G.R. No.

L-56443 December 19, 1981

PEOPLE OF THE PHILIPPINES and City Fiscal NESTORIO M.

PLACER and Assistant City Fiscal ERNESTO M. BROCOY of
Butuan City, Petitioners, vs. CITY JUDGE NAPOLEON D.
VILLANUEVA of Butuan City and ROGELIM
YEE, Respondents.

AQUINO, J.:

The city fiscal and an assistant fiscal of Butuan City filed in the
city court on September 15, 1980 an information charging
Rogelim Yee with serious slander by deed. It was alleged therein
that in the afternoon of July 14, 1980 Yee with the deliberate
intent of bringing one Ofelia V. Torralba, a fourth year student,
into discredit, disrepute and contempt, willfully attacked and
assaulted her and inflicted a contusion in her left cheek in the
presence of her visitors, teachers and classmates to her great
embarrassment and inconvenience (Criminal Case No.
11500). chanroblesvirtualawlibrary chanrobles virtual law library

The fiscal certified that he conducted the corresponding

preliminary investigation and that there was probable cause or
reasonable ground to believe that serious slander by deed was
committed by Yee. He recommended bail in the amount of
P600.chanroblesvirtualawlibrary chanrobles virtual law library

The affidavits of the complainant and her witnesses were

attached to the information. Respondent judge, instead of issuing
a warrant of arrest, as has been the time- honored practice,
conducted an ex parte preliminary examination by scanning the
record to determine once more the existence of probable
cause. chanroblesvirtualawlibrary chanrobles virtual law library

After a perusal of the affidavits, he concluded that the offense

committed was either slight slander by deed committed in the
heat of anger or slight physical injuries, a light felony. Because
the information was filed sixty-four days after the offense was
committed, respondent judge dismissed the case sua sponte on
the ground of prescription. The dismissal order was issued on
September 17, 1980 or two days after the filing of the
information. chanroblesvirtualawlibrarychanrobles virtual law library
Respondent judge denied the fiscal's motion for reconsideration.
The fiscal received a copy of the order of denial on January 6,
1981. The prosecution failed to appeal the order of dismissal to
this Court, a procedure sanctioned by Republic Act No. 5440 in
relation to section 5 of Republic Act No. 5967, a 1969 law which
expanded the jurisdiction of city courts and which up to this time
is not known to some lawyers and judges. chanroblesvirtualawlibrarychanrobles virtual law library

Long after the issuance of the order of dismissal, or on March 17,

1981, the city fiscal and his assistant filed in this Court the
instant petition for certiorari and mandamus wherein they
assailed the order of dismissal on the ground of grave abuse of
discretion amounting to lack of jurisdiction. chanroblesvirtualawlibrary chanrobles virtual law library

We hold that the fiscals' petition cannot be entertained because,

as expressly indicated in sections 1 and 2, Rule 65 of the Rules of
Court, generally, certiorari and mandamus are not proper when
ordinary appeal is available as an adequate remedy. As a rule,
certiorari is not a substitute for an appeal (3 Moran's Comments
on the Rules of Court 176). chanroblesvirtualawlibrarychanrobles virtual law library

Where an appeal would have been an adequate remedy but it

was lost through petitioner's inexcusable negligence, certiorari is
not in order. Time and again, this Court discussed petitions for
certiorari to annul decisions or final orders which could have, but
were not, appealed. They were dismissed because certiorari
cannot take the place of an appeal (3 Moran's Comments on the
Rules of Court 178, citing Profeta vs. Gutierrez David, 71 Phil.
582; Republic vs. Maglanoc, 123 Phil. 508). chanroblesvirtualawlibrarychanrobles virtual law library

However, in the exercise of our supervisory jurisdiction and for

the guidance of the parties in this case and in similar cases in the
future involving the issuance of the warrant of arrest after the
information is filed in court, we win resolve the issues raised
herein (See Alfonso vs. Yatco, 80 Phil. 407). chanroblesvirtualawlibrarychanrobles virtual law library

To justify the dismissal order, respondent judge alleged that his

practice has been that after an information is filed by the fiscal,
he would conduct a preliminary examination to determine
probable cause. That examination would be ex parte because the
fiscal usually did not file with the information a motion for
hearing. After such preliminary examination, he either motu
proprio dismissed the information for lack of probable cause or he
gave it due course (p. 54, Rollo). chanroblesvirtualawlibrarychanrobles virtual law library

In this case, he dismissed the information since he "was not

satisfied of the existence of a probable cause because the crime
committed by the accused had already been extinguished by
prescription" and "it was his legal duty not only to refuse to issue
the warrant of arrest but to discuss the case" (p. 55, Rollo). chanroblesvirtualawlibrary chanrobles virtual law library

Respondent judge's position is that the fiscal's preliminary

investigation under Presidential Decree No. 911 does not preclude
him from exercising his "legal duty" "to exercise his judicial power
of determining before issuing the corresponding warrant of
arrest" the existence of probable cause (p. 59, Rollo). chanroblesvirtualawlibrary chanrobles virtual law library

Undoubtedly, respondent judge, before issuing the warrant of

arrest, is clothed with the prerogative of ascertaining probable
cause. That power is granted to him by section 3, Article IV (Bill
of Rights) of the Constitution which provides that "no warrant of
arrest shall issue except upon probable cause to be determined
by the judge, or such other responsible officer as may be
authorized by law, after examination under oath or affirmation of
the complainant and the witnesses he may produce". chanroblesvirtualawlibrary chanrobles virtual law library

The power is also granted to any judge authorized to conduct

preliminary investigations and respondent judge is given that
authority by section 6, Rule 112 of the Rules of Court and by the
charter of Butuan City, Republic Act No. 523. chanroblesvirtualawlibrarychanrobles virtual law library

But that power does not include the authority to dismiss outright
the information if the judge believes that there is no probable
cause. The judge should require the fiscal to present additional
evidence to show probable cause. If the fiscal refuses to do so,
then the case may be dismissed for "lack of prosecution" (Amarga
vs. Abbas, 98 Phil. 739, 743). chanroblesvirtualawlibrarychanrobles virtual law library

The fiscal is also authorized to determine probable cause not only

by the Bill of Rights but also by the law or rule empowering him
to conduct preliminary investigations (Secs. 2 and 14, Rule 112,
Rules of Court: Sec. 1687 of the Revised Administrative Code as
amended by Republic Acts Nos. 732 and 1799 and Republic Act
No. 5180 as amended by Presidential Decrees Nos. 77 and
911).chanroblesvirtualawlibrarychanrobles virtual law library
The fiscal is a "responsible officer authorized by law" within the
meaning of section 3 of the Bill of Rights. His determination of
probable cause is a sufficient justification for the issuance of a
warrant of arrest. chanroblesvirtualawlibrary chanrobles virtual law library

Thus, it was held that "in a clash of views between the judge who
did not investigate and the fiscal who did, or between the fiscal
and the offended party or the defendant, those of the fiscal's
should normally prevail" (People vs. Pineda, 65 O.G. 2595, 20
SCRA 748, 756). chanroblesvirtualawlibrarychanrobles virtual law library

In fact, the settled practice is that after the fiscal has conducted a
preliminary investigation and filed an information, the Court of
First Instance issues the warrant of arrest. chanroblesvirtualawlibrary chanrobles virtual law library

Generally, the Court of First Instance does not conduct any

preliminary examination to determine probable cause or to
confirm the fiscal's determination thereof for that would be a
time-wasting ritual or a duplicitous proceeding. chanroblesvirtualawlibrarychanrobles virtual law library

The time-saving practice has been for the judge (municipal, city
or Court of First Instance) to rely on the preliminary investigation
conducted by the fiscal as the basis for issuing the warrant of
arrest. That practice is supported by the presumption that the
fiscal performed his duties regularly and competently (Edillon vs.
Narvios, Administrative Case No. 1753, August 21, 1980, 99
SCRA 174) And that practice existed even under the old
Constitution when section 1(3) of the Bill of Rights did not contain
the terms "warrant of arrest" and "such other responsible officer
as may be authorized by law". chanroblesvirtualawlibrary chanrobles virtual law library

We hold that, as a rule, a trial judge should not hold another

preliminary examination to determine probable cause in case the
fiscal has filed an information and certified that he has conducted
the requisite preliminary investigation. That certification means
that there is a prima facie case against the accused and that the
issuance of a warrant of arrest is justified. chanroblesvirtualawlibrary chanrobles virtual law library

Ordinarily, the fiscal's certification should be a sufficient

compliance with the constitutional requirement of probable cause
as a sine qua non for the issuance of a warrant of arrest. Thus, it
was held that the filing of an information in the city court by the
city fiscal implies that the fiscal had conducted the requisite
preliminary investigation so that no further investigation would
have to be made by the city court (Astero vs. Chief of Police of
Dagupan City, L-26741, July 31, 1969, 28 SCRA 1078, 1084;
People vs. Villaraza, L-46228, January 17, 1978, 81 SCRA 95,
98).chanroblesvirtualawlibrary chanrobles virtual law library

This case illustrates the mischief or prejudice arising from the act
of the city judge in duplicating the preliminary examination held
by the fiscal. Here, respondent judge on the pretext of
determining probable cause arrived at the conclusion (before
arraignment) that the criminal liability of the accused was
extinguished by prescription. chanroblesvirtualawlibrarychanrobles virtual law library

What respondent judge actually did was not to verify whether the
fiscal's determination of probable cause was correct but to find
out whether the criminal liability of the accused was already
extinguished, which is a different matter. Extinction of criminal
liability presupposes not merely probable cause but the guilt of
the accused. chanroblesvirtualawlibrarychanrobles virtual law library

In the instant case, the investigating fiscal gave accused Yee a

chance to be heard at the preliminary investigation. He did not
submit any counter-affidavit. He was furnished by the fiscal with
a copy of the latter's resolution wherein he found that there
existed a prima facie case for grave slander by deed against the
accused. Yee did not controvert that resolution. chanroblesvirtualawlibrary chanrobles virtual law library

The case against him was terminated because of the precipitate

or premature order of dismissal issued by respondent judge on
his own volition on the basis of his independent assessment of
Yee's criminal liability. As already noted, that order was rendered
two days after the filing of the information. chanroblesvirtualawlibrarychanrobles virtual law library

In People vs. Ocaya, L-47448, May 17, 1978, 83 SCRA 218, the
fiscal, after holding a preliminary investigation, charged the three
accused with lesiones graves in the Court of First Instance.
Instead of issuing a warrant of arrest, the district judge dismissed
the case because in his opinion the crime committed was
only lesiones leves since it was stated in the medical certificate
that the victim's injuries would require medical attendance from
seven to ten days. chanroblesvirtualawlibrary chanrobles virtual law library
The certification contradicted the victim's affidavit that she was
incapacitated from her customary labor for more than thirty days
and the allegation in the information that she suffered a
disfigurement in the face. The trial court's order of dismissal was
assailed in this Court by means of a petition for certiorari and
mandamus. chanroblesvirtualawlibrarychanrobles virtual law library

It was held that the trial court prematurely dismiss the case. The
dismissal order was set aside and the case was assigned to
another trial judge who was directed to issue a warrant of arrest
and thereafter to proceed with the arraignment and trial. chanroblesvirtualawlibrarychanrobles virtual law library

In the Ocaya case, the trial judge did not advance the contention
put forward in this case by respondent city judge that the court
where the information is filed should hold another preliminary
examination before issuing the warrant of arrest. chanroblesvirtualawlibrarychanrobles virtual law library

Although in the instant case we find that the city court erred in
dismissing the case on its own motion on the controversial
ground of prescription, nevertheless, the petition has to be
dismissed because no appeal was seasonably made from the
dismissal order and certiorari and mandamus are not substitutes
for an appeal that had lapsed. chanroblesvirtualawlibrary chanrobles virtual law library

WHEREFORE, the petition is dismissed. No costs. chanroblesvirtualawlibrarychanrobles virtual law library

SO ORDERED.

Concepcion Jr., and De Castro, JJ., concur. chanroblesvirtualawlibrarychanrobles virtual law library

Abad Santos, J., concur in the result.