a resolution (Resolution
No. 16, Series of 1988) requesting PCSO for an ambulance. Said request was reiterated in their
Resolution No. 117, Series of 1988. The mayor of the municipality, Eleanor P. Lelis, thereafter sought
the intercession of Sandiganbayan Presiding Justice Francis Garchitorena, who is from the said
municipality, regarding said request. Thereafter, Justice Garchitorena contacted the PCSO and
learned about the ambulance previously donated by the latter to Tigaon through petitioner. He
accordingly informed Mayor Lelis that the municipality's request cannot be favorably acted upon in
view of the previous donation.

Mayor Lelis reiterated the municipality's request for an ambulance making reference to the
certification of the municipal treasurer that no vehicle from the PCSO or from anyone has been
received.

Upon verification of the whereabouts of the Mitsubishi L-300 by the PCSO from the petitioner, the
latter indicated his willingness to return the ambulance. In a letter dated December 22, 1988, he
requested that said vehicle be donated instead to the Municipality of Tinambac, same province.
Finally, on December 26. 1988, he personally returned the ambulance, then already painted to cover
the logo of the PCSO and the other markings thereon.

With the return of the Mitsubishi L-300 to the PCSO, the Municipality of Tigaon, through Mayor Lelis,
finally received a brand new Besta Kia Ambulance unit complete with all accessories.

On January 2, 1989, Justice Garchitorena wrote the then Chief Justice Marcelo B. Fernan relating to
him the whole story of the ambulance.

On January 25, 1989, Justice Garchitorena also sent Deputy Ombudsman Jose C. Colayco a letter-
complaint against petitioner regarding said ambulance. Said letter-complaint was referred by
Ombudsman Conrado M. Vasquez to the Deputy Ombudsman for Luzon, Manuel C. Domingo, for
appropriate action. Thereupon, Deputy Ombudsman Domingo required Justice Garchitorena to
submit all relevant records and documents, as well as his affidavit and those of his witnesses. Failing
in this regard, Justice Garchitorena was requested anew to comply. In his stead, Anthony D. Jamora,
the Regional manager of the Special Projects Department of the PCSO and Mayor Lelis of Tigaon,
Camarines Sur, submitted their respective affidavits.

On October 3, 1990, Deputy Ombudsman Domingo issued an order requiring petitioner to submit his
counter-affidavit, affidavits of his witnesses and other controverting evidence. This order was
captioned as Case No. OMB-1-89-0168 for "Malversation of Public Property under Article 217 of the
Revised Penal Code."

On October 22, 1990, petitioner submitted his counter-affidavit denying the imputation of said offense
claiming that the vehicle was not equipped with any medical attachments or facilities so he was
constrained to request PAGCOR for assistance to finance its conversion into a medical ambulance
which is evidenced by his letter dated November 15, 1987 to Mrs. Alice Reyes. He claimed that it was
only on April 28, 1988 that PAGCOR acted on his request, but in lieu of financial assistance, said
office donated accessories, which can be installed at an estimated cost of P5,000.00. Thus, he
allegedly made personal representations with PAGCOR for the latter to shoulder the expenses of the
installation. While awaiting for the financial assistance, petitioner claimed, in explanation why the logo
 8

of PCSO and the other markings on the vehicle were removed, that he acceded to the suggestion of
his staff to include the name of PAGCOR on the sides of the ambulance in view of the substantial
contribution of the latter.

On December 5, 1990, Ombudsman Investigator Isaac D. Tolentino issued a resolution finding no

probable cause for malversation and recommended that the case be dismissed, which
recommendation was approved by Deputy Ombudsman Domingo.

On January 5, 1991, Assistant Ombudsman Abelardo Aportadera, Jr. recommended the disapproval
of the aforesaid resolution and instead, suggested the filing of criminal information for violation of
Article 217 of the Revised Penal Code. This was followed by another resolution to the same effect by
Special Prosecution Officer Wilfredo Orencia dated February 14, 1991.

On April 1, 1991, Ombudsman Conrado Vasquez issued a resolution sustaining the finding of
Ombudsman Investigator Tolentino that there is no malversation but found in the same resolution, a
prima facie case for violation of Section 3(e) of Republic Act No. 3019, the dispositive part of which
states:

"WHEREFORE, it is hereby directed that the information to be filed against the respondent should be
for a violation of Section 3(e) of R.A. 3019." 1

On April 3, 1991, an information for violation of Section 3(e) of Republic Act No. 3019, docketed as
Criminal Case No. 16672, against petitioner was filed, to wit:

"The undersigned Special Prosecution Officer III accuses EDUARDO P. PILAPIL of the crime for
'Violation of Section 3(e) of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft
and Corrupt Practices Act, committed as follows:

'That on or about October 16, 1987 and subsequent thereto, in the Municipality of Tigaon, Province of
Camarines Sur and within the jurisdiction of this Honorable Court, the accused is a public officer, he
being the Congressman of the Third Congressional District of Camarines Sur, while in the discharge
of his official functions and taking advantage of his public position, acted with manifest partiality and
evident bad faith, did then and there willfully cause undue injury to the Municipality of Tigaon,
Camarines Sur, when he failed to deliver the ambulance, Mitsubishi Van L-300, received by him on
behalf of the said municipality in a Deed of Donation executed by the Philippine Charity Sweepstakes
Office in its favor, to the prejudice and damage of the said municipal government.

CONTRARY TO LAW." 2

On April 12, 1991, a warrant of arrest was issued against petitioner. On April 18, 1991, he was
allowed to deposit the sum of P15,000.00 in court to be considered as bail bond and the warrant of
arrest was recalled.

On May 2, 1991, petitioner filed a motion to quash on the ground that respondent Sandiganbayan has
no jurisdiction over his person because the information was filed without probable cause since there
is absolutely no proof adduced in the preliminary investigation of any of the elements of the crime
defined in Section 3(e) of Republic Act No. 3019. On June 27, 1991, respondent court denied the said
motion to quash holding that the factual and legal issues and/or questions raised are evidentiary in
nature and are matters of defense, the validity of which can be best passed upon after a full-blown
trial on the merits. On September 5, 1991, respondent court denied petitioner's motion for
reconsideration of the said resolution and set the arraignment of petitioner on October 21, 1991 at
8:30 a.m.

On October 12, 1991, petitioner filed the present petition and by reason of such filing, respondent
court ordered that the arraignment be held in abeyance.

Petitioner enumerates the following as his reasons for filing the petition:
 9

"I. THAT RESPONDENT COURT IS ACTING WITHOUT OR IN EXCESS OF JURISDICTION OR

WITH GRAVE ABUSE OF DISCRETION IN DENYING THE MOTION TO QUASH.

II. THAT RESPONDENT COURT IS NEGLECTING A LEGAL DUTY IN NOT QUASHING THE
INFORMATION OR DISMISSING THE CASE.

III. THAT PETITIONER HAS NO PLAIN, SPEEDY AND ADEQUATE REMEDY IN THE ORDINARY
COURSE OF LAW EXCEPT THE PRESENT PETITION." 3

Stated otherwise, the issue in this case is whether or not the Sandiganbayan committed grave abuse
of discretion in denying petitioner's motion to quash and motion for reconsideration.

Petitioner harps on the lack of preliminary investigation on the specific charge of violation of Sec.
3(e), Republic Act No. 3019, as amended, filed before the Sandiganbayan. He alleges that the
preliminary investigation was conducted for the charge of malversation.

At the outset, this Court bears mention of the rudimentary rule that the absence of a preliminary
investigation is not a ground to quash a complaint or information under Section 3, Rule 117 of the
Rules of Court. The proper procedure in case of lack of preliminary investigation is to hold in
abeyance the proceedings upon such information and the case remanded to the Office of the
Provincial Fiscal or the Ombudsman, for that matter, for him or the Special Prosecutor to conduct a
preliminary investigation. 4 Thus, We enunciated in Sanciangco, Jr. vs. People, 5 and reiterated in
Doromal vs. Sandiganbayan, 6 that:

"The absence of preliminary investigation does not affect the court's jurisdiction over the case. Nor do
they impair the validity of the information or otherwise render it defective, but, if there were no
preliminary investigations and the defendants, before entering their plea, invite the attention of the
court to their absence, the court, instead of dismissing the Information, should conduct such
investigation, order the fiscal to conduct it or remand the case to the inferior court so that the
preliminary investigation may be conducted . . ."

Petitioner takes exception to the doctrine and urges this Court to take a second look arguing that lack
of preliminary investigation affects the court's jurisdiction because it is violative of due process. He
reasons out that jurisprudence abounds with the rule that denial of due process is grave jurisdictional
defeat rendering the judgment void.

We are not persuaded. The lack of jurisdiction contemplated in Section 3(b), Rule 117 of the Revised
Rules of Court refers to the lack of any law conferring upon the court the power to inquire into the
facts, to apply the law and to declare the punishment for an offense in a regular course of judicial
proceeding. When the court has jurisdiction, as in this case, any irregularity in the exercise of that
power is not a ground for a motion to quash. Reason is not wanting for this view. Lack of jurisdiction
is not waivable but absence of preliminary investigation is waivable. In fact, it is frequently waived.

We now come to the question of whether there was no preliminary investigation conducted in this
case necessitating the suspension of the proceedings in the case until after the outcome of such
preliminary investigation.

The facts on record show that in an order dated October 3, 1990, Deputy Ombudsman Domingo
required petitioner to answer the charges against him as stated in the affidavits-complaints and
supporting documents thereto. Petitioner fully complied with said order and filed his and his
witnesses' affidavits. In other words, petitioner was properly apprised of the act complained of and
given ample opportunity to rebut the same. Thus, petitioner could not validly raise violation of his right
to due process because the bases for the information filed by the Ombudsman were all reflected in
the complaint and the evidence supporting it. In Cinco vs. Sandiganbayan, 7 this Court held that
preliminary investigation is nothing more than the submission of the parties' respective affidavits,
counter-affidavits and evidence to buttress their separate allegations.
 10

Petitioner attaches significance to the fact that the preliminary investigation conducted by the
Ombudsman against him was under the title of "malversation." According to him, this is not sufficient
to justify the filing of the charge of violation of Anti-Graft and Corrupt Practices Law.

Petitioner loses sight of the fact that preliminary investigation is merely inquisitorial, and it is often the
only means of discovering whether a person may be reasonably charged with a crime, to enable the
prosecutor to prepare his complaint or information. The preliminary designation of the offense in the
directive to file a counter-affidavit and affidavits of one's witnesses is not conclusive. Such
designation is only a conclusion of law of Deputy Ombudsman Domingo. The Ombudsman is not
bound by the said qualification of the crime. Rather, he is guided by the evidence presented in the
course of a preliminary investigation and on the basis of which, he may formulate and designate the
offense and direct the filing of the corresponding information. In fact, even, the designation of the
offense by the prosecutor in the information itself has been held inconclusive, to wit:

". . . the real nature of the criminal charge is determined not from the caption or preamble of the
information nor from the specification of the provision of law alleged to have been violated, they being
conclusions of law, but by the actual recital of facts in the complaint or information . . . it is not the
technical name given by the Fiscal appearing in the title of the information that determines the
character of the crime but the facts alleged in the body of the Information." 8

Petitioner cites the case of Luciano vs. Mariano, 9 in support of its view that a new preliminary
investigation is needed. In said case, however, the original charge for falsification was dismissed for
being without any factual or legal basis and the category of the offense was raised as the alleged
violation of the Anti-Graft Law was a graver charge. In the case at bar, there is no dismissal to speak
of because under the rules of procedure of the office of the Ombudsman, a complaint may be
dismissed only upon the written authority or approval of the Ombudsman. Besides, even the
petitioner admits that the violation of the Anti-Graft law did not raise the category of the offense of
malversation.

The case of Doromal vs. Sandiganbayan, 10 also cited by petitioner as another authority, is likewise
inapplicable as in said case, the information was annulled as the then incumbent Tanodbayan was
without authority to conduct preliminary investigations and to direct the filing of criminal cases with the
Sandiganbayan, except upon orders of the Ombudsman. With the annulment of the information, this
Court held that a new preliminary investigation of the charge was in order not only because the first
was a nullity but also because the accused demands it as his right. In the case at bar, there is no old
or new information. Only one information was filed as a result of the preliminary investigation
conducted by the office of the Ombudsman.

Even on the assumption that no preliminary investigation was conducted for the information filed,
petitioner waived his right thereto for failure to ask the Sandiganbayan or the Ombudsman for a new
preliminary investigation. On this score again, petitioner's case is different from the Luciano and
Doromal cases where the attention of the lower court was called to the lack of a new preliminary
investigation. Petitioner bewailed the absence of a new preliminary investigation only before this
Court. It is noteworthy that his only basis for quashing the information is the alleged lack of jurisdiction
of the court over his person because there is no probable cause for the filing of the information.

It is well-settled that the right to a preliminary investigation is not a fundamental right and may be
waived expressly or by silence. 11 Failure of accused to invoke his right to a preliminary investigation
constituted a waiver of such right and any irregularity that attended it. 12 The right may be forfeited by
inaction and can no longer be invoked for the first time at the appellate level. 13

Petitioner's argument that he could not have asked for a new preliminary investigation in the Office of
the Ombudsman since he came to know about the charge only after the information was filed in the
Sandiganbayan, is not tenable. Under the last paragraph of Section 7, Rule 112 of 1985 Rules on
Criminal Procedure, the right to ask for preliminary investigation is recognized even after the case has
already been filed, to wit:

"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
 11

preliminary investigation with the same right to adduce evidence to his favor in the manner prescribed
in this Rule."

Clearly, the alleged lack of a valid preliminary investigation came only as an afterthought to gain a
reversal of the denial of the motion to quash. Sad to say, this last ditch effort came a bit late. His
failure to invoke this right below constituted a waiver of such right.

As aforesaid, what was submitted for consideration below was the motion to quash of petitioner on
the ground of want of jurisdiction by the trial court over his person because of the filing of an
information without probable cause. There being no probable cause, according to petitioner, then
there could be no basis to issue a warrant of arrest and hence, the respondent court had no
jurisdiction over his person.

Contesting the findings of respondent court that probable cause exists in this case, petitioner insists
that there is no competent proof that all the elements of Section 3(e) of the Anti-Graft law are present,
namely: that an act was done (1) causing undue injury to the government, (2) with manifest partiality
or evident bad faith, and (3) by a public officer in the discharge of his official duties.

Petitioner argues that the injury contemplated under the law is real or actual damage and since there
is absolutely no proof of real or actual damages suffered by the municipality, the finding of undue
injury by the Ombudsman has no factual basis. Concomitantly, he says that since there is no undue
injury, then, there can be no bad faith, as bad faith is inseparable from undue injury for undue injury
must be through bad faith. He claims that failure to inform the mayor of the donation, that he returned
the vehicle after one year; that he kept the vehicle in storage; and that he caused the repainting to
erase the words PCSO are not evidence of bad faith since they cannot manifest a deliberate intent to
do wrong or cause damage.

Finally, petitioner claims that the element of "public office in the discharge of official duties" is also
absent as his acceptance of the vehicle in question from PCSO and its non-delivery to the
municipality of Tigaon was not done in the discharge of his duty as a congressman tasked with
enacting laws. If at all, he admits, the act was done in his private capacity as political leader in his
district.

We agree with respondent court that the presence or absence of the elements of the crime are
evidentiary in nature and are matters of defense, the truth of which can best be passed upon after a
full-blown trial on the merits.

Probable cause has been defined in the leading case of Buchanan vs. Vda. de Esteban 14 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.

Probable cause is a reasonable ground of presumption that a matter is, or may be, well founded,
such a state of facts in the mind of the prosecutor as would lead a person of ordinary caution and
prudence to believe, or entertain an honest or strong suspicion, that a thing is so" 15 The term does
not mean "actual and positive cause" nor does it import absolute certainty. It is merely based on
opinion and reasonable belief. Thus, a finding of probable cause does not require an inquiry into
whether there is sufficient evidence to procure a conviction. It is enough that it is believed that the act
or omission complained of constitutes the offense charged. Precisely, there is a trial for the reception
of evidence of the prosecution in support of the charge.

Whether an act was done causing undue injury to the government and whether the same was done
with manifest partiality or evident bad faith can only be made out by proper and sufficient testimony.
Necessarily, a conclusion can be arrived at when the case has already proceeded on sufficient proof.

At the moment, in passing on a motion to set aside an information on the ground that the accused
has been charged without probable cause, the court should not be guided by the rule that accused
must be shown to be guilty beyond a reasonable doubt, but rather whether there is sufficient evidence
which inclines the mind to believe, without necessarily leaving room for doubt, that accused is guilty
thereof.
 12

Having thus found that respondent court has not acted in excess of jurisdiction nor with grave abuse
of discretion in finding the existence of probable cause in the case at bar and consequently, in
denying the motion to quash and motion for reconsideration of petitioner, We dismiss as clearly
unfounded the insinuations of petitioner that Presiding Justice Francis Garchitorena used the
influence of his office in initiating the complaint against him. We agree with respondent court that the
act of bringing to the attention of appropriate officials possible transgression of the law is as much an
obligation of the highest official of the land as it is the responsibility of any private citizen.

People v. Inting, 187 SCRA 788

On February 6, 1988, Mrs. Editha Barba filed a letter-complaint against OIC-Mayor Dominador
Regalado of Tanjay, Negros Oriental with the Commission on Elections (COMELEC), for allegedly
transferring her, a permanent Nursing Attendant, Grade I, in the office of the Municipal Mayor to a
very remote barangay and without obtaining prior permission or clearance from COMELEC as
required by law.

Acting on the complaint, COMELEC directed Atty. Gerardo Lituanas, Provincial Election Supervisor of
Dumaguete City: (1) to conduct the preliminary investigation of the case; (2) to prepare and file the
necessary information in court; (3) to handle the prosecution if the evidence submitted shows a prima
facie case and (3) to issue a resolution of prosecution or dismissal as the case may be. The directive
to conduct the preliminary investigation was pursuant to COMELEC Resolution No. 1752 dated
January 14, 1986. The resolution, in turn, is based on the constitutional mandate that the COMELEC
is charged with the enforcement and administration of all laws relative to the conduct of elections for
the purpose of ensuring free, orderly and honest elections (sec. 2, Article XII-C of the 1973
Constitution) and on the Omnibus Election Code which implements the constitutional provision. The
Resolution provides, among others:

xxx xxx xxx

Further, Regional Election Directors and Provincial Election Supervisors are hereby
authorized to conduct preliminary investigations of election offenses committed in their
respective jurisdictions, file the corresponding complaints and/or informations in court
whenever warranted, and to prosecute the same pursuant to Section 265 of the
Omnibus Election Code. (Rollo, p. 15)

After a preliminary investigation of Barba's complaint, Atty. Lituanas found a prima facie case. Hence,
on September 26, 1988, he filed with the respondent trial court a criminal case for violation of section
261, Par. (h), Omnibus Election Code against the OIC-Mayor.

In an Order dated September 30, 1988, the respondent court issued a warrant of arrest against the
accused OIC Mayor. It also fixed the bail at five thousand pesos (P5,000.00) as recommended by the
Provincial Election Supervisor.

However, in an order dated October 3, 1988 and before the accused could be arrested, the trial court
set aside its September 30, 1988 order on the ground that Atty. Lituanas is not authorized to
determine probable cause pursuant to Section 2, Article III of the 1987 Constitution. The court stated
that it "will give due course to the information filed in this case if the same has the written approval of
the Provincial Fiscal after which the prosecution of the case shall be under the supervision and
control of the latter." (at p. 23, Rollo, emphasis supplied)

In another order dated November 22, 1988, the court gave Atty. Lituanas fifteen (15) days from
receipt to file another information charging the same offense with the written approval of the
Provincial Fiscal.

Atty. Lituanas failed to comply with the order. Hence, in an order dated December 8, 1988, the trial
court quashed the information. A motion for reconsideration was denied.

Hence, this petition.

 13

The respondent trial court justifies its stand on the ground that the COMELEC through its Provincial
Election Supervisor lacks jurisdiction to determine the existence of probable cause in an election
offense which it seeks to prosecute in court because:

While under Section 265 of the Omnibus Election Code approved on December 3, 1985
duly authorized legal officers of the Commission on Elections have the exclusive power
to conduct preliminary investigation of all election offenses and to prosecute the same, it
is doubtful whether said authority under the auspices of the 1973 Constitution, still
subsists under the 1987 Constitution which has deleted in its Section 2, Article III, the
phrase "and such other responsible officer as may be authorized by law" in the
equivalent section and article of the 1973 Constitution. (Rollo, p. 24)

The petition is impressed with merit.

We emphasize important features of the constitutional mandate that " ... no search warrant or warrant
of arrest shall issue except upon probable cause to be determined personally by the judge ... " (Article
III, Section 2, Constitution)

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 his
determination.

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.

The Court made this clear in the case of Castillo v. Villaluz (171 SCRA 39 [1989]):

Judges of Regional Trial Courts (formerly Courts of First Instance) no longer have
authority to conduct preliminary investigations. That authority, at one time reposed in
them under Sections 13, 14 and 16 Rule 112 of the Rules of Court of 1964, (See Sec. 4,
Rule 108, Rules of Court of 1940; People v. Solon, 47 Phil. 443, cited in Moran,
Comments on the Rules, 1980 ed., Vol. 4, pp. 115-116) was removed from them by the
1985 Rules on Criminal Procedure, effective on January 1, 1985, (Promulgated on
November 11, 1984) which deleted all provisions granting that power to said Judges.
We had occasion to point this out in Salta v. Court of Appeals, 143 SCRA 228, and to
stress as well certain other basic propositions, namely: (1) that the conduct of a
preliminary investigation is "not a judicial function ... (but) part of the prosecution's job, a
function of the executive," (2) that wherever "there are enough fiscals or prosecutors to
conduct preliminary investigations, courts are counseled to leave this job which is
essentially executive to them," and the fact "that a certain power is granted does not
necessarily mean that it should be indiscriminately exercised."

The 1988 Amendments to the 1985 Rules on Criminal Procedure, declared effective on
October 1, 1988, (The 1988 Amendments were published in the issue of Bulletin Today
of October 29, 1988) did not restore that authority to Judges of Regional Trial Courts;
said amendments did not in fact deal at all with the officers or courts having authority to
conduct preliminary investigations.
 14

This is not to say, however, that somewhere along the line RTC Judges also lost the
power to make a preliminary examination for the purpose of determining whether
probable cause exists to justify the issuance of a warrant of arrest (or search warrant).
Such a power indeed, it is as much a duty as it is a power has been and remains
vested in every judge by the provision in the Bill of Rights in the 1935, the 1973 and the
present (1987) Constitutions securing the people against unreasonable searches and
seizures, thereby placing it beyond the competence of mere Court rule or statute to
revoke. The distinction must, therefore, be made clear while an RTC Judge may no
longer conduct preliminary investigations to ascertain whether there is sufficient ground
for the filing of a criminal complaint or information, he retains the authority, when such a
pleading is filed with his court, to determine whether there is probable cause justifying
the issuance of a warrant of arrest. It might be added that this distinction accords, rather
than conflicts, with the rationale of Salta because both law and rule, in restricting to
judges the authority to order arrest, recognize that function to be judicial in nature.

We reiterate that preliminary investigation should be distinguished as to whether it is an investigation

for the determination of a sufficient ground for the filing of the information or it is an investigation for
the determination of a probable cause for the issuance of a warrant of arrest. The first kind of
preliminary investigation is executive in nature. It is part of the prosecution's job. The second kind of
preliminary investigation which is more properly called preliminary examination is judicial in nature
and is lodged with the judge. It is in this context that we address the issue raised in the instant petition
so as to give meaning to the constitutional power vested in the COMELEC regarding election
offenses.

Article IX C Section 2 of the Constitution provides:

Sec. 2. The Commission on Elections shall exercise the following powers and functions

(1) Enforce and administer all laws and regulations relative to the conduct of an
election, plebiscite, initiative, referendum, and recall.

xxx xxx xxx

(6) File, upon a verified complaint, or on its own initiative, petitions in court for inclusion
or exclusion of votes, investigate and, where appropriate, prosecute cases of violation
of election laws, including acts or omission constituting election frauds, offenses, and
practices. (Emphasis supplied)

In effect the 1987 Constitution mandates the COMELEC not only to investigate but also to prosecute
cases of violation of election laws. This means that the COMELEC is empowered to conduct
preliminary investigations in cases involving election offenses for the purpose of helping the Judge
determine probable cause and for filing an information in court. This power is exclusive with
COMELEC.

The grant to the COMELEC of the power, among others, to enforce and administer all
laws relative to the conduct of election and the concomittant authority to investigate and
prosecute election offenses is not without compelling reason. The evident constitutional
intendment in bestowing this power to the COMELEC is to insure the free, orderly and
honest conduct of elections, failure of which would result in the frustration of the true will
of the people and make a mere idle ceremony of the sacred right and duty of every
qualified citizen to vote. To divest the COMELEC of the authority to investigate and
prosecute offenses committed by public officials in relation to their office would thus
seriously impair its effectiveness in achieving this clear constitutional mandate.

From a careful scrutiny of the constitutional provisions relied upon by the

Sandiganbayan, We perceived neither explicit nor implicit grant to it and its prosecuting
arm, the Tanodbayan, of the authority to investigate, prosecute and hear election
offenses committed by public officers in relation to their office as contradistinguished
from the clear and categorical bestowal of said authority and jurisdiction upon the
 15

COMELEC and the courts of first instance under Sections 182 and 184, respectively, of
the Election Code of 1978.

An examination of the provisions of the Constitution and the Election Code of 1978
reveals the clear intention to place in the COMELEC exclusive jurisdiction to investigate
and prosecute election offenses committed by any person, whether private individual or
public officer or employee, and in the latter instance, irrespective of whether the offense
is committed in relation to his official duties or not. In other words, it is the nature of the
offense and not the personality of the offender that matters. As long as the offense is an
election offense jurisdiction over the same rests exclusively with the COMELEC, in view
of its all-embracing power over the conduct of elections. (Corpus v. Tanodbayan, 149
SCRA 281 [1987])

Hence, the Provincial Fiscal, as such, assumes no role in the prosecution of election offenses. If the
Fiscal or Prosecutor files an information charging an election offense or prosecutes a violation of
election law, it is because he has been deputized by the COMELEC. He does not do so under the
sole authority of his office. (People v. Basilla, et al., G.R. Nos. 83938-40, November 6, 1989).itc-
asl In the instant case, there is no averment or allegation that the respondent Judge is bringing in
the Provincial Fiscal as a deputy of COMELEC. He wants the Fiscal to "approve" the COMELEC's
preliminary investigation.

It is to be noted that on February 27, 1987 (when the 1987 Constitution was already in effect) the
President issued Executive Order No. 134 which was the ENABLING ACT FOR ELECTIONS FOR
MEMBERS OF CONGRESS ON MAY 11, 1987 AND FOR OTHER PURPOSES." Section 11 thereof
provides:

Prosecution. The Commission shall, through its duly authorized legal officers, have
exclusive power to conduct preliminary investigation of all election offenses punishable
as provided for in the preceding section, and to prosecute the same: Provided, That in
the event that the Commission fails to act on any complaint within two (2) months from
filing, the complainant may file the complaint with the Office of the Fiscal or with the
Department of Justice for proper investigation and prosecution, if warranted.

The Commission may avail of the assistance of other prosecuting arms of the
government.

It is only after a preliminary examination conducted by the COMELEC through its officials or its
deputies that section 2, Article III of the 1987 Constitution comes in. This is so, because, when the
application for a warrant of arrest is made and the information is filed with the court, the judge will
then determine whether or not a probable cause exists for the issuance of a warrant of arrest.

Bearing these principles in mind, it is apparant that the respondent trial court misconstrued the
constitutional provision when it quashed the information filed by the Provincial Election Supervisor. As
indicated above what the respondent trial court should have done was to enforce its September 30,
1988 order, to wit:

Pursuant to Circular No. 12 of the Chief Justice of the Supreme Court dated June 30,
1987 and considering that after a personal examination of the evidence submitted by
the investigating Provincial Election Supervisor III Negros Oriental (Designated Legal
Officer), there is reasonable ground for this Court to rely on the certification of said
Provincial Election Supervisor III in the information that a probable cause exists, let a
warrant issue for the arrest of the accused filing the bail at FIVE THOUSAND
(P5,000.00) PESOS as recommended by the Provincial Election Supervisor III.

The order to get the approval of the Provincial Fiscal is not only superfluous but unwarranted.

WHEREFORE, the instant petition is GRANTED. The questioned Orders dated October 3, 1988,
November 22, 1988 and December 8, 1988 are REVERSED and SET ASIDE. The respondent trial
court's Order dated September 30, 1988 is REINSTATED. The respondent court is ordered to
proceed hearing the case with deliberate speed until its termination.
 16

Community Rural Bank of Guimba (N.E.) v. Talavera,

The secretary of justice, who has the power of supervision and control over prosecuting officers, is
the ultimate authority who decides which of the conflicting theories of the complainants and the
respondents should be believed. The provincial or city prosecutor has neither the personality nor the
legal authority to review or overrule the decision of the secretary.

A preliminary investigation is essentially prefatory and inquisitorial. It is not a trial of the case on the
merits and has no purpose except to determine whether a crime has been committed, and whether
there is probable cause to believe that the accused is guilty of that crime.

In criminal proceedings, the word party is held to mean not only the government and the accused,
but also other persons who may be affected by the orders issued and/or judgment rendered
therein. Elementary due process mandates that the other party be notified of the adverse action of the
opposing party, so as to avoid a capricious change of mind and to ensure impartiality of the trial.

When a motion is pro forma, the court cannot act upon it.

Facts: Community Rural Bank (Bank) filed a complaint with the prosecutors office of
Cabanatuan charging several persons (the accused) with Estafa. After preliminary investigation, 6
informations for estafa were filed, 2 of which were raffled to the branch where respondent, Judge
Talavera, presided.

The accused appealed the finding of the Fiscal to the DOJ, which the latter denied, so Judge
Talavera issued a warrant of arrest with no bail against the accused.

Later, the accused filed with Judge Talavera a motion for reinvestigation and to lift the warrant
of arrest. Bank was not notified of this motion. Judge granted the motion without any hearing thereon.
When the reinvestigation was conducted, the Bank was still not notified.

The assistant provincial prosecutor who conducted the reinvestigation reversed the earlier findings of
the fiscal. On the same day, a motion to dismiss was filed with Judge, which he granted, and he also
ordered the release of the accused. The Bank was never notified of any of these proceedings. Bank
then filed an MR arguing it was deprived of due process. It also asked that the criminal information be
reinstated. Judge denied this. Hence, Bank filed the present case charging Judge Talavera with (1)
serious misconduct and/or gross inefficiency and (2) violation of Rules 1.01, 3.01 and 3.02 of the
Code of Judicial Conduct.

Issue:

Whether or not respondent judge is guilty of gross ignorance and violation of simple legal precepts.

Held:

Yes. Respondent judge's gross ignorance and violation of simple legal precepts is clearly shown by
his issuance of the Orders granting the Motion for Reinvestigation of the accused and the
prosecutorsMotiontoDismiss.

MotionforReinvestigation

First, judge should not have entertained the motion for reinvestigation, since DOJ Secretary Serafin
Cuevas already denied with finality the appeal of the accused, finding that there was prima facie
evidence against the accused. The secretary of justice, who has the power of supervision and control
over prosecuting officers, is the ultimate authority who decides which of the conflicting theories of the
complainants and the respondents should be believed. The provincial or city prosecutor has neither
the personality nor the legal authority to review or overrule the decision of the secretary.

Section 7 of Department Order No. 223 (the rules governing appeals from resolutions in preliminary
investigations or reinvestigations) provides:
 17

Sec. 7. Motion for Reinvestigation. At any time after the appeal has been perfected and before the
resolution thereof, the appellant may file a motion for reinvestigation on the ground that new and
material evidence has been discovered which appellant could not with reasonable diligence have
discovered during the preliminary investigation and which if produced and admitted would probably
change the resolution.
Here, the motion for reinvestigation was filed 3 months after the DOJ Secretary already denied their
appeal with finality. Clearly, therefore, Judge Talavera was wrong in granting the motion. In granting
the Motion for Reinvestigation, respondent effectively demolished the DOJs power of control and
supervision over prosecutors.

Newly discovered evidence

Also, there was no newly discovered evidence. The one-page Affidavit executed by Ms Gloria
Sacramento, one of the co-accused in the criminal case. was clearly not newly discovered; it was
already known to the accused even during the preliminary investigation. There was no explanation
whatsoever as to why this piece of evidence was never presented during the preliminary
investigation. Nonetheless, respondent hastily granted the Motion.

Preliminary investigation

It must be stressed that a preliminary investigation is essentially prefatory and inquisitorial. It is not a
trial of the case on the merits and has no purpose except to determine whether a crime has been
committed, and whether there is probable cause to believe that the accused is guilty of that crime. A
preliminary investigation is not the occasion for a full and exhaustive display of the parties evidence,
which needs to be presented only to engender a well-grounded belief that an offense has been
committed, and that the accused is probably guilty thereof.

Motion to Dismiss

Second, it was also error for the Judge to grant the Motion to Dismiss by relying merely on the
resolution of the prosecutor who conducted the reinvestigation. In his Order, he merely stated that
the motion to dismiss is meritorious, and nothing more. The Order failed to demonstrate an
independent evaluation or assessment of the evidence against the accused.

The Judge acted with undue haste when he granted the Motion only a day after the
reinvestigation was concluded. This leads to the conclusion that the judge did not personally evaluate
the parties evidence before acting on the Motion.The discretion to grant a Motion to Dismiss rests
solely with the court. However, mere approval of the position taken by the prosecution is not
equivalent to the discretion required. Once a complaint or an information is filed in court, the judge --
not the prosecutor -- assumes full control of the controversy. A grant of the motion to dismiss
is equivalent to a disposition of the case itself, which is a subject clearly within the courts exclusive
jurisdiction and competence.

When Judge issued the warrants of arrest without bail against all the accused, it is presumed that he
had studied the Information and the Resolution of the prosecutor and agreed with the latters findings
of probable cause. Thus, the grant of the Motion for Reinvestigation and of the Motion to Dismiss for
alleged insufficiency of evidence posed a serious contradiction of the earlier finding of
probable cause.

Proformamotions

Finally, Judge granted both of the Motions despite the obvious lack of notice to the Bank and lack of
hearing. This lapse effectively deprived it of its day in court.

The Rules of Court require that, with the exception of motions that the court may act upon without
prejudicing the rights of the adverse party, every written motion should be set for hearing by the
movant. Sections 4, 5 and 6 of Rule 15 of the Rules of Court explicitly require that notices be sent at
least three days before the hearing and directed at the parties concerned; and that they state the time
and place of hearing of the motion, with proper proof of notice thereof. Without such proof, the
 18

motion is considered pro forma; thus, the court cannot act upon it.

The purpose of the notice is to enable the adverse party to appear for its own protection and to
contest the motion. Elementary due process mandates that the other party be notified of the adverse
action of the opposing party, so as to avoid a capricious change of mind and to ensure impartiality of
the trial. Here, the Motions for Reinvestigation and to Dismiss were fatally defective, as neither
contained any proper notice of hearing. Respondent thus grossly erred in taking cognizance of these
Motions.

In criminal proceedings, the word party is held to mean not only the government and the accused,
but also other persons who may be affected by the orders issued and/or judgment rendered therein.

Due process

Undoubtedly, complainant had an interest in the maintenance of the criminal prosecution. Its right to
intervene therein was practically beyond question, as it neither instituted a separate civil action nor
reserved or waived the right to do so. Thus, as the party injured by the crime, it had the right to be
heard on a motion that was derogatory to its interest in the civil aspect of the case. Due process
necessitates that it be afforded this opportunity, especially because of a conflict between the positions
of the public prosecutor and of the offended party.

All told, respondent showed his lack of understanding, not only of the basic and established superior-
subordinate relationship between the secretary of justice and the provincial prosecutors, but also of
the functions and duties of the trial court in the proper scheme of things in our criminal justice
system.

Judges are expected to have more than just a modicum acquaintance with the statutes and
procedural rules. The Code of Judicial Ethics requires them to be embodiments of, among other
desirable characteristics, judicial competence. They are not common individuals whose gross errors
men forgive and time forgets. Judge was FINED P20,000.00.

Roberts Jr. v. CA, 254 SCRA 307

Petitioners, who are corporate officers and members of the Board of Pepsi Cola Products
Phils., Inc. were prosecuted in connection with the Pepsi Number Fever promotion by handlers of
the supposedly winning 349 Pepsi crowns. Of the four cases filed against the petitioners, probable
cause was found by the investigating prosecutor only for the crime of estafa, but not for the other
alleged offenses.

On 12 April 1993, the information was filed with the trial court without anything accompanying
it. A copy of the investigating prosecutors Joint Resolution was forwarded to and received by the trial
court only on 22 April 1993. However, no affidavits of the witnesses, transcripts of stenographic notes
of the proceedings during the preliminary investigation, or other documents submitted in the course
thereof were found in the records of the case as of 19 May 1993.

On 15 April 1993, petitioners Roberts, et al. filed a petition for review to the Department of
Justice seeking the reversal of the finding of probable cause by the investigating prosecutor. They
also moved for the suspension of the proceedings and the holding in abeyance of the issuance of
warrants of arrest against them. Meanwhile, the public prosecutor also moved to defer the
arraignment of the accused-appellants pending the final disposition of the appeal to the Department
of Justice.

On 17 May 1993, respondent Judge Asuncion issued the challenged order (1) denying, on the
basis of Crespovs. Mogul, the foregoing motions respectively filed by the petitioners and the public
prosecutor, and directing the issuance of the warrants of arrest after June 1993 and setting the
arraignment on 28 June 1993. In part, respondent judge stated in his order that since the case is
already pending in this Court for trial, following whatever opinion the Secretary of Justice may have
on the matter would undermine the independence and integrity his court. To justify his order, he
quoted the ruling of the Supreme Court in Crespo, which stated:
 19

In order therefor to avoid such a situation whereby the opinion of the Secretary of Justice who
reviewed the action of the fiscal may be disregarded by the trial court, the Secretary of Justice should,
as far as practicable, refrain from entertaining a petition for review or appeal from the action of the
fiscal, when the complaint or information has already been filed in Court. The matter should be left
entirely for the determination of the Court.

Petitioners went to the Court of Appeals (CA), arguing that the respondent judge had not the
slightest basis at all for determining probable cause when he ordered the issuance of warrants of
arrest. After finding that a copy of the public prosecutors Joint Resolution had in fact been forwarded
to, and received by, the trial court on 22 April 1993, the CA denied petitioners application for writ of
preliminary injunction. The CA ruled that the Joint Resolution was sufficient in itself to have been
relied upon by respondent Judge in convincing himself that probable cause indeed exists for the
purpose of issuing the corresponding warrants of arrest and that the mere silence of the records or
the absence of any express declaration in the questioned order as to the basis of such finding does
not give rise to an adverse inference, for the respondent Judge enjoys in his favor the presumption of
regularity in the performance of his official duty. Roberts, et al. sought reconsideration, but
meanwhile, the DOJ affirmed the finding of probable cause by the investigating prosecutor. The CA
therefore dismissed the petition for mootness.

II. THE ISSUES

1. Did Judge Asuncion commit grave abuse of discretion in denying, on the basis of Crespo
vs. Mogul, the motions to suspend proceedings and hold in abeyance the issuance of warrants of
arrest and to defer arraignment until after the petition for review filed with the DOJ shall have been
resolved?

2. Did Judge Asuncion commit grave abuse of discretion in ordering the issuance of warrants
of arrest without examining the records of the preliminary investigation?

3. May the Supreme Court determine in this [sic] proceedings the existence of probable
cause either for the issuance of warrants of arrest against the petitioners or for their prosecution for
the crime of estafa?

III. THE RULING

[The Court, in a 7-5-2 vote, GRANTED the petition. It SET ASIDE the decision and resolution
of the CA, the resolutions of the DOJ 349 Committee, and the order of respondent judge.]

1. YES, Judge Asuncion committed grave abuse of discretion in denying, on the basis
of Crespo vs. Mogul, the motions to suspend proceedings and hold in abeyance the issuance of
warrants of arrest and to defer arraignment until after the petition for review filed with the DOJ shall
have been resolved.

There is nothing in Crespo vs. Mogul which bars the DOJ from taking cognizance of an appeal,
by way of a petition for review, by an accused in a criminal case from an unfavorable ruling of the
investigating prosecutor. It merely advised the DOJ to, as far as practicable, refrain from entertaining
a petition for review or appeal from the action of the fiscal, when the complaint or information has
already been filed in Court.

Whether the DOJ would affirm or reverse the challenged Joint Resolution is still a matter of
guesswork. Accordingly, it was premature for respondent Judge Asuncion to deny the motions to
suspend proceedings and to defer arraignment on the following grounds:

This case is already pending in this Court for trial. To follow whatever opinion the Secretary of
Justice may have on the matter would undermine the independence and integrity of this Court. This
Court is still capable of administering justice.

The real and ultimate test of the independence and integrity of this court is not the filing of the
aforementioned motions [to suspend proceedings and issuance of warrants of arrest and to defer arraignment]
at that stage but the filing of a motion to dismiss or to withdraw the information on the basis of a resolution of
 20

the petition for review reversing the Joint Resolution of the investigating prosecutor. However, once a motion
to dismiss or withdraw the information is filed the trial judge may grant or deny it, not out of
subservience to the Secretary of Justice, but in faithful exercise of judicial prerogative.

2. YES, Judge Asuncion committed grave abuse of discretion in ordering the issuance of
warrants of arrest without examining the records of the preliminary investigation.

The teachings then of Soliven, Inting, Lim, Allado, and Webb reject the proposition that the investigating
prosecutors certification in an information or his resolution which is made the basis for the filing of the
information, or both, would suffice in the judicial determination of probable cause for the issuance of a warrant
of arrest. In Webb, this Court assumed that since the respondent Judges had before them not only the 26-page
resolution of the investigating panel but also the affidavits of the prosecution witnesses and even the counter-
affidavits of the respondents, they (judges) made personal evaluation of the evidence attached to the records
of the case.

In this case, nothing accompanied the information upon its filing on 12 April 1993 with the trial court. A copy of
the Joint Resolution was forwarded to, and received by, the trial court only on 22 April 1993. And as revealed
by the certification of respondent judges clerk of court, no affidavits of the witnesses, transcripts of
stenographic notes of the proceedings during the preliminary investigation, or other documents submitted in
the course thereof were found in the records of this case as of 19 May 1993. Clearly, when respondent Judge
Asuncion issued the assailed order of 17 May 1993 directing, among other things, the issuance of warrants of
arrest, 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. And strangely enough, he
made no specific finding of probable cause; he merely directed the issuance of warrants of arrest after June
21, 1993. It may, however, be argued that the directive presupposes a finding of probable cause. But
then compliance with a constitutional requirement for the protection of individual liberty cannot be left to
presupposition, conjecture, or even convincing logic.

3. NO, the Supreme Court MAY NOT determine in this [sic] proceedings the existence of probable cause
either for the issuance of warrants of arrest against the petitioners or for their prosecution for the crime of
estafa.

Ordinarily, the determination of probable cause is not lodged with this Court. Its duty in an appropriate case is
confined to the issue of whether the executive or judicial determination, as the case may be, of probable cause
was done without or in excess of jurisdiction or with grave abuse of discretion amounting to want of jurisdiction.
This is consistent with the general rule that criminal prosecutions may not be restrained or stayed by injunction,
preliminary or final.

There are, however, exceptions to the foregoing rule. But the Court refused to reevaluate the evidence to
determine if indeed there is probable cause for the issuance of warrants of arrest in this case. For the
respondent judge did not, in fact, find that probable cause exists, and if he did he did not have the basis
therefor. Moreover, the records of the preliminary investigation in this case are not with the Court. They were
forwarded by the Office of the City Prosecutor of Quezon City to the DOJ in compliance with the latter's 1st
Indorsement of 21 April 1993. The trial court and the DOJ must be required to perform their duty.

Larranaga v. CA, 287 SCRA 581

Petitioner Francisco Juan Larranaga is charged with two counts of kidnapping and serious illegal
detention docketed as CBU-45303 and CBU-45304 pending before the Regional Trial Court (RTC),
Branch 7, Cebu City. He is presently detained at the Bagong Buhay Rehabilitation Center.
 21

On October 1, 1997, petitioner, represented by his mother, Margarita G. Larranaga, filed with this
Court a petition for certiorari, prohibition and mandamus with writs of preliminary prohibitory and
mandatory injunction. Petitioner alleged that he was denied the right to preliminary investigation and
sought to annul the informations as well as the warrant of arrest issued in consequence thereof. In
the alternative, petitioner prayed that a preliminary investigation be conducted and that he be
released from detention pending the investigation.[1] Petitioner filed a supplemental petition for
habeas corpus or bail on October 6, 1997.[2]
On October 20, 1997, the Solicitor General filed a manifestation and motion in lieu of comment
submitting that petitioner should have been given a regular preliminary investigation before the filing
of the informations and the issuance of the warrant of arrest. The Solicitor General recommended that
petitioner be accorded his right to preliminary investigation and that he be released from detention
during the pendency thereof.[3]
On October 27, 1997, we issued a resolution holding that petitioner was deprived of his right to
preliminary investigation when the City Prosecutor of Cebu insisted that he was only entitled to an
inquest investigation.
On October 30, 1997, petitioner filed with the RTC of Cebu an urgent ex parte motion praying for
his immediate release pursuant to our October 27 resolution.[5]
The following day, on October 31, 1997, Judge Martin A. Ocampo, Presiding Judge of RTC
Branch 7, Cebu City, issued an order deferring the resolution of petitioners motion. It stated that it
would be premature to act on the motion since the trial court has not yet received an official copy of
our October 27 resolution and that said resolution has not yet attained finality. Furthermore, Judge
Ocampo called the Courts attention to the fact that petitioner has been arraigned on October 14, 1997
and waived his right to preliminary investigation.[6]
On November 3, 1997, petitioner filed with this Court an urgent motion praying, among others,
that Judge Ocampo be directed to order petitioners immediate release upon receipt of our October 27
resolution.[7]
Judge Ocampo filed with this Court a letter-complaint dated November 3, 1997 alleging that
petitioners counsels, Attorneys Raymundo A. Armovit, Ramon R. Teleron and Bernardito Florido,
deliberately withheld from this Court the omnibus order, supplemental order and order of arraignment,
all issued by him on October 14, 1997 in connection with Crim. Case No. CBU-45303 and 45304.
Judge Ocampo alleged that by withholding said orders, petitioners counsels unwittingly misled the
Court in its October 27 resolution.[8]
On November 17, 1997, the counsels for the prosecution in Crim. Case No. CBU-45303 and
45304 filed a motion for reconsideration of our October 27 resolution. [9] They raised the following
arguments:
The Solicitor General, meanwhile, in its comment to petitioners urgent motion for release,
modified its stance regarding the validity of petitioners detention.[10] It stated:

Considering that petitioner was arraigned (a supervening event after the filing of the petition and
before the issuance of the TRO), petitioner should be kept in detention without prejudice to his right to
preliminary investigation.[11]

Petitioner also filed on November 17, 1997 an urgent motion to transfer the venue of the
preliminary investigation from Cebu City to Manila and to replace the Office of the City Prosecutor of
Cebu with the Office of the State Prosecutor, Department of Justice, as the authority to conduct the
preliminary investigation because of the extensive coverage of the proceedings by the Cebu media
which allegedly influenced the peoples perception of petitioners character and guilt. [12]
The primary issues to be resolved are: (1) whether petitioner is entitled to a regular preliminary
investigation, and (2) whether petitioner should be released from detention pending the investigation.
We resolve the first issue in the affirmative.
The prosecutors argue that petitioner is entitled only to an inquest investigation under Section 7
of Rule 112 since he was lawfully arrested without a warrant under Section 5, Rule 113 of the
Revised Rules of Court.
 22

The prosecutors argument is bereft of merit. Section 7 of Rule 112[13] applies only to persons
lawfully arrested without a warrant. Petitioner in this case was, in the first place, not arrested either by
a peace officer or a private person. The facts show that on September 15, 1997, some members of
the Philippine National Police Criminal Investigation Group (PNP CIG) went to the Center for Culinary
Arts in Quezon City to arrest petitioner, albeit without warrant. Petitioner resisted the arrest
and immediately phoned his sister and brother-in-law. Petitioners sister sought the aid of Atty.
Raymundo A. Armovit. Atty. Armovit, over the phone, dissuaded the police officers from carrying out
the warrantless arrest and proposed to meet with them at the CIG headquarters in Camp Crame,
Quezon City. The police officers yielded and returned to the CIG headquarters. Petitioner, together
with his sister and brother-in-law also went to the CIG headquarters aboard their own vehicle. Atty.
Armovit questioned the legality of the warrantless arrest before CIG Legal Officer Ruben
Zacarias. After consulting with his superiors, Legal Officer Zacarias ordered to stop the arrest and
allowed petitioner to go home. Atty. Armovit made an undertaking in writing that he and petitioner
would appear before the Cebu City Prosecutor on September 17, 1997 for preliminary investigation.
An arrest is defined as the taking of a person into custody in order that he may be bound to
answer for the commission of an offense.[14] It is made by an actual restraint of the person to be
arrested, or by his submission to the custody of the person making the arrest. [15] An arrest signifies
restraint on person, depriving one of his own will and liberty, binding him to become obedient to the
will of the law.[16] The foregoing facts show no restraint upon the person of petitioner. Neither do they
show that petitioner was deprived of his own will and liberty. Hence, Section 7 of Rule 112 does not
apply to petitioner.
To be sure, even if petitioner were arrested by the PNP CIG personnel, such arrest would still be
illegal because of the absence of a warrant. Section 5 of Rule 113 states when a warrantless arrest is
deemed lawful, thus:

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

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

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

(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 proceeded against in
accordance with Rule 112, Section 7.

It does not appear in the case at bar that petitioner has just committed, is actually committing or is
attempting to commit an offense when the police officers tried to arrest him on September 15,
1997. In fact, petitioner was attending classes at the Center for Culinary Arts at that time.
We reject the prosecutors' argument that petitioner was actually committing a crime at the time of
the arrest since kidnapping with serious illegal detention is a continuing crime. In the case of Parulan
v. Director of Prisons[17] cited by the prosecutors, kidnapping with illegal detention is considered a
continuing crime where the deprivation of liberty is persistent and continuing from one place to
another. The facts show that the alleged kidnapping was committed on July 16, 1997. One of the
victims, Marijoy Chiong, was found dead in Sitio Tanawan, Barangay Guadalupe, Carcar, Cebu on
July 18, 1997, while the other victim, Jacqueline Chiong, remains missing to date. There is no
showing that at the time of the arrest on September 15, 1997, Jacqueline Chiong was being detained
by petitioner who was then residing in Quezon City. Hence, petitioner may not be considered as
continually committing the crime of kidnapping with serious illegal detention at the time of the arrest.
Judge Martin Ocampo of RTC Branch 7, Cebu City, and the state prosecutors assert that
petitioner is no longer entitled to a preliminary investigation because he had previously waived his
 23

right to such investigation. In his omnibus order dated October 14, 1997, Judge Ocampo held that
petitioner waived his right to preliminary investigation when he failed to appear during the preliminary
investigation set by the City Prosecutor in the afternoon of September 17, 1997, despite the express
warning that "failure of the counsel (to present the petitioner to the Cebu City Prosecutor on said time
and date) would be treated as a waiver of his clients right to preliminary investigation."
We disagree. A waiver, whether express or implied, must be made in clear and unequivocal
manner. Mere failure of petitioner and his counsel to appear before the City Prosecutor in the
afternoon of September 17, 1997 cannot be construed as a waiver of his right to preliminary
investigation, considering that petitioner has been vigorously invoking his right to a regular preliminary
investigation since the start of the proceedings before the City Prosecutor. At 9:00 in the morning of
September 17, 1997, petitioners counsel appeared before the City Prosecutor of Cebu and moved
that petitioner be accorded a regular preliminary investigation. The City Prosecutor, however, denied
the motion, stating that petitioner is entitled only to an inquest investigation. Petitioner orally moved
for a reconsideration, to no avail. Petitioner assailed the decision of the City Prosecutor before the
Court of Appeals on a petition for certiorari, prohibition and mandamus. After the Court of Appeals
dismissed said petition, petitioner went to this Court, still asserting that he should be accorded a
regular preliminary investigation.
Furthermore, petitioner and his counsel cannot be faulted for their refusal to comply with the City
Prosecutors directive to appear before him in the afternoon of September 17, 1997 for preliminary
investigation. As stated above, petitioners counsel appeared before the City Prosecutor earlier that
day and specifically demanded a regular preliminary investigation for his client. The City Prosecutor,
however, insisted that petitioner was entitled only to an inquest investigation which he scheduled in
the afternoon of the sameday. Petitioner and his counsel refused to submit to such investigation as it
might be construed as a waiver of petitioners right to a regular preliminary investigation.
Our ruling is not altered by the fact that petitioner has been arraigned on October 14, 1997. 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.[18] Petitioner, in this case, has been actively and
consistently demanding a regular preliminary investigation even before he was charged in court. Also,
petitioner refused to enter a plea during the arraignment because there was a pending case in this
Court regarding his right to avail of a regular preliminary investigation.[19] Clearly, the acts of petitioner
and his counsel are inconsistent with a waiver. Preliminary investigation is part of procedural due
process. It cannot be waived unless the waiver appears to be clear and informed.
The next question is whether petitioner should be released from detention pending the
investigation.
We rule in the negative.
The records show that on September 17, 1997, two informations were filed against petitioner for
kidnapping and serious illegal detention.[20] Executive Judge Priscila Agana issued a warrant of arrest
on September 19, 1997.[21] Petitioner was arrested on September 22, 1997 by virtue of said
warrant. We held in Sanchez v. Demetriou[22] that the filing of charges and the issuance of the warrant
of arrest against a person invalidly detained will cure the defect of that detention or at least deny him
the right to be released because of such defect. The Court ruled:

The original warrantless arrest of the petitioner was doubtless illegal. Nevertheless, the Regional Trial
Court lawfully acquired jurisdiction over the person of the petitioner by virtue of the warrant of arrest it
issued on August 26, 1993 against him and the other accused in connection with the rape-slay
cases. It was belated, to be sure, but it was nonetheless legal.

Even on the assumption that no warrant was issued at all, we find that the trial court still lawfully
acquired jurisdiction over the person of the petitioner. The rule is that if the accused objects to the
jurisdiction of the court over his person, he may move to quash the information, but only on that
ground. If, as in this case, the accused raises other grounds in the motion to quash, he is deemed to
have waived that objection and to have submitted his person to the jurisdiction of the court.

The Court notes that on August 13, 1993, after the petitioner was unlawfully arrested, Judge
Lanzanas issued a warrant of arrest against Antonio L. Sanchez in connection with Criminal Cases
 24

Nos. 93-124634 to 93-124637 for violation of R.A. No. 6713. Pending the issuance of the warrant of
arrest for the rape-slay cases, this first warrant served as the initial justification for his detention.

The Court also adverts to its uniform ruling that the filing of charges, and the issuance of the
corresponding warrant of arrest, against a person invalidly detained will cure the defect of that
detention or at least deny him the right to be released because of such defect. Applicable by analogy
to the case at bar is Rule 102 Section 4 of the Rules of Court that:

Sec. 4. When writ is not allowed or discharge authorized.-If it appears that the person alleged to be
restrained of his liberty is in the custody of an officer under process issued by a court or judge or by
virtue of a judgment or order of a court of record, and that the court or judge had jurisdiction to issue
the process, render the judgment, or make the order, the writ shall not be allowed; or if the jurisdiction
appears after the writ is allowed, the person shall not be discharged by reason of any informality or
defect in the process, judgment, or order. Nor shall anything in this rule be held to authorize the
discharge of a person charged with or convicted of an offense in the Philippines or of a person
suffering imprisonment under lawful judgment.

In one case, the petitioner sued on habeas corpus on the ground that she had been arrested by virtue
of a John Doe warrant. In their return, the respondents declared that a new warrant specifically
naming her had been issued, thus validating her detention. While frowning at the tactics of the
respondents, the Court said:

The case has, indeed, become moot and academic inasmuch as the new warrant of arrest complies
with the requirements of the Constitution and the Rules of Court regarding the particular description of
the person to be arrested. While the first warrant was unquestionably void, being a general warrant,
release of the petitioner for that reason will be a futile act as it will be followed by her immediate re-
arrest pursuant to the new and valid warrant, returning her to the same prison she will just have
left. This Court will not participate in such a meaningless charade.

The same doctrine has been consistently followed by the Court more recently in the Umil
case.[23] (citations omitted)

We hold, therefore, that petitioners detention at the Bagong Buhay Rehabilitation Center is legal
in view of the information and the warrant of arrest against him. The absence of a preliminary
investigation will not justify petitioners release because such defect did not nullify the information and
the warrant of arrest against him.[24] We ruled in Sanciangco, Jr. v. People:[25]

The absence of preliminary investigations does not affect the courts jurisdiction over the case. Nor do
they impair the validity of the information or otherwise render it defective;but, if there were no
preliminary investigations and the defendants, before entering their plea, invite the attention of the
court to their absence, the court, instead of dismissing the information, should conduct it or remand
the case to the inferior court so that the preliminary investigation may be conducted. [26]

As regards petitioners motion to change the venue and the authority to conduct the preliminary
investigation, we are constrained to dismiss the same for lack of jurisdiction.The holding of a
preliminary investigation is a function of the Executive Department and not of the
Judiciary.[27] Petitioner should therefore address their plea to the Department of Justice that has
control and supervision over the conduct of preliminary investigations.
Nonetheless, even if the Court had jurisdiction over the issue, petitioners motion should still be
denied because it failed to allege and prove that the City Prosecutor of Cebu has been actually
affected by the publicity. We held in Webb v. De Leon:[28]

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., 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
 25

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.[29]

We further held in People v. Teehankee:[30]

We cannot sustain appellants claim that he was denied the right to impartial trial due to prejudicial
publicity. It is true that the print and broadcast media gave the case at bar pervasive publicity, just like
all high profile and high stake criminal trials. Then and now, we rule that the right of an accused to a
fair trial is not incompatible to a free press. To be sure, responsible reporting enhances an accuseds
right to a fair trial for, as well pointed out, a responsible press has always been regarded as the
handmaiden of effective judicial administration, especially in the criminal field x x x. The press does
not simply publish information about trials but guards against the miscarriage of justice by subjecting
the police, prosecutors, and judicial processes to extensive public scrutiny and criticism.

Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The mere fact that
the trial of the appellant was given a day-to-day, gavel-to-gavel coverage does not by itself prove that
the publicity so permeated the mind of the trial judge and impaired his impartiality. For one, it is
impossible to seal the minds of members of the bench from pre-trial and other off-court publicity of
sensational criminal cases. The state of the art of our communication system brings news as they
happen straight to our breakfast tables and to our bedrooms. These news form part of our everyday
menu of the facts and fictions of life. For another, or idea of a fair and impartial judge is not that of a
hermit who is out of touch with the world. We have not installed the jury system whose members are
overly protected from publicity lest they lose their impartiality. Criticisms against the jury system are
mounting and Mark Twains wit and wisdom put them all in better perspective when he observed:
When a getleman of high social standing, intellegence, and probity swears that testimony given under
the same oath will overweigh with him, street talk and newspaper reports based upon mere hearsay,
he is worth a hundred jurymen who will swear to their own ignorance and stupidity xxx. Why could not
the jury law be so altered as to give men of brains and honesty an equal chance with fools and
miscreants? Our judges are learned in the law and trained to disregard off-court evidence and on-
camera performances of parties to a litigation. Their mere exposure to publications and publicity
stunts does not per se fatally infect their impartiality

At best, appellant can only conjure possibility of prejudice on the part of the trial judge due to the
barrage of publicity that characterized the investigation and trial of the case. In Martelino, et al. v.
Alejandro, et al., we rejected this standard of possibility of prejudice and adopted the test of actual
prejudice as we ruled 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, the records do not show that the trial judge developed actual bias against
appellant as a consequence of the extensive media coverage of the pre-trial and trial of his
case. The totality of circumstances of the case does not prove this actual bias and he has not
discharged the burden.[31]

We likewise dismiss the complaint filed by Judge Martin A. Ocampo against Attorneys Raymundo
A. Armovit, Ramon R. Teleron and Bernardito Florido for lack of concrete evidence to prove that said
lawyers deliberately withheld from the Court the orders he issued with intent to mislead the Court.
Finally, we also deny the motion of the prosecutors to dismiss the petition on the ground that it
was not filed by the proper party. The prosecutors argue that petitioner Francisco Juan Larranaga is
no longer a minor under R.A. 6809, thus, his mother, Margarita G. Larranaga, does not have the
authority to file the instant petition as his representative. It appears, however, that on October 6,
1997, petitioners mother filed a supplemental petition for habeas corpus on his behalf. This converted
the petition at bar to one for habeas corpus. Section 3, Rule 102 of the Revised Rules of Court states
 26

that a petition for habeas corpus may be filed either by the party for whose relief it is intended or by
some person on his behalf.
IN VIEW WHEREOF, we resolve to: (1) REITERATE our order to the Office of the City
Prosecutor of Cebu to conduct a regular preliminary investigation of petitioner and to the Presiding
Judge of RTC, Branch 7, Cebu City to cease and desist from proceeding with the trial of petitioner
until a preliminary investigation shall have been conducted; (2) SET ASIDE our order to immediately
release petitioner pending the preliminary investigation and thus DENY petitioners urgent motion to
implement petitioners release; (3) DISMISS Judge Ocampos complaint against Attorneys Raymundo
A. Armovit, Ramon R. Teleron and Bernardito Florido; and (4) DENY petitioners motion to change the
venue and the authority to conduct the preliminary investigation.
People v. Macam, 238 SCRA 306
Facts: Accused was charged and prosecuted for robbery with homicide as guilty beyond reasonable
doubt. Defense assails the court decision contending the constitutional rights of the accused were
violated for subjecting them to a police line up at the hospital where they were identified by the victims
without the presence of their counsel and without any warrant.

IssueL Whether or not the constitutional rights of the accused were violated.

Held: Although the accused were arrested without a warrant such defect was cured during the
proceeding when the defense failed to object on the issue during the initial proceedings before the
court. Having failed to assail the issue beforehand the accused is estopped to assail the validity of
their arrest as they further voluntarily submitted their self before the court by entering the plea of not
guilty instead of moving to quash the information before the court on ground of an invalid arrest. It is
also held that any identification of an uncounseled accused made in a police line-up is inadmissible.
HOWEVER, the prosecution did not present evidence regarding appellants identification at the line-
up. The witnesses identified the accused again in open court. Also, accused did not object to the in-
court identification as being tainted by illegal line-up. The witnesses and victims positively identified
the accused thereby further affirming the guilt of the accused beyond reasonable doubt. SC affirmed
the decision of the lower court.

Mallari v. CA, 265 SCRA 456

Sometime on December 27, 1990, at around 2:30 p.m., Pat Manipon and Pfc. Esguerra, who were
both then assigned at the Capas Police Station, received reliable information that appellant Diosdado
Mallari, who has a standing warrant of arrest in connection with Criminal Case No. 471 for homicide
in 1989, was seen at Sitio 14, Sta. Rita, Capas, Tarlac (tsn, April 18, 1991, pp. 3-4; June 27, 1991,
p.3).

Immediately upon receipt of such information, Pfc. Manipon, accompanied by Pat. Esguerra and Pat.
Narciso Simbulan, with personal knowledge of the existence of a standing warrant of arrest against
appellant in connection with Criminal Case No. 471 for Homicide, immediately proceeded to Sitio 14,
Sta. Rita, Capas, Tarlac. Upon reaching the place, the arresting officers surrounded the house of
appellant, arrested him and told him to remain stationary. Thereupon, the arresting officers searched
him and found a homemade gun (paltik) with one M-16 live ammunition (tsn, April 18, 1991, pp. 5-6,
8; June 27, 1991, pp. 3-5, 7).

Appellant was handcuffed and brought to the Capas Police Station where he was endorsed to the
chief investigator while the homemade gun and live ammunition were endorsed to the property
custodian. The incident was then entered in the police blotter after which the spot and investigation
reports were prepared (tsn, June, April 18, 1991, p. 5, 10; June 27, 1991, p. 6).[1]

After investigation, the petitioner was charged with the crime of Illegal Posession of Firearms and
Ammunition, and pleaded not guilty on arraignment. Trial on the merits ensued, after which, the
Regional Trial Court of Capas, Tarlac convicted petitioner of the crime charged, as follows:

WHEREFORE, accused Diosdado Mallari is hereby found guilty beyond reasonable doubt of the
crime of Illegal Posession of Firearms and Ammunitions and hereby sentences him to suffer an
 27

indeterminate penalty of seventeen years, four months and one day as minimum to eighteen years
and eight months as maximum.

Accused, who is a detention prisoner is given full credit for the period of his preventive imprisonment,
after compliance with Article 29 of the Revised penal Code.

SO ORDERED.[2]

Assailed in this petition for review on certiorari is the decision of respondent Court of Appeals
affirming in toto the abovequoted decision of the trial court. In its decision, the Court of Appeals held
that the testimonies of the prosecution witnesses, Pfc. Manipon and Pat Esguerra unequivocally
proved that the handgun (paltik) and the live M-16 ammunition were recovered from the person of the
appellant (herein petitioner).[3] The Court of Appeals further held that the search conducted on the
petitioner and the seizure of the subject firearm and ammunition were done on the occasion of a
lawful arrest as there was then an outstanding warrant for petitioners arrest in Criminal Case No.
471.[4]It likewise found that petitioner was arrested while committing the crime of illegal possession of
firearms in the presence of the police authorities. Thus, anent petitioners insistence that there was no
standing warrant for his arrest, thereby making the search and seizure invalid, the Court of Appeals
stated that, under the prevailing factual milieu, even in the absence of a warrant, still appellants arrest
would fall squarely within the context of Rule 113, Sec. 5 (b), Rules of Court x x x[5] which cites the
instances when a warrantless arrest may be valid.
In seeking the reversal of his conviction, petitioner questions the factual finding of the Court of
Appeals that at the time of his arrest, there was a standing warrant against him in Criminal Case No.
471. Petitioner posits that the absence of the requisite warrant is fatal and renders the search and
seizure unlawful. Corrolarily, the handgun and ammunition seized from him are inadmissible in
evidence. Petitioner also contends that it was error for the Court of Appeals to conclude that the
search and seizure could be validly effected as it was done on the occasion of a lawful warrantless
arrest, particularly, while in the act of committing the crime of illegal possession of firearms in the
presence of the arresting officers. Finally, petitioner claims that even assuming that the handgun and
ammunition had in fact been found in his possession, the prosecution failed to prove that he had no
license therefor and absent this essential element of the crime of illegal possession of firearms, it was
manifest error for the Court of Appeals to uphold his conviction.
The threshold issue is factual: whether or not there indeed existed a standing warrant for the
arrest of the petitioner. At the outset, this Court reiterates the general rule that when supported by
substantial evidence, factual findings of the Court of Appeals are final and conclusive and may not be
reviewed on appeal.[6] A careful scrunity of the records of the case at bench leads this Court to concur
with the Court of Appeals in its finding that when the petitioner was arrested, there was then a
standing warrant of arrest against him in connection with Criminal Case No. 471. This fact is manifest
from the testimonies of the arresting officers which the defense failed to rebut during trial.
Pfc. Danilo Manipon:
Q When you arrested Diosdado Mallari Mr. Witness, were you carrying a warrant of arrest then?
A No, sir.
Q Neither you did not have with you a seize and search warrant and despite the fact that you
have no search and seize warrant you have still pursued in getting the ammunition you have
just mentioned, the home made gun and the live bullet?
A Yes, sir.
COURT:
You are referring to what case?
A Homicide, maam, Criminal Case No. 471.
COURT:
Alright.
Q Was the seizure of the home made gun related to the warrant of arrest being issued by this
honorable court with respect to criminal case No. 471?
 28

COURT:
Will you clarify, I heard him saying that he did not have a warrant of arrest, is that correct?
A Yes, maam.
COURT:
What about with respect to Criminal Case No. 471 you do not have a warrant of arrest issued
by this court?
A There was, maam, I know that there was a warrant of arrest issued, that is why we proceeded
to Sitio 14, maam.
COURT:
Alright you proceeded to Sitio 14 because of the warrant of arrest issued by this court to to
apprehend Diosdado Mallari in Criminal Case No. 471, is that correct?
A Yes, maam.[7] [Underscoring supplied]
Pat. Jose Esguerra:
Q Do you have with you at the time when you arrested or when you seized the gun and the live
ammunition, a search and seize warrant?
A None, your honor.
COURT:
Q Did you have with you the warrant of arrest you mentioned with respect to CR. No. 471?
A When we went to him, we did not have a warrant of arrest because we were in a hurry but
when we returned, we reached the warrant officer, you honor.
Q Where did you return?
A When we returned to the Capas Police Station there was the warrant officer already, your
Honor.
Proceed.
ATTY. DULDULAO:
Q You said you did not bring the warrant of arrest when you arrested the the accused how did
you come to know that Diosdado Mallari was indeed the accused despite the fact that you did
not bring with you the warrant of arrest then?
A When we went there, sir, we did not have a warrant of arrest because we were in a hurry if we
will wait our warrant officer, we may not reach Diosdado Mallari, but we know that he has a
standing warrant of arrest.[8] [Underscoring provided]
Further bolstering the arresting officers testimonies is the absence of any motive on their part to
falsely testify against the petitioner. And it has been repeatedly held that without proof of such motive,
law enforcers are presumed to have regularly performed their duties. [9] Thus, absent strong and
convincing proof to the contrary, this Court is bound by the presumption that the arresting officers
were aware of the legal mandates in effecting an arrest and strictly complied with the same.
At this juncture, the Court would like to stress that this is not a case of a warrantless arrest but
merely an instance of an arrest effected by the police authorities without having the warrant in their
possession at that precise moment. Finding as it does, this Court deems it unnecessary to delve into
the applicability of Section 5, Rule 113 of the Rules of Court and on the merits of both the petitioners
and the Office of the Solicitor Generals arguments with respect thereto. The applicable provision is
not Section 5, Rule 118 of the Rules of Court on warrantless arrests, but Section 7, Rule 113 which
provides as follows:

Sec. 8. Method of Arrest by officer by virtue of warrant. -- When making an arrest by virtue of a
warrant the officer shall inform the person to be arrested of the cause of the arrest and the fact that a
warrant has been issued for his arrest, except when he flees or forcibly resists before the officer has
opportunity so to inform him or when the giving of such information will imperil the arrest.The officer
 29

need not have the warrant in his possession at the time of the arrest but after the arrest, if the person
arrested so requires, the warrant shall be shown to him as soon as practicable. [Underscoring
supplied]

The abovequoted rule clearly allows a police officer to effect arrest without the warrant in his
possession at the time of the arrest. Thus, appellants arrest being lawful, the search and seizure
made incidental thereto is likewise valid, albeit conducted without a warrant.[10] In the case of
People v. Acol,[11] where the unlicensed firearms were found when the police team apprehended the
accused for robbery and not for illegal possession of firearms and ammunition, this Court held that
the unlicensed firearms may be seized without the necessity of obtaining a search
warrant. Expounding thereon, it stated that:

` x x x The illegality of the search is independent from the illegal possession of prohibited arms. The
illegality of the search did not make legal an illegal possession of firearms. When, in pursuing an
illegal action or in the commission of a criminal offense, the offending police officers should happen to
discover a criminal offense being committed by any person, they are not precluded from performing
their duties as police officers for the apprehension of the guilty and the taking of the corpus delicti.[12]

Finally, petitioner contends that the prosecution failed to discharge its burden of proving that he
did not have the requisite license for the firearm and ammunition found in his possession. Anent this
contention, the Office of the Solicitor General does not even attempt to point out any evidence on
record of petitioners non-possession of a license or permit for there really is no such evidence. It
relies on the theory that as the firearm involved is a homemade gun or paltik and is illegal per se, it
could not have been the subject of license.[13] This, according to the Solicitor General, dispenses with
the necessity of proving that petitioner had no license to possess the firearm. This is where the
prosecutions case fails and miserably so. This Court has ruled that:

We do not agree with the contention of the Solicitor General that since a paltik is a homemade gun, is
illegally manufactures as recognized in People vs. Fajardo, and cannot be issued a license or permit,
it is no longer necessary to prove that it is unlicensed. This appears to be at first blush, a very logical
proposition. We cannot, however, yield to it because Fajardo did not say that paltikscan in no case be
issued a license or permit and that proof that a firearm is a paltik with proof that it is unlicensed.[14]

In crimes involving illegal possession of firearm, the prosecution has the burden of proving the
elements thereof, viz: (a) the existence of the subject firearm and (b) the fact that the accused who
owned or possessed it does not have the corresponding license or permit to possess the
same.[15] The latter is a negative fact which constitutes an essential ingredient of the offense of illegal
possession, and it is the duty of the prosecution not only to allege it but also to prove it beyond
reasonable doubt.[16] In the case at bench, the testimony of a representative of, a certification from the
PNP (FEU) that petitioner was not a licensee of the said firearm would have sufficed for the
prosecution to prove beyond reasonable doubt the second element of the crime of illegal
possession.[17] The absence of the foregoing is fatal to the prosecutions case and renders petitioners
conviction erroneous.
True that in the case of People vs. Mesal[18], this Court dispensed with a certification from the
Firearms and Explosives Unit (FEU) of the Philippine National Police (PNP) to establish the alleged
lack of license or permit on the part of the accused-appellant to possess the M-14 rifle found in his
possession. This was, however, premised on the fact that:

The records reveal that the allegation was successfully substantiated by other evidence which firmly
and undisputably established that accused-appellant did not have and could not possibly have, the
requisite license or authority to possess the M-14 rifle concerned. Technical Sgt. Alfredo Romasanta,
Supply Officer of the PC-INP 253rd PC Company, testified that the rifle concerned is the type of
weapon which only military men are authorized to possess x x x. [19]

The above enunciated doctrine is not applicable to this case. The records are bereft of any
evidence similar to that offered by the prosecution in Mesal to prove that the petitioner did not have
and could not possibly have the requisite license or authority to possess the paltik and the M-16 live
ammunition.
 30

In view of the foregoing, the petition is hereby GRANTED and the assailed decision is
REVERSED and SET ASIDE. Petitioner Diosdado Mallari is hereby ACQUITTED for insufficiency of
evidence and ordered immediately released unless there are other legal grounds for his continued
detention.