CRIM PRO Rule 112 - RODIS, SR. vs.

SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES

Petitioner Hermilo v. Rodis, Sr., former President of Philfinance was charged before the Sandiganbayan
with five (5) counts of violation of Section 3(b) of the Anti-Graft and Corruption Practices Act.On May 31,
1985, petitioner filed a motion to quash said informations on the ground of lack of preliminary
investigation, with the alternative prayer that the issue and/or enforcement of the warrant of arrests
against him be held in abeyance while he seeks a reinvestigation by the Tanodbayan pursuant to his right
to preliminary investigation.
In its opposition, the Prosecution cited as basis Sec. 3, Rule 117 of the 1985 Rules on Criminal Procedure
enumerating the grounds for a motion to quash. It argued that since lack of preliminary investigation is not
among those enumerated thereunder, the motion to quash on this ground should be denied for lack of
merit and instead, petitioner should be ordered to file his Petition for Reinvestigation and/or Motion for
Reconsideration in accordance with Section 13 of the Revised Rules of Procedure of the Tanodbayan.
Petitioner filed a petition for re-investigation with the Tanodbayan as suggested. While this was pending,
the Sandiganbayan promulgated the assailed resolution denying petitioner's motion to quash for lack of
merit, stating:
the alleged absence of preliminary investigation or his inability to participate in the preliminary
investigation for the reason that he was not duly served with a subpoena is not a proper ground
for a motion to quash. If the accused was not afforded due preliminary investigation, the proper
remedy for him is to file a Petition for Reinvestigation with the Office of the Tanodbayan, pursuant
to Section (13) of Administrative Order No. 111 of the Revised Rules of Procedure of
the Tanodbayan, promulgated on December 1, 1979.
Issue: Whether the lack of preliminary investigation may quash an information considering that it is not
among those enumerated under Sec 3, Rule 117.
Held-Ratio: No, but respondent Sandiganbayan is ordered to hold in abeyance the proceedings therein
with respect to petitioner, subject to the outcome of the reinvestigation of the Tanodbayan.
Petitioner
Lack
of
preliminary
investigation
affects
the
regularity
of
the
proceedings
which led to
the filing of the
information..

Respondent
SC
Petitioner does not It is not disputed that a preliminary investigation was conducted by the
dispute
that
a
Tanodbayan. Petitioner, however, was not able to participate as the
preliminary
subpoena addressed to him at his last known address, was returned
investigation
was
"unserved"
indeed
conducted, Under Section 3, sub-section (d) of Rule 112 of the 1985 Rules on Criminal
what he is really
Procedure, "if the respondent cannot be subpoenaed, or if subpoenaed,
protesting against is
does not submit counter-affidavits within the ten (10) day period, the
the lost opportunity to
investigating officer shall base his resolution on the evidence presented by
participate
therein
the complainant." This provision does not require as a condition sine qua
due to the alleged
non to the validity of the proceedings the presence of the accused for as
failure
of
the
long as efforts to reach him were made.
Tanodbayan to serve However, considering that petitioner has voluntarily appeared before the
a subpoena upon
Sandiganbayan in connection with the criminal cases in question and has
him, which did not
appeared in other preliminary investigations of other PHILFINANCE
affect the regularity
charges, to apply the full force and effect of the rule would greatly prejudice

of the preliminary
him.
investigation.
The avowed purposes of a preliminary investigation are:
o to secure the innocent against hasty, malicious and oppressive
prosecution
o to protect him from an open and public accusation of crime, from the
trouble, expense and anxiety of a public trial
o to protect the state from useless and expensive trials
While the absence of preliminary investigations does not affect the court's
jurisdiction over the case or do they impair the validity of the information,
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 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. In this case, the Tanodbayan, has the duty to conduct
the said investigation.

Paderanga vs. Drilon [GR 96080, 19 April 1991] En Banc, Regalado (J): 14
concur
Facts: On 16 October 1986, an information for multiple murder was filed in the
Regional Trial Court, Gingoog City, against Felipe Galarion, Manuel Sabit, Cesar
Sabit, Julito Ampo, Eddie Torion, John Doe, Peter Doe and Richard Doe, for the
deaths on 1 May 1984 of Renato Bucag, his wife Melchora Bucag, and their son
Renato Bucag II. Venue was, however, transferred to Cagayan de Oro City per
Administrative Matter 87- 2-244. Only Felipe Galarion was tried and found guilty as
charged. The rest of the accused remained at large. Felipe Galarion, however,
escaped from detention and has not been apprehended since then. In an amended
information filed on 6 October 1988, Felizardo Roxas, alias "Ely Roxas," "Fely Roxas"
and "Lolong Roxas," was included as a co-accused. Roxas retained Atty. Miguel P.
Paderanga as his counsel. As counsel for Roxas, Paderanga filed, among others, an
Omnibus Motion to dismiss, to Quash the Warrant of Arrest and to Nullify the
Arraignment on 14 October 1988. The trial court in an order dated 9 January 1989,
denied the omnibus motion but directed the City Prosecutor "to conduct another
preliminary investigation or reinvestigation in order to grant the accused all the
opportunity to adduce whatever evidence he has in support of his defense." In the
course of the preliminary investigation, through a signed affidavit, Felizardo Roxas
implicated Atty. Paderanga in the commission of the crime charged. The City
Prosecutor of Cagayan de Oro City inhibited himself from further conducting the
preliminary investigation against Paderanga at the instance of the latter's counsel,
per his resolution dated 7 July 1989. In his first indorsement to the Department of
Justice, dated 24 July 1989, said city prosecutor requested the Department of Justice
to designate a state prosecutor to continue the preliminary investigation against
Paderanga. In a resolution dated 6 September 1989, the State Prosecutor Henrick F.

Gingoyon, who was designated to continue with the conduct of the preliminary
investigation against Paderanga, directed the amendment of the previously
amended information to include and implead Paderanga as one of the accused
therein. Paderanga moved for reconsideration, contending that the preliminary
investigation was not yet completed when said resolution was promulgated, and
that he was deprived of his right to present a corresponding counter-affidavit and
additional evidence crucial to the determination of his alleged "linkage" to the crime
charged. The motion was, however, denied by Gingoyon in his order dated 29
January 1990. From the aforesaid resolution and order, Paderanga filed a Petition for
Review with the Department of Justice. Thereafter, he submitted a Supplemental
Petition with Memorandum, and then a Supplemental Memorandum with Additional
Exculpatory/Exonerating Evidence Annexed, attaching thereto an affidavit of Roxas
dated 20 June 1990 and purporting to be a retraction of his affidavit of 30 March
1990 wherein he implicated Paderanga. On 10 August 1990, the Department of
Justice, through Undersecretary Silvestre H. Bello III, issued Resolution 648
dismissing the said petition for review. His motion for reconsideration having been
likewise denied, Paderanga then filed the petition for mandamus and prohibition
before the Supreme Court.
Issue: Whether there is no prima facie evidence, or probable cause, or sufficient
justification to hold Paderangato a tedious and prolonged public trial.
Held: A 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. The quantum of evidence now required in preliminary investigation is such
evidence sufficient to "engender a well founded belief" as to the fact of the
commission of a crime and the respondent's probable guilt thereof. A preliminary
investigation is not the occasion for the full and exhaustive display of the parties'
evidence; it is for the presentation of such evidence only as may engender a well
grounded belief that an offense has been committed and that the accused is
probably guilty thereof. Preliminary investigation is generally inquisitorial, and it is
often the only means of discovering the persons who may be reasonably charged
with a crime, to enable the fiscal to prepare his complaint or information. It is not a
trial of the case on the merits and has no purpose except that of determining
whether a crime has been committed and whether there is probable cause to
believe that the accused is guilty thereof, and it does not place the person against
whom it is taken in jeopardy. The institution of a criminal action depends upon the
sound discretion of the fiscal. He has the quasi-judicial discretion to determine
whether or not a criminal case should be filed in court. Hence, the general rule is
that an injunction will not be granted to restrain a criminal prosecution. The case of
Brocka, et al. vs. Enrile, et al. cites several exceptions to the rule, to wit: (a) To
afford adequate protection to the constitutional rights of the accused; (b) When

necessary for the orderly administration of justice or to avoid oppression or

multiplicity of actions; (c) When there is a prejudicial question which is sub-judice;
(d) When the acts of the officer are without or in excess of authority; (e) Where the
prosecution is under an invalid law, ordinance or regulation; (f) When double
jeopardy is clearly apparent; (g) Where the court has no jurisdiction over the
offense; (h) Where it is a case of persecution rather than prosecution; (i) Where the
charges are manifestly false and motivated by the lust for vengeance; and (j) When
there is clearly no prima facie case against the accused and a motion to quash on
that ground has been denied. A careful analysis of the circumstances obtaining in
the present case, however, will readily show that the same does not fall under any
of the aforesaid exceptions.
Paredesvs.Sandiganbayan(G.R.No.89989,28January1991)
FACTS: OnJanuary21,1976,CeferinoS.Paredes, Jr.,thentheProvincialAttorneyof Agusan
del Sur, applies for a free patent for a lot located beside the Washington Highwayin
SanFrancisco,AgusandelSur.Hisapplicationwasfavorablyacteduponby theland
inspector,ArmandoLiuson.OCTNo.P8379wasissuedtohim.After8years, the
SangguniangBayanof theMinucipalityofSanFranciscopassedResolutionNo.40,
requestingtheSangguniangPanlalawiganofthesaidprovincetoassistitinrecovering Lot
No.3097 fromAtty.Paredes, Jr.TheResolutionwasapprovedby theSangguniang
Panlalawigan. A Civil Case was then filed in the RTC of Agusan del Sur. During its
pendency, Teofilo Gelacio (former ViceMayor of San Francicsco) filed with the
Tanodbayan a criminal complaint charging Atty. Predes with having violated Sec.
3(a) of RA No. 3019 because he allegedly used his office as Provincial Attorney to
influence, persuade, and induce Armando Luison to favorably indorse his free patent
application. The Tanodbayan (now ombudsman) referred the case to Fiscal Ernesto
Brocoy of Butuan City for preliminary investigation. Fiscal Brocoy issued summons
to Atty. Paredes, Jr.toappearatthepreliminaryinvestigationofthecaseon29August1987.
However, the summons were served on 19 November 1987 upon the INP Station
CommanderofSanFrancisco,insteadofAtty.Paredes.Thesummonsdidnotreach Atty.
Paredes.Nevertheless,witoutwaitingforproofofserviceofthesummonsonthe accused,
Fiscal Brocy proceeded to conduct the preliminary examination of the complainant
and his witnesses. On 29 August 1988, the fiscal issued a resolution finding a prima
facie case of violation of Section 3(a) of R.A. 3019 committed by the accused. The
Fiscals resolution was approved by Tanodbayan Prosecutor Josephine Fernandez.
AttorneyParedesfiledamotionforreconsiderationoftheTanodbayansresolution.He
assailed the validity of the preliminary investigation that was conducted by Fiscal
Brocoywithoutnoticetohim.Hismotionforreconsiderationwasdenied. Inthelocal
elections,AttorneyParedeswaselectedgovernorofAgusandelSur.OnMay 20,1988,the
RegionalTrialCourtofAgusan delSurrenderedadecisioninCivilCase No.512,annulling
GovernorParedesFreePatentNo.(X8)1253andhisOCTNo.P8379 and restoring the land
to the mass of public domain. On August 28, 1988, an informationwas filedagainst
GovernorParedesin theSandiganbayan (Crim.CaseNo. 13800) and awarrant for his

arrest, fixing bail of P20,000 for his provisionalliberty, wasissuedonAugust30,1989

andserveduponhim.Herefusedtopostbailinprotest against the injustice to him as
Governor,. Consequently, he was detained in the municipaljailofSanFrancisco. On
September 20, 1989, this petition for habeas corpus was filed by his wife, Mrs. Eden
Paredes, against the Sandiganbayan. She alleged that the warrant for her husbands
arrestwasvoidbecausethepreliminaryinvestigationwasvoid,and,thatthe crimecharged
intheinformationagainsthimhadalreadyprescribed.
ISSUE: Whether the information against Governor Paredes is invalid because the
preliminaryinvestigationwasinvalidandtheoffensechargedhasalreadyprescribed.
HELD: No. The absence of a preliminary investigation does not affect the courts
jurisdictionoverthecasenorimpairthevalidityoftheinformationorotherwiserender it
defective.Theremedyoftheaccusedinsuchacaseistocalltheattentionofthecourt tothe
lackofapreliminaryinvestigationanddemand,asamatterofright,thatonebe conducted.
Thecourt,insteadofdismisingtheinformation,shouldmerelysuspendthe trialandorder
thefiscaltoconductapreliminaryinvestigation. Thedefenseofprescriptionoftheoffense
chargedintheinformationshouldbepleaded inthecriminalactionotherwiseitwouldbe
deemedwaived.Itisapropergroundfora motion to quash which should be filed before
the arraignment of the accused for whether the crimemaystillbeprosecutedand
penalizedshouldbe determinedin the criminalcasenotinaspecialproceeding ofhabeas
corpus. Findingnomeritinthepetition,thesameis herebydenied.Theaccused,Ceferino
Paredes,Jr.should fileabailbondofP20,000,fixedbytheSandiganbayanfor his
provisionalliberty.

Pilapil v. Sandiganbayan
Read the full text of Pilapil v. Sandiganbayan, G.R. No. 101978, April
7, 1993.
Facts: Accused was congressman, who receive an L300 for
ambulance in behalf of the Municipality of Tigaon, Camarines Sur
from PCSO. He did not deliver such ambulance. The mayor of the
municipality requested from PCSO and found out about the
donation. Sandiganbayan Presiding Justice Francis Garchitorena,
requested an investigation. Preliminary investigation was conducted
for Malversation of Public Property under Art 217 of the Revised
Penal Code. Initially, the Ombudsman Investigator recommended
malversation cannot prosper finding no probable cause but it was
disapproved and filing was recommended by the Asst. ombudsman.

Until finally the crime charged is for violation of Section 3(e)

of Republic Act No. 3019 [Being a public officer 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 and damage to the
municipal gov't] recommended by ombudsman Vasquez. Warrant of
arrest was issued, accused posted bail. Petitioner predicated his
motion to quash on the ground of lack of jurisdiction over his person
because the same was filed without probable cause. In addition
thereto, petitioner cites the fact that the information for violation of
the Anti-Graft Law was filed although the complaint upon which the
preliminary investigation was conducted is for malversation.
Accused appealed the decision of the Sandiganbayan denying his
quashal and reconsideration.
Issue: WON Sandiganbayan committed grave abuse of discretion in
denying petitioner's motion to quash and motion for reconsideration
for lack of jurisdiction and lack of preliminary investigation because
the investigation was for malversation and not for the specific
charge of violation of Sec. 3(e), Republic Act No. 3019.
Ruling : No. 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. When the court has jurisdiction, any irregularity in the
exercise of that power is not a ground for a motion to quash. Lack of
jurisdiction is not waivable, but absence of preliminary investigation
is waivable. In fact, it is frequently waived. 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.
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. It is well-settled that the right to a preliminary
investigation is not a fundamental right and may be waived
expressly or by silence. Failure of accused to invoke his right to a
preliminary investigation constituted a waiver of such right and any
irregularity that attended it. The right may be forfeited by inaction
and can no longer be invoked for the first time at the appellate level.
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. 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 to believe that the act or
omission complained of constitutes the offense charged. The
determination of the crime and the matters of defense can be best
passed upon during a full-blown trial.
SAMULDE v SALVANI
165 SCRA 734
GRIO-AQUINO: September 26, 1988
NATURE
Appeal from the decision of the RTC
FACTS
- Municipal Judge Samulde conducted a preliminary
investigation upon a complaint for robbery. After
making a preliminary investigation based on the
affidavits of the complainant and her witnesses and
counter-affidavits of the respondent and his
witnesses, Judge Samulde transmitted the records of
the case to Provincial Fiscal Salvani with his finding
that "there is prima facie evidence of robbery as
charge in the complaint". The fiscal returned the
records on the ground that Judge Samulde failed to

include the warrant of arrest against the accused as

provided in Sec 5, Rule 112 of the 1985 Rules on
Criminal Procedure. Judge Samulde sent back the
records to Fiscal Salvani. He pointed out that under
Sec 6, Rule 112, he may issue a warrant of arrest if
he is satisfied "that a probable cause exists and that
there is a necessity of placing the respondent under
immediate custody in order not to frustrate the ends
of justice, " implying that, although he found that a
probable cause existed, he did not believe that the
accused should be immediately placed under
custody. Hence, he refused to issue a warrant of
arrest.
- A special civil action of mandamus was filed in the
RTC by Provincial Fiscal Salvani against Judge
Samulde to compel the latter to issue a warrant of
arrest. The RTC dismissed the petition but
nevertheless ordered Judge Samulde to issue a
warrant of arrest, and to transmit the warrant to the
Provincial Fiscal for appropriate action. He further
advised the Municipal Judge "that henceforth he
adheres to the same rule in similar cases where he
conducts a preliminary investigation with a finding of
a prima facie or probable cause." Unconvinced, Judge
Samulde appealed to this Court.
ISSUE
WON a judge may be compelled to issue a warrant of
arrest upon a finding of probable cause
HELD
NO
Ratio 3 conditions must concur for the issuance of
the warrant of arrest. The investigating judge must:
(a) have examined in writing and under oath the
complainant and his witnesses by searching
questions and answers;
(b) be satisfied that a probable cause exists; and
(c) that there is a need to place the respondent
under immediate custody in order not to frustrate the
ends of justice.
Reasoning The mandatory provision that the
investigating judge "must issue a warrant of arrest" if
he finds probable cause that the respondent
committed the crime charged, found in all previous
rules of criminal procedure, from General Orders No.
58 down to Rule 112 of the 1964 Revised Rules of
Court, is absent in Section 1 of the 1985 Rules on
Criminal Procedure. It is not obligatory, but merely
discretionary, upon the investigating judge to issue a
warrant for the arrest of the accused, for the
determination of whether a probable cause exists
and whether it is necessary to arrest the accused in
order not to frustrate the ends of justice, is left to his
sound judgment or discretion. In this particular case,
since the robbery charge was the offshoot of a
boundary dispute between two property owners, the
investigating judge did not believe there was any
danger of the accused absconding before the filing of
the information against him by the fiscal, hence, he
found no need to place him under immediate custody.
Dispositive The appealed decision is SET ASIDE.

Miaque vs. Pamonag

Facts: On August 27, 1998, complainants Bernie Miaque, Noel Cabobos, Rodolfo
Divinagracia and Peter Jimenea, who are connected with the Daily Informer, were
charged before the Municipal Circuit Trial Court of Pototan-Mina, Iloilo, presided by

respondent Judge Nilo P. Pamonag, with the crime of libel. The respondent Judge
conducted a preliminary investigation and thereafter issued warrants for the arrest
of the complainants, fixing the bail at P10,000.00 each. Complainants filed an
administrative case against the respondent Judge for gross ignorance of the law,
grave abuse of judicial functions and authority and issuing patently illegal orders.
Complainants contended that under Article 360 of the Revised Penal Code, as
amended by R.A. No. 4363, the respondent Judge neither has the authority to
conduct a preliminary investigation nor to issue warrants for their arrest. The
respondent Judge admitted his mistake and explained that the same was his first
libel case and that he issued the challenged warrants in good faith. He said that he
erroneously relied on a pamphlet of the Revises Penal Code quoting Article 360
which consisted only of four (4) paragraphs, without any word on the conduct of a
preliminary investigation. He also expressed that had his attention been earlier
called by the parties, he could have easily rectified the mistake by recalling the
warrants of arrest. He added that he had been sufficiently chastised in several
issues of the Daily Informer which publicized his blunder. Respondent likewise
stressed that except for this single honest mistake, he had never brought dishonor
to his family and to the court. For his lapse, he promised to keep himself updated on
laws, as well as on jurisprudence and circulars of the Supreme Court.
Issue: W/N respondent Judge is guilty of gross ignorance of the law.
Held: Yes. Under Article 360 of the Revised Penal Code, as amended by Republic
Act No. 4363, which took effect on June 19, 1965, jurisdiction to conduct preliminary
investigation in libel cases is indeed lodged with the provincial or city prosecutor of
the province or city or with the municipal court of the city or capital of the province.
Moreover, as early as April 5, 1967 the Department of Justice issued a circular
relative to the provisions of Article 360 of the Revised Penal Code as amended by
R.A. No. 4363. Pertinent portion thereof reads: It should be noted from these
provisions that a complaint or information for libel may be filed only in the Court of
First Instance. The preliminary investigation of the criminal case may, however, be
conducted by the city court of the city or the municipal court of the capital of the
province where the case is filed. The Municipal Circuit Trial Court of Pototan-Mina,
Iloilo, Branch 008, over which respondent Judge presided in an acting capacity, is
not a court in the cities of Iloilo province (Iloilo City and Passi City), nor a court in
Iloilo City, the capital of the province of Iloilo. He therefore had no authority to
conduct a preliminary investigation and to issue the corresponding warrants of
arrest in the said libel case. Although judges cannot be held to account or answer
criminally, civilly or administratively for every erroneous judgment or decision
rendered by him in good faith, it is imperative that they should have basic
knowledge of the law. To be able to render justice and to maintain public confidence
in the legal system, judges must keep abreast of the laws and jurisprudence. Rule
1.01, Canon 1 of the Code of Judicial Conduct provides that judges must be the
embodiment of competence, integrity and independence. Obviously, they cannot

live up to this expectation if they act in a case without jurisdiction through

ignorance.