G.R. No.

182677               August 3, 2010

JOSE ANTONIO C. LEVISTE, Petitioner,

vs.
HON. ELMO M. ALAMEDA, HON. RAUL M. GONZALEZ, HON. EMMANUEL Y. VELASCO,
HEIRS OF THE LATE RAFAEL DE LAS ALAS, Respondents.

CARPIO MORALES, J.:

Jose Antonio C. Leviste (petitioner) assails via the present petition for review filed on May
30, 2008 the August 30, 2007 Decision1 and the April 18, 2008 Resolution 2 of the Court of
Appeals in CA-G.R. SP No. 97761 that affirmed the trial court’s Orders of January 24, 31,
February 7, 8, all in 2007, and denied the motion for reconsideration, respectively.

Petitioner was, by Information3 of January 16, 2007, charged with homicide for the death of
Rafael de las Alas on January 12, 2007 before the Regional Trial Court (RTC) of Makati City.
Branch 150 to which the case was raffled, presided by Judge Elmo Alameda, forthwith
issued a commitment order4 against petitioner who was placed under police custody while
confined at the Makati Medical Center.5

After petitioner posted a ₱40,000 cash bond which the trial court approved,6 he was
released from detention, and his arraignment was set on January 24, 2007.

The private complainants-heirs of De las Alas filed, with the conformity of the public
prosecutor, an Urgent Omnibus Motion7 praying, inter alia, for the deferment of the
proceedings to allow the public prosecutor to re-examine the evidence on record or to
conduct a reinvestigation to determine the proper offense.

The RTC thereafter issued the (1) Order of January 24, 20078 deferring petitioner’s
arraignment and allowing the prosecution to conduct a reinvestigation to determine the
proper offense and submit a recommendation within 30 days from its inception, inter alia;
and (2) Order of January 31, 20079 denying reconsideration of the first order. Petitioner
assailed these orders via certiorari and prohibition before the Court of Appeals.

Meantime, petitioner filed an Urgent Ex-Parte Manifestation and Motion before the trial court
to defer acting on the public prosecutor’s recommendation on the proper offense until after
the appellate court resolves his application for injunctive reliefs, or alternatively, to grant
him time to comment on the prosecutor’s recommendation and thereafter set a hearing for
the judicial determination of probable cause.10 Petitioner also separately moved for the
inhibition of Judge Alameda with prayer to defer action on the admission of the Amended
Information.11

The trial court nonetheless issued the other assailed orders, viz: (1) Order of February 7,
200712 that admitted the Amended Information13 for murder and directed the issuance of a
warrant of arrest; and (2) Order of February 8, 200714 which set the arraignment on
February 13, 2007. Petitioner questioned these two orders via supplemental petition before
the appellate court.

The appellate court dismissed petitioner’s petition, hence, his present petition, arguing that:
PRIVATE RESPONDENT DID NOT HAVE THE RIGHT TO CAUSE THE REINVESTIGATION OF
THE CRIMINAL CASE BELOW WHEN THE CRIMINAL INFORMATION HAD ALREADY BEEN
FILED WITH THE LOWER COURT. HENCE, THE COURT OF APPEALS COMMITTED A GRAVE
ERROR IN FINDING THAT RESPONDENT JUDGE DID NOT ACT WITH GRAVE ABUSE OF
DISCRETION IN GRANTING SUCH REINVESTIGATION DESPITE HAVING NO BASIS IN THE
RULES OF COURT[;]

RESPONDENT JUDGE ACTED WITH GRAVE ABUSE OF DISCRETION IN ADMITTING STATE

PROSECUTOR VELASCO’S AMENDED INFORMATION, ISSUING A WARRANT OF ARREST, AND
SETTING THE CASE BELOW FOR ARRAIGNMENT, CONSIDERING THAT THE VALIDITY AND
LEGALITY OF HIS ORDERS DATED 24 AND 31 JANUARY 2007, WHICH LED TO THE
QUESTIONABLE REINVESTIGATION AND ILLEGAL AMENDED INFORMATION[,] ARE YET TO
BE RESOLVED BY THIS HONORABLE COURT (sic); [AND]

CONSIDERING THAT PROSECUTOR VELASCO’S FINDINGS IN HIS RESOLUTION DATED 2

FEBRUARY 2007 ARE BLATANTLY BASED ON MERE SPECULATIONS AND CONJECTURES,
WITHOUT ANY SUBSTANTIAL OR MATERIAL NEW EVIDENCE BEING ADDUCED DURING THE
REINVESTIGATION, RESPONDENT JUDGE SHOULD HAVE AT LEAST ALLOWED PETITIONER’S
MOTION FOR A HEARING FOR JUDICIAL DETERMINATION OF PROBABLE
CAUSE.15 (emphasis in the original omitted)

Records show that the arraignment scheduled on March 21, 2007 pushed through during
which petitioner refused to plead, drawing the trial court to enter a plea of "not guilty" for
him.

Prior thereto or on February 23, 2007, petitioner filed an Urgent Application for Admission to
Bail Ex Abundanti Cautela16 which the trial court, after hearings thereon, granted by Order
of May 21, 2007,17 it finding that the evidence of guilt for the crime of murder is not strong.
It accordingly allowed petitioner to post bail in the amount of ₱300,000 for his provisional
liberty.

The trial court, absent any writ of preliminary injunction from the appellate court, went on
to try petitioner under the Amended Information. By Decision of January 14, 2009, the trial
court found petitioner guilty of homicide, sentencing him to suffer an indeterminate penalty
of six years and one day of prision mayor as minimum to 12 years and one day of reclusion
temporal as maximum. From the Decision, petitioner filed an appeal to the appellate court,
docketed as CA-G.R. CR No. 32159, during the pendency of which he filed an urgent
application for admission to bail pending appeal. The appellate court denied petitioner’s
application which this Court, in G.R. No. 189122, affirmed by Decision of March 17, 2010.

The Office of the Solicitor General (OSG) later argued that the present petition had been
rendered moot since the presentation of evidence, wherein petitioner actively participated,
had been concluded.18

Waiver on the part of the accused must be distinguished from mootness of the petition, for
in the present case, petitioner did not, by his active participation in the trial, waive his
stated objections.

Section 26, Rule 114 of the Rules of Court provides:

SEC. 26. Bail not a bar to objections on illegal arrest, lack of or irregular preliminary
investigation. – An application for or admission to bail shall not bar the accused from
challenging the validity of his arrest or the legality of the warrant issued therefor, or from
assailing the regularity or questioning the absence of a preliminary investigation of the
charge against him, provided that he raises them before entering his plea. The court shall
resolve the matter as early as practicable but not later than the start of the trial of the case.

By applying for bail, petitioner did not waive his right to challenge the regularity of the
reinvestigation of the charge against him, the validity of the admission of the Amended
Information, and the legality of his arrest under the Amended Information, as he vigorously
raised them prior to his arraignment. During the arraignment on March 21, 2007, petitioner
refused to enter his plea since the issues he raised were still pending resolution by the
appellate court, thus prompting the trial court to enter a plea of "not guilty" for him.

The principle that the accused is precluded after arraignment from questioning the illegal
arrest or the lack of or irregular preliminary investigation applies "only if he voluntarily
enters his plea and participates during trial, without previously invoking his objections
thereto."19 There must be clear and convincing proof that petitioner had an actual intention
to relinquish his right to question the existence of probable cause. When the only proof of
intention rests on what a party does, his act should be so manifestly consistent with, and
indicative of, an intent to voluntarily and unequivocally relinquish the particular right that no
other explanation of his conduct is possible.20

From the given circumstances, the Court cannot reasonably infer a valid waiver on the part
of petitioner to preclude him from obtaining a definite resolution of the objections he so
timely invoked. Other than its allegation of active participation, the OSG offered no clear
and convincing proof that petitioner’s participation in the trial was unconditional with the
intent to voluntarily and unequivocally abandon his petition. In fact, on January 26, 2010,
petitioner still moved for the early resolution of the present petition.21

Whatever delay arising from petitioner’s availment of remedies against the trial court’s
Orders cannot be imputed to petitioner to operate as a valid waiver on his part. Neither can
the non-issuance of a writ of preliminary injunction be deemed as a voluntary
relinquishment of petitioner’s principal prayer. The non-issuance of such injunctive relief
only means that the appellate court did not preliminarily find any exception22 to the long-
standing doctrine that injunction will not lie to enjoin a criminal prosecution.23 Consequently,
the trial of the case took its course.

The petition is now moot, however, in view of the trial court’s rendition of judgment.

A moot and academic case is one that ceases to present a justiciable controversy by virtue
of supervening events, so that a declaration thereon would be of no practical use or value.24

The judgment convicting petitioner of homicide under the Amended Information for murder
operates as a supervening event that mooted the present petition. Assuming that there is
ground25 to annul the finding of probable cause for murder, there is no practical use or value
in abrogating the concluded proceedings and retrying the case under the original
Information for homicide just to arrive, more likely or even definitely, at the same
conviction of homicide. Mootness would have also set in had petitioner been convicted of
murder, for proof beyond reasonable doubt, which is much higher than probable cause,
would have been established in that instance.
Instead, however, of denying the petition outright on the ground of mootness, the Court
proceeds to resolve the legal issues in order to formulate controlling principles to guide the
bench, bar and public.26 In the present case, there is compelling reason to clarify the
remedies available before and after the filing of an information in cases subject of inquest.

After going over into the substance of the petition and the assailed issuances, the Court
finds no reversible error on the part of the appellate court in finding no grave abuse of
discretion in the issuance of the four trial court Orders.

In his first assignment of error, petitioner posits that the prosecution has no right under the
Rules to seek from the trial court an investigation or reevaluation of the case except
through a petition for review before the Department of Justice (DOJ). In cases when an
accused is arrested without a warrant, petitioner contends that the remedy of preliminary
investigation belongs only to the accused.

The contention lacks merit.

Section 6,27 Rule 112 of the Rules of Court reads:

When a person is lawfully arrested without a warrant involving an offense which requires a
preliminary investigation, the complaint or information may be filed by a prosecutor without
need of such investigation provided an inquest has been conducted in accordance with
existing rules. In the absence or unavailability of an inquest prosecutor, the complaint may
be filed by the offended party or a peace officer directly with the proper court on the basis
of the affidavit of the offended party or arresting officer or person.

Before the complaint or information is filed, the person arrested may ask for a preliminary
investigation in accordance with this Rule, but he must sign a waiver of the provisions of
Article 125 of the Revised Penal Code, as amended, in the presence of his counsel.
Notwithstanding the waiver, he may apply for bail and the investigation must be terminated
within fifteen (15) days from its inception.

After the filing of the complaint or information in court without a preliminary

investigation, the accused may, within five (5) days from the time he learns of its filing, ask
for a preliminary investigation with the same right to adduce evidence in his defense as
provided in this Rule. (underscoring supplied)

A preliminary investigation is required before the filing of a complaint or information for an

offense where the penalty prescribed by law is at least four years, two months and one day
without regard to fine.28 As an exception, the rules provide that there is no need for a
preliminary investigation in cases of a lawful arrest without a warrant29 involving such type
of offense, so long as an inquest, where available, has been conducted.30

Inquest is defined as an informal and summary investigation conducted by a public

prosecutor in criminal cases involving persons arrested and detained without the benefit of a
warrant of arrest issued by the court for the purpose of determining whether said persons
should remain under custody and correspondingly be charged in court.31

It is imperative to first take a closer look at the predicament of both the arrested person
and the private complainant during the brief period of inquest, to grasp the respective
remedies available to them before and after the filing of a complaint or information in court.
BEFORE THE FILING OF COMPLAINT OR INFORMATION IN COURT, the private complainant
may proceed in coordinating with the arresting officer and the inquest officer during the
latter’s conduct of inquest. Meanwhile, the arrested person has the option to avail of a 15-
day preliminary investigation, provided he duly signs a waiver of any objection against delay
in his delivery to the proper judicial authorities under Article 125 of the Revised Penal Code.
For obvious reasons, this remedy is not available to the private complainant since he cannot
waive what he does not have. The benefit of the provisions of Article 125, which requires
the filing of a complaint or information with the proper judicial authorities within the
applicable period,32 belongs to the arrested person.

The accelerated process of inquest, owing to its summary nature and the attendant risk of
running against Article 125, ends with either the prompt filing of an information in court or
the immediate release of the arrested person.33 Notably, the rules on inquest do not provide
for a motion for reconsideration.34

Contrary to petitioner’s position that private complainant should have appealed to the DOJ
Secretary, such remedy is not immediately available in cases subject of inquest.

Noteworthy is the proviso that the appeal to the DOJ Secretary is by "petition by a proper
party under such rules as the Department of Justice may prescribe." 35 The rule referred to is
the 2000 National Prosecution Service Rule on Appeal, 36 Section 1 of which provides that the
Rule shall "apply to appeals from resolutions x x x in cases subject of preliminary
investigation/ reinvestigation." In cases subject of inquest, therefore, the private party
should first avail of a preliminary investigation or reinvestigation, if any, before elevating
the matter to the DOJ Secretary.

In case the inquest proceedings yield no probable cause, the private complainant may
pursue the case through the regular course of a preliminary investigation.

ONCE A COMPLAINT OR INFORMATION IS FILED IN COURT, the rules yet provide the
accused with another opportunity to ask for a preliminary investigation within five days from
the time he learns of its filing. The Rules of Court and the New Rules on Inquest are silent,
however, on whether the private complainant could invoke, as respondent heirs of the
victim did in the present case, a similar right to ask for a reinvestigation.

The Court holds that the private complainant can move for reinvestigation, subject to and in
light of the ensuing disquisition.

All criminal actions commenced by a complaint or information shall be prosecuted under the
direction and control of the public prosecutor.37 The private complainant in a criminal case is
merely a witness and not a party to the case and cannot, by himself, ask for the
reinvestigation of the case after the information had been filed in court, the proper party for
that being the public prosecutor who has the control of the prosecution of the case.38 Thus,
in cases where the private complainant is allowed to intervene by counsel in the criminal
action,39 and is granted the authority to prosecute, 40 the private complainant, by counsel
and with the conformity of the public prosecutor, can file a motion for reinvestigation.

In fact, the DOJ instructs that before the arraignment of the accused, trial prosecutors must
"examine the Information vis-à-vis the resolution of the investigating prosecutor in order to
make the necessary corrections or revisions and to ensure that the information is sufficient
in form and substance."41
x x x Since no evidence has been presented at that stage, the error would appear or be
discoverable from a review of the records of the preliminary investigation. Of course, that
fact may be perceived by the trial judge himself but, again, realistically it will be the
prosecutor who can initially determine the same. That is why such error need not be
manifest or evident, nor is it required that such nuances as offenses includible in the offense
charged be taken into account. It necessarily follows, therefore, that the prosecutor can
and should institute remedial measures[.]42 (emphasis and underscoring supplied)

The prosecution of crimes appertains to the executive department of the government whose
principal power and responsibility is to see that our laws are faithfully executed. A necessary
component of this power to execute our laws is the right to prosecute their violators. The
right to prosecute vests the prosecutor with a wide range of discretion – the discretion of
what and whom to charge, the exercise of which depends on a smorgasbord of factors
which are best appreciated by prosecutors.43

The prosecution’s discretion is not boundless or infinite, however.44 The standing principle is

that once an information is filed in court, any remedial measure such as a reinvestigation
must be addressed to the sound discretion of the court. Interestingly, petitioner supports
this view.45 Indeed, the Court ruled in one case that:

The rule is now well settled that once a complaint or information is filed in court, any
disposition of the case, whether as to its dismissal or the conviction or the acquittal of the
accused, rests in the sound discretion of the court. Although the prosecutor retains the
direction and control of the prosecution of criminal cases even when the case is already in
court, he cannot impose his opinion upon the tribunal. For while it is true that the
prosecutor has the quasi-judicial discretion to determine whether or not a criminal case
should be filed in court, once the case had already been brought therein any disposition the
prosecutor may deem proper thereafter

should be addressed to the court for its consideration and approval. The only qualification is
that the action of the court must not impair the substantial rights of the accused or the right
of the People to due process of law.

xxxx

In such an instance, before a re-investigation of the case may be conducted by the public

prosecutor, the permission or consent of the court must be secured. If after such re-
investigation the prosecution finds a cogent basis to withdraw the information or otherwise
cause the dismissal of the case, such proposed course of action may be taken but shall
likewise be addressed to the sound discretion of the court.46 (underscoring supplied)

While Abugotal v. Judge Tiro47 held that to ferret out the truth, a trial is to be preferred to a
reinvestigation, the Court therein recognized that a trial court may, where the interest of
justice so requires, grant a motion for reinvestigation of a criminal case pending before it.

Once the trial court grants the prosecution’s motion for reinvestigation, the former is
deemed to have deferred to the authority of the prosecutorial arm of the Government.
Having brought the case back to the drawing board, the prosecution is thus equipped with
discretion – wide and far reaching – regarding the disposition thereof, 48 subject to the trial
court’s approval of the resulting proposed course of action.
Since a reinvestigation may entail a modification of the criminal information as what
happened in the present case, the Court’s holding is bolstered by the rule on amendment of
an information under Section 14, Rule 110 of the Rules of Court:

A complaint or information may be amended, in form or in substance, without

leave of court, at any time before the accused enters his plea. After the plea and
during the trial, a formal amendment may only be made with leave of court and when it can
be done without causing prejudice to the rights of the accused.

However, any amendment before plea, which downgrades the nature of the offense charged
in or excludes any accused from the complaint or information, can be made only upon
motion by the prosecutor, with notice to the offended party and with leave of court. The
court shall state its reasons in resolving the motion and copies of its order shall be furnished
all parties, especially the offended party.

If it appears at any time before judgment that a mistake has been made in charging the
proper offense, the court shall dismiss the original complaint or information upon the filing
of a new one charging the proper offense in accordance with section 11, Rule 119, provided
the accused would not be placed in double jeopardy. The court may require the witnesses to
give bail for their appearance at the trial. (emphasis supplied)

In fine, before the accused enters a plea, a formal or substantial amendment of the
complaint or information may be made without leave of court.49 After the entry of a plea,
only a formal amendment may be made but with leave of court and only if it does not
prejudice the rights of the accused. After arraignment, a substantial amendment is
proscribed except if the same is beneficial to the accused.50

It must be clarified though that not all defects in an information are curable by amendment
prior to entry of plea. An information which is void ab initio cannot be amended to obviate a
ground for quashal.51 An amendment which operates to vest jurisdiction upon the trial court
is likewise impermissible.52

Considering the general rule that an information may be amended even in substance and
even without leave of court at any time before entry of plea, does it mean that the conduct
of a reinvestigation at that stage is a mere superfluity?

It is not.

Any remedial measure springing from the reinvestigation – be it a complete disposition or

an intermediate modification53 of the charge – is eventually addressed to the sound
discretion of the trial court, which must make an independent evaluation or assessment of
the merits of the case. Since the trial court would ultimately make the determination on the
proposed course of action, it is for the prosecution to consider whether a reinvestigation is
necessary to adduce and review the evidence for purposes of buttressing the appropriate
motion to be filed in court.

More importantly, reinvestigation is required in cases involving a substantial amendment of

the information. Due process of law demands that no substantial amendment of an
information may be admitted without conducting another or a new preliminary investigation.
In Matalam v. The 2nd Division of the Sandiganbayan, 54 the Court ruled that a substantial
amendment in an information entitles an accused to another preliminary investigation,
unless the amended information contains a charge related to or is included in the original
Information.

The question to be resolved is whether the amendment of the Information from homicide to
murder is considered a substantial amendment, which would make it not just a right but a
duty of the prosecution to ask for a preliminary investigation.

The Court answers in the affirmative.

A substantial amendment consists of the recital of facts constituting the offense

charged and determinative of the jurisdiction of the court. All other matters are
merely of form. The following have been held to be mere formal amendments: (1) new
allegations which relate only to the range of the penalty that the court might impose in the
event of conviction; (2) an amendment which does not charge another offense different or
distinct from that charged in the original one; (3) additional allegations which do not alter
the prosecution’s theory of the case so as to cause surprise to the accused and affect the
form of defense he has or will assume; (4) an amendment which does not adversely affect
any substantial right of the accused; and (5) an amendment that merely adds specifications
to eliminate vagueness in the information and not to introduce new and material facts, and
merely states with additional precision something which is already contained in the original
information and which adds nothing essential for conviction for the crime charged.

The test as to whether a defendant is prejudiced by the amendment is whether a defense

under the information as it originally stood would be available after the amendment is
made, and whether any evidence defendant might have would be equally applicable to the
information in the one form as in the other. An amendment to an information which does
not change the nature of the crime alleged therein does not affect the essence of the
offense or cause surprise or deprive the accused of an opportunity to meet the new
averment had each been held to be one of form and not of substance. 55 (emphasis and
underscoring supplied)

Matalam adds that the mere fact that the two charges are related does not necessarily or
automatically deprive the accused of his right to another preliminary investigation. Notatu
dignum is the fact that both the original Information and the amended Information
in Matalam were similarly charging the accused with violation of Section 3(e) of the Anti-
Graft and Corrupt Practices Act.

In one case,56 it was squarely held that the amendment of the Information from homicide to
murder is "one of substance with very serious consequences."57 The amendment involved in
the present case consists of additional averments of the circumstances of treachery, evident
premeditation, and cruelty, which qualify the offense charged from homicide to murder. It
being a new and material element of the offense, petitioner should be given the chance to
adduce evidence on the matter. Not being merely clarificatory, the amendment essentially
varies the prosecution’s original theory of the case and certainly affects not just the form
but the weight of defense to be mustered by petitioner.

The Court distinguishes the factual milieus in Buhat v. CA58 and Pacoy v. Cajigal,59 wherein

the amendment of the caption of the Information from homicide to murder was not
considered substantial because there was no real change in the recital of facts constituting
the offense charged as alleged in the body of the Information, as the allegations of
qualifying circumstances were already clearly embedded in the original
Information. Buhat pointed out that the original Information for homicide already alleged
the use of superior strength, while Pacoy states that the averments in the amended
Information for murder are exactly the same as those already alleged in the original
Information for homicide. None of these peculiar circumstances obtains in the present case.

Considering that another or a new preliminary investigation is required, the fact that what
was conducted in the present case was a reinvestigation does not invalidate the substantial
amendment of the Information. There is no substantial distinction between a preliminary
investigation and a reinvestigation since both are conducted in the same manner and for
the same objective of determining whether there exists sufficient ground to engender a
well-founded belief that a crime has been committed and the respondent is probably guilty
thereof and should be held for trial.60 What is essential is that petitioner was placed on
guard to defend himself from the charge of murder61 after the claimed circumstances were
made known to him as early as the first motion.

Petitioner did not, however, make much of the opportunity to present countervailing
evidence on the proposed amended charge. Despite notice of hearing, petitioner opted to
merely observe the proceedings and declined to actively participate, even with extreme
caution, in the reinvestigation. Mercado v. Court of Appeals states that the rules do not
even require, as a condition sine qua non to the validity of a preliminary investigation, the
presence of the respondent as long as efforts to reach him were made and an opportunity to
controvert the complainant’s evidence was accorded him.62

In his second assignment of error, petitioner basically assails the hurried issuance of the last
two assailed RTC Orders despite the pendency before the appellate court of the petition for
certiorari challenging the first two trial court Orders allowing a reinvestigation.

The Rules categorically state that the petition shall not interrupt the course of the principal
case unless a temporary retraining order or a writ of preliminary injunction has been
issued.63 The appellate court, by Resolution of February 15, 2007,64 denied petitioner’s
application for a temporary restraining order and writ of preliminary injunction.
Supplementary efforts to seek injunctive reliefs proved futile.65 The appellate court thus did
not err in finding no grave abuse of discretion on the part of the trial court when it
proceeded with the case and eventually arraigned the accused on March 21, 2007, there
being no injunction order from the appellate court. Moreover, petitioner opted to forego
appealing to the DOJ Secretary, a post-inquest remedy that was available after the
reinvestigation and which could have suspended the arraignment.661avvphi1

Regarding petitioner’s protestations of haste, suffice to state that the pace in resolving
incidents of the case is not per se an indication of bias. In Santos-Concio v. Department of
Justice,67 the Court held:

Speed in the conduct of proceedings by a judicial or quasi-judicial officer cannot per se be

instantly attributed to an injudicious performance of functions. For one’s prompt dispatch
may be another’s undue haste. The orderly administration of justice remains as the
paramount and constant consideration, with particular regard of the circumstances peculiar
to each case.

The presumption of regularity includes the public officer’s official actuations in all phases of
work. Consistent with such presumption, it was incumbent upon petitioners to present
contradictory evidence other than a mere tallying of days or numerical calculation. This,
petitioners failed to discharge. The swift completion of the Investigating Panel’s initial task
cannot be relegated as shoddy or shady without discounting the presumably regular
performance of not just one but five state prosecutors.68

There is no ground for petitioner’s protestations against the DOJ Secretary’s sudden
designation of Senior State Prosecutor Emmanuel Velasco as Acting City Prosecutor of
Makati City for the present case69 and the latter’s conformity to the motion for
reinvestigation.

In granting the reinvestigation, Judge Alameda cannot choose the public prosecutor who will
conduct the reinvestigation or preliminary investigation. 70 There is a hierarchy of officials in
the prosecutory arm of the executive branch headed by the Secretary of Justice71 who is
vested with the prerogative to appoint a special prosecutor or designate an acting
prosecutor to handle a particular case, which broad power of control has been recognized by
jurisprudence.72

As for the trial court’s ignoring the DOJ Secretary’s uncontested statements to the media
which aired his opinion that if the assailant merely intended to maim and not to kill the
victim, one bullet would have sufficed — the DOJ Secretary reportedly uttered that "the
filing of the case of homicide against ano against Leviste lintek naman eh I told you to
watch over that case… there should be a report about the ballistics, about the paraffin, etc.,
then that’s not a complete investigation, that’s why you should use that as a ground" — no
abuse of discretion, much less a grave one, can be imputed to it.

The statements of the DOJ Secretary do not evince a "determination to file the Information
even in the absence of probable cause." 73 On the contrary, the remarks merely underscored
the importance of securing basic investigative reports to support a finding of probable
cause. The original Resolution even recognized that probable cause for the crime of murder
cannot be determined based on the evidence obtained "[u]nless and until a more thorough
investigation is conducted and eyewitness/es [is/]are presented in evidence[.]"74

The trial court concluded that "the wound sustained by the victim at the back of his head,
the absence of paraffin test and ballistic examination, and the handling of physical
evidence,"75 as rationalized by the prosecution in its motion, are sufficient circumstances
that require further inquiry.

That the evidence of guilt was not strong as subsequently assessed in the bail hearings does
not affect the prior determination of probable cause because, as the appellate court
correctly stated, the standard of strong evidence of guilt which is sufficient to deny bail to
an accused is markedly higher than the standard of judicial probable cause which is
sufficient to initiate a criminal case.76

In his third assignment of error, petitioner faults the trial court for not conducting, at the
very least, a hearing for judicial determination of probable cause, considering the lack of
substantial or material new evidence adduced during the reinvestigation.

Petitioner’s argument is specious.

There are two kinds of determination of probable cause: executive and judicial. The
executive determination of probable cause is one made during preliminary investigation. It
is a function that properly pertains to the public prosecutor who is given a broad discretion
to determine whether probable cause exists and to charge those whom he believes to have
committed the crime as defined by law and thus should be held for trial. Otherwise stated,
such official has the quasi-judicial authority to determine whether or not a criminal case
must be filed in court. Whether that function has been correctly discharged by the public
prosecutor, i.e., whether he has made a correct ascertainment of the existence of probable
cause in a case, is a matter that the trial court itself does not and may not be compelled to
pass upon.77

The judicial determination of probable cause is one made by the judge to ascertain whether
a warrant of arrest should be issued against the accused. The judge must satisfy himself
that based on the evidence submitted, there is necessity for placing the accused under
custody in order not to frustrate the ends of justice. If the judge finds no probable cause,
the judge cannot be forced to issue the arrest warrant.78 Paragraph (a), Section 5,79 Rule
112 of the Rules of Court outlines the procedure to be followed by the RTC.

To move the court to conduct a judicial determination of probable cause is a mere

superfluity, for with or without such motion, the judge is duty-bound to personally evaluate
the resolution of the public prosecutor and the supporting evidence. In fact, the task of the
presiding judge when the Information is filed with the court is first and foremost to
determine the existence or non-existence of probable cause for the arrest of the accused.80

What the Constitution underscores is the exclusive and personal responsibility of the issuing
judge to satisfy himself of the existence of probable cause. But the judge is not required
to personally examine the complainant and his witnesses. Following established
doctrine and procedure, he shall (1) personally evaluate the report and the supporting
documents submitted by the prosecutor regarding the existence of probable cause, and on
the basis thereof, he may already make a personal determination of the existence of
probable cause; and (2) if he is not satisfied that probable cause exists, he may disregard
the prosecutor’s report and require the submission of supporting affidavits of witnesses to
aid him in arriving at a conclusion as to the existence of probable cause.81 (emphasis and
underscoring supplied)

The rules do not require cases to be set for hearing to determine probable cause for the
issuance of a warrant of arrest of the accused before any warrant may be
issued.82 Petitioner thus cannot, as a matter of right, insist on a hearing for judicial
determination of probable cause. Certainly, petitioner "cannot determine beforehand how
cursory or exhaustive the [judge's] examination of the records should be [since t]he extent
of the judge’s examination depends on the exercise of his sound discretion as the
circumstances of the case require."83 In one case, the Court emphatically stated:

The periods provided in the Revised Rules of Criminal Procedure are mandatory, and as
such, the judge must determine the presence or absence of probable cause within such
periods. The Sandiganbayan’s determination of probable cause is made ex parte and
is summary in nature, not adversarial. The Judge should not be stymied and distracted
from his determination of probable cause by needless motions for determination
of probable cause filed by the accused.84 (emphasis and underscoring supplied)

Petitioner proceeds to discuss at length evidentiary matters, arguing that no circumstances

exist that would qualify the crime from homicide to murder.

The allegation of lack of substantial or material new evidence deserves no credence,

because new pieces of evidence are not prerequisites for a valid conduct of reinvestigation.
It is not material that no new matter or evidence was presented during the reinvestigation
of the case. It should be stressed that reinvestigation, as the word itself implies, is merely a
repeat investigation of the case. New matters or evidence are not prerequisites for a
reinvestigation, which is simply a chance for the prosecutor to review and re-evaluate its
findings and the evidence already submitted.85

Moreover, under Rule 45 of the Rules of Court, only questions of law may be raised in, and
be subject of, a petition for review on certiorari since this Court is not a trier of facts. The
Court cannot thus review the evidence adduced by the parties on the issue of the absence
or presence of probable cause, as there exists no exceptional circumstances to warrant a
factual review.86

In a petition for certiorari, like that filed by petitioner before the appellate court, the
jurisdiction of the court is narrow in scope. It is limited to resolving only errors of
jurisdiction.1avvphi1 It is not to stray at will and resolve questions and issues beyond its
competence, such as an error of judgment.87 The court’s duty in the pertinent case is
confined to determining whether the executive and judicial determination of probable cause
was done without or in excess of jurisdiction or with grave abuse of discretion. Although it is
possible that error may be committed in the discharge of lawful functions, this does not
render the act amenable to correction and annulment by the extraordinary remedy of
certiorari, absent any showing of grave abuse of discretion amounting to excess of
jurisdiction.88

WHEREFORE, the petition is DENIED. The assailed Decision and Resolution of the Court of
Appeals in CA-G.R. SP No. 97761 are AFFIRMED.

SO ORDERED.
 G.R. No. 197522               September 11, 2013

ELISEO V. AGUILAR, Petitioner,
vs.
DEPARTMENT OF JUSTICE, PO1 LEO T. DANGUPON, 1ST LT. PHILIP FORTUNO, CPL.
EDILBERTO ABORDO, SPO3 GREGARDRO A. VILLAR, SPO1 RAMON M. LARA, SPO1
ALEX L. ACAYLAR, and PO1 JOVANNIE C. BALICOL, Respondents.

PER CURIAM:

Assailed in this petition for review on certiorari1 is the Decision2 dated June 30, 2011 of the
Court of Appeals (CA) in CA-G.R. SP No. 110110 which affirmed the Resolution 3 dated
November 27, 2008 of the Department of Justice (DOJ) in I.S. No. 2002-414, upholding the
provincial prosecutor’s dismissal of the criminal complaint for murder filed by petitioner
Eliseo V. Aguilar against respondents.

The Facts

Petitioner is the father of one Francisco M. Aguilar, alias Tetet (Tetet). On April 10, 2002, he
filed a criminal complaint4 for murder against the members of a joint team of police and
military personnel who purportedly arrested Tetet and later inflicted injuries upon him,
resulting to his death. The persons charged to be responsible for Tetet’s killing were
members of the Sablayan Occidental Mindoro Police Force, identified as respondents SPO3
Gregardro A. Villar (Villar), SPO1 Ramon M. Lara (Lara), SPO1 Alex L. Acaylar (Acaylar),
PO1 Leo T. Dangupon (Dangupon), and PO1 Jovannie C. Balicol (Balicol), and members of
the Philippine Army, namely, respondents 1st Lt. Philip Fortuno5 (Fortuno) and Cpl. Edilberto
Abordo (Abordo).6

In the petitioner’s complaint, he averred that on February 1, 2002, between 9:00 and 10:00
in the morning, at Sitio Talipapa, Brgy. Pag-asa, Sablayan, Occidental Mindoro (Sitio
Talipapa), Tetet was arrested by respondents for alleged acts of extortion and on the
suspicion that he was a member of the Communist Party of the Philippines/National People’s
Army Revolutionary Movement. Despite his peaceful surrender, he was maltreated by
respondents. In particular, Tetet was hit on different parts of the body with the butts of
their rifles, and his hands were tied behind his back with a black electric wire. He was then
boarded on a military jeep and brought to the Viga River where he was gunned down by
respondents.7 Petitioner’s complaint was corroborated by witnesses Adelaida Samillano and
Rolando Corcotchea who stated, among others, that they saw Tetet raise his hands asa sign
of surrender but was still mauled by armed persons. 8 A certain Dr. Neil Bryan V. Gamilla
(Dr. Gamilla) of the San Sebastian District Hospital issued a medical certificate dated
February 1, 2002,9 indicating that Tetet was found to have sustained two lacerated wounds
at the frontal area, a linear abrasion in the anterior chest and five gunshot wounds in
different parts of his body.10

In defense, respondents posited that on February 1, 2002, they were engaged in an

operation – headed by Chief of Police Marcos Barte (Barte)and Fortuno – organized to
entrap a suspected extortionist (later identified as Tetet) who was allegedly demanding
money from a businesswoman named Estelita Macaraig (Macaraig). For this purpose, they
devised a plan to apprehend Tetet at Sitio Talipapa which was the place designated in his
extortion letters to Macaraig. At about 11:00 in the morning of that same day, Tetet was
collared by Sgt. Ferdinand S. Hermoso (Hermoso) while in the act of receiving money from
Macaraig’s driver, Arnold Magalong. Afterwards, shouts were heard from onlookers that two
persons, who were supposed to be Tetet’s companions, ran towards the mountains. Some
members of the team chased them but they were left uncaught. Meanwhile, Tetet was
handcuffed and boarded on a military jeep. Accompanying the latter were Dangupon,
Fortuno, Abordo, Barte, and some other members of the Philippine Army (first group). On
the other hand, Villar, Lara, Acaylar, and Balicol were left behind at Sitio Talipapa with the
instruction to pursue Tetet’s two companions. As the first group was passing along the Viga
River, Tetet blurted out to the operatives that he would point out to the police where his
companions were hiding. Barte stopped the jeep and ordered his men to return to Sitio
Talipapa but, while the driver was steering the jeep back, Tetet pulled a hand grenade
clutched at the bandolier of Abordo, jumped out of the jeep and, from the ground, turned
on his captors by moving to pull the safety pin off of the grenade. Sensing that they were in
danger, Dangupon fired upon Tetet, hitting him four times in the body. The first group
brought Tetet to the San Sebastian District Hospital for treatment but he was pronounced
dead on arrival.11

Among others, the Commission on Human Rights investigated Tetet’s death and thereafter
issued a Final Investigation Report12 dated October 3, 2002 and Resolution 13 dated October
8, 2002, recommending that the case, i.e., CHR CASE NR. IV-02-0289, "be closed for lack
of sufficient evidence." It found that Tetet’s shooter, Dangupon, only shot him in self-
defense and added that "Dangupon enjoys the presumption of innocence and regularity in
the performance of his official duties, which were not sufficiently rebutted in the instant
case."14

Likewise, the Office of the Provincial Director of the Occidental Mindoro Police Provincial
Command conducted its independent inquiry on the matter and, in a Report dated
September 21, 2002, similarly recommended the dismissal of the charges against
respondents. Based on its investigation, it concluded that respondents conducted a
legitimate entrapment operation and that the killing of Tetet was made in self-defense
and/or defense of a stranger.15

The Provincial Prosecutor’s Ruling

In a Resolution16 dated March 10, 2003, 1st Asst. Provincial Prosecutor and Officer-in-
Charge Levitico B. Salcedo of the Office of the Provincial Prosecutor of Occidental Mindoro
(Provincial Prosecutor) dismissed petitioner’s complaint against all respondents for lack of
probable cause. To note, Barte was dropped from the charge, having died in an ambush
pending the investigation of the case.17

The Provincial Prosecutor held that the evidence on record shows that the shooting of Tetet
by Dangupon "was done either in an act of self-defense, defense of a stranger, and in the
performance of a lawful duty or exercise of a right of office."18 He further observed that
petitioner failed to submit any evidence to rebut Dangupon’s claim regarding the
circumstances surrounding Tetet’s killing.19

In the same vein, the Provincial Prosecutor ruled that Villar, Acaylar,Lara, and Balicol could
not be faulted for Tetet’s death as they were left behind in Sitio Talipapa unaware of what
transpired at the Viga River. As to the alleged maltreatment of Tetet after his arrest, the
Provincial Prosecutor found that these respondents were not specifically pointed out as the
same persons who mauled the former. He added that Hermoso was, in fact, the one who
grabbed/collared Tetet during his apprehension. The Provincial Prosecutor similarly absolved
Fortuno and Abordo since they were found to have only been in passive stance. 20 Aggrieved,
petitioner elevated the matter via a petition for review21 to the DOJ.

The DOJ Ruling

In a Resolution22 dated November 27, 2008, the DOJ dismissed petitioner’s appeal and
thereby, affirmed the Provincial Prosecutor’s ruling. It ruled that petitioner failed to show
that respondents conspired to kill/murder Tetet. In particular, it was not established that
Villar, Lara, Acaylar, and Balicol were with Tetet at the time he was gunned down and, as
such, they could not have had any knowledge, much more any responsibility, for what
transpired at the Viga River.23 Neither were Barte, Fortuno, and Abordo found to have
conspired with Dangupon to kill Tetet since their presence at the time Tetet was shot does
not support a conclusion that they had a common design or purpose in killing him. 24 With
respect to Dangupon, the DOJ held that no criminal responsibility may be attached to him
since his act was made in the fulfillment of a duty or in the lawful exercise of an office under
Article 11(5) of the Revised Penal Code25 (RPC).26 Lastly, the DOJ stated that petitioner’s
suppositions and conjectures that respondents salvaged his son are insufficient to overturn
the presumption of innocence in respondents’ favor.27

Unperturbed, petitioner filed a petition for certiorari28 with the CA.

The CA Ruling

In a Decision29 dated June 30, 2011, the CA dismissed petitioner’s certiorari petition, finding
no grave abuse of discretion on the part of the DOJ in sustaining the Provincial Prosecutor’s
ruling. It found no evidence to show that Tetet was deliberately executed by respondents.
Also, it echoed the DOJ’s observations on respondents’ presumption of innocence.30

Hence, this petition.

The Issue Before the Court

Petitioner builds up a case of extralegal killing and seeks that the Court resolve the issue as
to whether or not the CA erred in finding that the DOJ did not gravely abuse its discretion in
upholding the dismissal of petitioner’s complaint against respondents.

The Court’s Ruling

The petition is partly granted.

At the outset, it is observed that the Provincial Prosecutor’s ruling, as affirmed on appeal by
the DOJ and, in turn, upheld on certiorari by the CA, may be dissected into three separate
disquisitions: first , the lack of probable cause on the part of Dangupon, who despite having
admitted killing the victim, was exculpated of the murder charge against him on account of
his interposition of the justifying circumstances of self-defense/defense of a stranger and
fulfillment of a duty or lawful exercise of a right of an office under Article 11(5) of the RPC;
second , the lack of probable cause on the part of Fortuno and Abordo who, despite their
presence during the killing of Tetet, were found to have no direct participation or have not
acted in conspiracy with Dangupon in Tetet’s killing; and third , the lack of probable cause
on the part of Villar, Lara, Acaylar, and Balicol in view of their absence during the said
incident. For better elucidation, the Court deems it apt to first lay down the general
principles which go into its review process of a public prosecutor’s probable cause finding,
and thereafter apply these principles to each of the above-mentioned incidents in seriatim.

A. General principles; judicial

review of a prosecutor’s
probable cause determination.

A public prosecutor’s determination of probable cause – that is, one made for the purpose of
filing an information in court – is essentially an executive function and, therefore, generally
lies beyond the pale of judicial scrutiny. The exception to this rule is when such
determination is tainted with grave abuse of discretion and perforce becomes correctible
through the extraordinary writ of certiorari . It is fundamental that the concept of grave
abuse of discretion transcends mere judgmental error as it properly pertains to a
jurisdictional aberration. While defying precise definition, grave abuse of discretion generally
refers to a "capricious or whimsical exercise of judgment as is equivalent to lack of
jurisdiction." Corollary, the abuse of discretion must be patent and gross so as to amount to
an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, or to act
at all in contemplation of law.31 To note, the underlying principle behind the courts’ power to
review a public prosecutor’s determination of probable cause is to ensure that the latter acts
within the permissible bounds of his authority or does not gravely abuse the same. This
manner of judicial review is a constitutionally-enshrined form of check and balance which
underpins the very core of our system of government. As aptly edified in the recent case of
Alberto v. CA:32

It is well-settled that courts of law are precluded from disturbing the findings of public
prosecutors and the DOJ on the existence or non-existence of probable cause for the
purpose of filing criminal informations, unless such findings are tainted with grave abuse of
discretion, amounting to lack or excess of jurisdiction. The rationale behind the general rule
rests on the principle of separation of powers, dictating that the determination of probable
cause for the purpose of indicting a suspect is properly an executive function; while the
exception hinges on the limiting principle of checks and balances, whereby the judiciary,
through a special civil action of certiorari , has been tasked by the present Constitution " to
determine whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the Government."
(Emphasis supplied; citations omitted)

In the foregoing context, the Court observes that grave abuse of discretion taints a public
prosecutor’s resolution if he arbitrarily disregards the jurisprudential parameters of probable
cause. In particular, case law states that probable cause, for the purpose of filing a criminal
information, exists when the facts are sufficient to engender a well-founded belief that a
crime has been committed and that the respondent is probably guilty thereof. It does not
mean "actual and positive cause" nor does it import absolute certainty. Rather, it is merely
based on opinion and reasonable belief and, as such, 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.33 As pronounced in
Reyes v. Pearl bank Securities, Inc.:34

A finding of probable cause needs only to rest on evidence showing that more likely than
not a crime has been committed by the suspects. It need not be based on clear and
convincing evidence of guilt, not on evidence establishing guilt beyond reasonable doubt,
and definitely not on evidence establishing absolute certainty of guilt. In determining
probable cause, the average man weighs facts and circumstances without resorting to the
calibrations of the rules of evidence of which he has no technical knowledge. He relies on
common sense. What is determined is whether there is sufficient ground to engender a well-
founded belief that a crime has been committed , and that the accused is probably guilty
thereof and should be held for trial. It does not require an inquiry as to whether there is
sufficient evidence to secure a conviction.35 (Emphasis supplied)

Apropos thereto, for the public prosecutor to determine if there exists a well-founded belief
that a crime has been committed, and that the suspect is probably guilty of the same, the
elements of the crime charged should, in all reasonable likelihood, be present. This is based
on the principle that every crime is defined by its elements, without which there should be,
at the most, no criminal offense.36

With these precepts in mind, the Court proceeds to assess the specific incidents in this case.

B. Existence of probable cause on

the part of Dangupon.

Records bear out that Dangupon admitted that he was the one who shot Tetet which
eventually caused the latter’s death. The Provincial Prosecutor, however, relieved him from
indictment based mainly on the finding that the aforesaid act was done either in self-
defense, defense of a stranger or in the performance of a lawful duty or exercise of a right
of office, respectively pursuant to paragraphs 1, 2, and 5, Article 11 37 of the RPC. The DOJ
affirmed the Provincial Prosecutor’s finding, adding further that Dangupon, as well as the
other respondents, enjoys the constitutional presumption of innocence.

These findings are patently and grossly erroneous.

Records bear out facts and circumstances which show that the elements of murder –
namely: (a) that a person was killed; (b) that the accused killed him; (c) that the killing was
attended by any of the qualifying circumstances mentioned in Article 24838 of the RPC; and
(d) that the killing is not parricide or infanticide 39 – are, in all reasonable likelihood, present
in Dangupon’s case. As to the first and second elements, Dangupon himself admitted that
he shot and killed Tetet.1âwphi1 Anent the third element, there lies sufficient basis to
suppose that the qualifying circumstance of treachery attended Tetet’s killing in view of the
undisputed fact that he was restrained by respondents and thereby, rendered
defenseless.40 Finally, with respect to the fourth element, Tetet’s killing can neither be
considered as parricide nor infanticide as the evidence is bereft of any indication that Tetet
is related to Dangupon.

At this juncture, it must be noted that Dangupon’s theories of self-defense/defense of a

stranger and performance of an official duty are not clear and convincing enough to
exculpate him at this stage of the proceedings considering the following circumstances: (a)
petitioner’s version of the facts was corroborated by witnesses Adelaida Samillano and
Rolando Corcotchea who stated, among others, that they saw Tetet raise his hands as a
sign of surrender but was still mauled by armed persons 41 (hence, the presence of unlawful
aggression on the part of Tetet and the lack of any sufficient provocation on the part of
Dangupon,42 the actual motive of Tetet’s companions, 43 and the lawfulness of the act44 are
put into question);(b) it was determined that Tetet was handcuffed45 when he was boarded
on the military jeep (hence, the supposition that Tetet was actually restrained of his
movement begs the questions as to how he could have, in this state, possibly stole the
grenade from Abordo); and (c) petitioner’s evidence show that Tetet suffered from
lacerations and multiple gunshot wounds,46 the shots causing which having been fired at a
close distance47 (hence, the reasonable necessity of the means employed to prevent or
repel48 Tetet’s supposed unlawful aggression, and whether the injury committed be the
necessary consequence of the due performance of such duty or the lawful exercise of such
right49 are, among others, also put into question). Given the foregoing, Dangupon’s
defenses are better off scrutinized within the confines of a criminal trial.

To add, neither can the dismissal of the murder charge against Dangupon be sustained in
view of his presumption of innocence. Jurisprudence holds that when the accused admits
killing the victim, but invokes a justifying circumstance, the constitutional presumption of
innocence is effectively waived and the burden of proving the existence of such
circumstance shifts to the accused.50 The rule regarding an accused’s admission of the
victim’s killing has been articulated in Ortega v. Sandiganbayan, to wit:51

Well settled is the rule that where the accused had admitted that he is the author of the
death of the victim and his defense anchored on self-defense, it is incumbent upon him to
prove this justifying circumstance to the satisfaction of the court. To do so, he must rely on
the strength of his own evidence and not on the weakness of the prosecution, for the
accused himself had admitted the killing. The burden is upon the accused to prove clearly
and sufficiently the elements of self-defense, being an affirmative allegation, otherwise the
conviction of the accused is inescapable. 52 (Emphasis and underscoring supplied) Therefore,
due to the ostensible presence of the crime charged and considering that Dangupon’s
theories of self-defense/defense of a stranger and lawful performance of one’s duty and the
argument on presumption of innocence are, under the circumstances, not compelling
enough to over come a finding of probable cause, the Court finds that the DOJ gravely
abused its discretion in dismissing the case against Dangupon. Consequently, the reversal of
the CA ruling with respect to the latter is in order.

C. Existence of probable cause on

the part of Fortuno and
Abordo.

In similar regard, the Court also finds that grave abuse of discretion tainted the dismissal of
the charges of murder against Fortuno and Abordo.

To elucidate, while petitioner has failed to detail the exact participation of Fortuno and
Abordo in the death of Tetet, it must be noted that the peculiar nature of an extralegal
killing negates the former an opportunity to proffer the same. It is of judicial notice that
extralegal killings are ordinarily executed in a clandestine manner, and, as such, its
commission is largely concealed from the public view of any witnesses. Notably, unlike in
rape cases wherein the victim – albeit ravaged in the dark – may choose to testify, and
whose testimony is, in turn, given great weight and credence sufficient enough for a
conviction,53 the victim of an extralegal killing is silenced by death and therefore, the actual
participation of his assailants is hardly disclosed. As these legal realities generally mire
extralegal killing cases, the Court observes that such cases should be resolved with a more
circumspect analysis of the incidental factors surrounding the same, take for instance the
actual or likely presence of the persons charged at the place and time when the killing was
committed, the manner in which the victim was executed (of which the location of the place
and the time in which the killing was done may be taken into consideration), or the
possibility that the victim would have been easily overpowered by his assailants (of which
the superior number of the persons detaining the victim and their ability to wield weapons
may be taken into consideration).
In the present case, the existence of probable cause against Fortuno and Abordo is justified
by the circumstances on record which, if threaded together, would lead a reasonably
discreet and prudent man to believe that they were also probably guilty of the crime
charged. These circumstances are as follows: (a) Fortuno and Abordo were with Dangupon
during the time the latter killed Tetet54 in an undisclosed place along the Viga River;
(b)Tetet was apprehended, taken into custody and boarded on a military jeep by the group
of armed elements of which Fortuno and Abordo belonged to;55 (c) as earlier mentioned,
Tetet was handcuffed56 when he was boarded on the military jeep and, in effect, restrained
of his movement when he supposedly stole the grenade from Abordo; and (d) also, as
previously mentioned, Tetet suffered from lacerations and multiple gunshot wounds,57 and
that the shots causing the same were fired at a close distance.58 Evidently, the confluence of
the above-stated circumstances and legal realities point out to the presence of probable
cause for the crime of murder against Fortuno and Abordo. Hence, the dismissal of the
charges against them was – similar to Dangupon – improper. As such, the CA’s ruling must
also be reversed with respect to Fortuno and Abordo.

D. Lack of probable cause on the

part of Villar, Lara, Acaylar,
and Balicol.

The Court, however, maintains a contrary view with respect to the determination of lack of
probable cause on the part of Villar, Lara, Acaylar and Balicol.

Records are bereft of any showing that the aforementioned respondents – as opposed to
Dangupon, Fortuno, and Abordo – directly participated in the killing of Tetet at the Viga
River. As observed by the DOJ, Villar, Lara, Acaylar, and Balicol were not with Tetet at the
time he was shot; thus, they could not have been responsible for his killing. Neither could
they be said to have acted in conspiracy with the other respondents since it was not
demonstrated how they concurred in or, in any way, participated towards the unified
purpose of consummating the same act. It is well-settled that conspiracy exists when one
concurs with the criminal design of another, indicated by the performance of an overt act
leading to the crime committed.59 Therefore, finding no direct participation or conspiracy on
the part of Villar, Lara, Acaylar, and Balicol, the Court holds that the DOJ did not gravely
abuse its discretion in affirming the Provincial Prosecutor’s dismissal of the charges against
them. In this respect, the CA’s Decision must stand.

As a final word, the Court can only bewail the loss of a family member through the
unfortunate course of an extralegal killing. The historical prevalence of this deplorable
practice has even led to the inception and eventual adoption of the Rules on Amparo 60 to
better protect the sacrosanct right of every person to his life and liberty and not to be
deprived of such without due process of law. Despite the poignancy natural to every case
advanced as an extralegal killing, the Court, as in all courts of law, is mandated to operate
on institutional impartiality – that is, its every ruling, notwithstanding the sensitivity of the
issue involved, must be borne only out of the facts of the case and scrutinized under the
lens of the law. It is pursuant to this overarching principle that the Court has dealt with the
killing of Tetet and partly grants the present petition. In fine, the case against Dangupon,
Fortuno, and Abordo must proceed and stand the muster of a criminal trial. On the other
hand, the dismissal of the charges against Villar,Lara, Acaylar, and Balicol is sustained.

WHEREFORE , the petition is PARTLY GRANTED. The Decision dated June 30, 2011 of the
Court of Appeals in CA-G.R. SP No. 110110 is REVERSED and SET ASIDE . The Resolution
dated March 10, 2003 of the Provincial Prosecutor and the Resolution dated November 27,
2008 of the Department of Justice in I.S. No. 2002-414 are NULLIFIED insofar as
respondents PO1 Leo T. Dangupon, 1st Lt. Philip Fortuno, and Cpl. Edilberto Aborado are
concerned. Accordingly, the Department of Justice is DIRECTED to issue the proper
resolution in order to charge the above-mentioned respondents in accordance with this
Decision. SO ORDERED.
 G.R. No. 101837 February 11, 1992

ROLITO GO y TAMBUNTING, petitioner,
vs.
THE COURT OF APPEALS, THE HON. BENJAMIN V. PELAYO, Presiding Judge, Branch
168, Regional Trial Court, NCJR Pasig, M.M., and PEOPLE OF THE
PHILIPPINES, respondents.

FELICIANO, J.:

According to the findings of the San Juan Police in their Investigation Report, 1 on 2 July
1991, Eldon Maguan was driving his car along Wilson St., San Juan, Metro Manila, heading
towards P. Guevarra St. Petitioner entered Wilson St., where it is a one-way street and
started travelling in the opposite or "wrong" direction. At the corner of Wilson and J. Abad
Santos Sts., petitioner's and Maguan's cars nearly bumped each other. Petitioner alighted
from his car, walked over and shot Maguan inside his car. Petitioner then boarded his car
and left the scene. A security guard at a nearby restaurant was able to take down
petitioner's car plate number. The police arrived shortly thereafter at the scene of the
shooting and there retrieved an empty shell and one round of live ammunition for a 9 mm
caliber pistol. Verification at the Land Transportation Office showed that the car was
registered to one Elsa Ang Go.

The following day, the police returned to the scene of the shooting to find out where the
suspect had come from; they were informed that petitioner had dined at Cravings Bake
Shop shortly before the shooting. The police obtained a facsimile or impression of the credit
card used by petitioner from the cashier of the bake shop. The security guard of the bake
shop was shown a picture of petitioner and he positively identified him as the same person
who had shot Maguan. Having established that the assailant was probably the petitioner,
the police launched a manhunt for petitioner.

On 8 July 1991, petitioner presented himself before the San Juan Police Station to verify
news reports that he was being hunted by the police; he was accompanied by two (2)
lawyers. The police forthwith detained him. An eyewitness to the shooting, who was at the
police station at that time, positively identified petitioner as the gunman. That same day,
the police promptly filed a complaint for frustrated homicide 2 against petitioner with the
Office of the Provincial Prosecutor of Rizal. First Assistant Provincial Prosecutor Dennis Villa
Ignacio ("Prosecutor") informed petitioner, in the presence of his lawyers, that he could
avail himself of his right to preliminary investigation but that he must first sign a waiver of
the provisions of Article 125 of the Revised Penal Code. Petitioner refused to execute any
such waiver.

On 9 July 1991, while the complaint was still with the Prosecutor, and before an information
could be filed in court, the victim, Eldon Maguan, died of his gunshot wound(s).

Accordingly, on 11 July 1991, the Prosecutor, instead of filing an information for frustrated
homicide, filed an information for murder 3 before the Regional Trial Court. No bail was
recommended. At the bottom of the information, the Prosecutor certified that no preliminary
investigation had been conducted because the accused did not execute and sign a waiver of
the provisions of Article 125 of the Revised Penal Code.

In the afternoon of the same day, 11 July 1991, counsel for petitioner filed with the
Prosecutor an omnibus motion for immediate release and proper preliminary
investigation,4 alleging that the warrantless arrest of petitioner was unlawful and that no
preliminary investigation had been conducted before the information was filed. Petitioner
also prayed that he be released on recognizance or on bail. Provincial Prosecutor Mauro
Castro, acting on the omnibus motion, wrote on the last page of the motion itself that he
interposed no objection to petitioner being granted provisional liberty on a cash bond of
P100,000.00.

On 12 July 1991, petitioner filed an urgent ex-parte motion for special raffle 5 in order to

expedite action on the Prosecutor's bail recommendation. The case was raffled to the sala of
respondent Judge, who, on the same date, approved the cash bond 6 posted by petitioner
and ordered his release. 7 Petitioner was in fact released that same day.

On 16 July 1991, the Prosecutor filed with the Regional Trial Court a motion for leave to
conduct preliminary investigation8 and prayed that in the meantime all proceedings in the
court be suspended. He stated that petitioner had filed before the Office of the Provincial
Prosecutor of Rizal an omnibus motion for immediate release and preliminary investigation,
which motion had been granted by Provincial Prosecutor Mauro Castro, who also agreed to
recommend cash bail of P100,000.00. The Prosecutor attached to the motion for leave a
copy of petitioner's omnibus motion of 11 July 1991.

Also on 16 July 1991, the trial court issued an Order 9 granting leave to conduct preliminary
investigation and cancelling the arraignment set for 15 August 1991 until after the
prosecution shall have concluded its preliminary investigation.

On 17 July 1991, however, respondent Judge motu proprio issued an Order, 10 embodying

the following: (1) the 12 July 1991 Order which granted bail was recalled; petitioner was
given 48 hours from receipt of the Order to surrender himself; (2) the 16 July 1991 Order
which granted leave to the prosecutor to conduct preliminary investigation was recalled and
cancelled; (3) petitioner's omnibus motion for immediate release and preliminary
investigation dated 11 July 1991 was treated as a petition for bail and set for hearing on 23
July 1991.

On 19 July 1991, petitioner filed a petition for certiorari, prohibition and mandamus before

the Supreme Court assailing the 17 July 1991 Order, contending that the information was
null and void because no preliminary investigation had been previously conducted, in
violation of his right to due process. Petitioner also moved for suspension of all proceedings
in the case pending resolution by the Supreme Court of his petition; this motion was,
however, denied by respondent Judge.

On 23 July 1991, petitioner surrendered to the police.

By a Resolution dated 24 July 1991, this Court remanded the petition for certiorari,
prohibition and mandamus to the Court of Appeals.

On 16 August 1991, respondent Judge issued an order in open court setting the
arraignment of petitioner on 23 August 1991.

On 19 August 1991, petitioner filed with the Court of Appeals a motion to restrain his
arraignment.
On 23 August 1991, respondent judge issued a Commitment Order directing the Provincial
Warden of Rizal to admit petitioner into his custody at the Rizal Provincial Jail. On the same
date, petitioner was arraigned. In view, however, of his refusal to enter a plea, the trial
court entered for him a plea of not guilty. The Trial court then set the criminal case for
continuous hearings on 19, 24 and 26 September; on 2, 3, 11 and 17 October; and on 7, 8,
14, 15, 21 and 22 November 1991. 11

On 27 August 1991, petitioner filed a petition for habeas corpus 12 in the Court of Appeals.
He alleged that in view of public respondent's failure to join issues in the petition
for certiorari earlier filed by him, after the lapse of more than a month, thus prolonging his
detention, he was entitled to be released on habeas corpus.

On 30 August 1991, the Court of Appeals issued the writ of habeas corpus.  13 The petition
for certiorari, prohibition and mandamus, on the one hand, and the petition for habeas
corpus, upon the other, were subsequently consolidated in the Court of Appeals.

The Court of Appeals, on 2 September 1991, issued a resolution denying petitioner's motion
to restrain his arraignment on the ground that that motion had become moot and academic.

On 19 September 1991, trial of the criminal case commenced and the prosecution
presented its first witness.

On 23 September 1991, the Court of Appeals rendered a consolidated decision 14 dismissing

the two (2) petitions, on the following grounds:

a. Petitioner's warrantless arrest was valid because the offense for which he
was arrested and charged had been "freshly committed." His identity had
been established through investigation. At the time he showed up at the
police station, there had been an existing manhunt for him. During the
confrontation at the San Juan Police Station, one witness positively identified
petitioner as the culprit.

b. Petitioner's act of posting bail constituted waiver of any irregularity

attending his arrest. He waived his right to preliminary investigation by not
invoking it properly and seasonably under the Rules.

c. The trial court did not abuse its discretion when it issued the 17 July 1991
Order because the trial court had the inherent power to amend and control its
processes so as to make them conformable to law and justice.

d. Since there was a valid information for murder against petitioner and a
valid commitment order (issued by the trial judge after petitioner surrendered
to the authorities whereby petitioner was given to the custody of the
Provincial Warden), the petition for habeas corpus could not be granted.

On 3 October 1991, the prosecution presented three (3) more witnesses at the trial.
Counsel for petitioner also filed a "Withdrawal of Appearance" 15 with the trial court, with
petitioner's conformity.
On 4 October 1991, the present Petition for Review on Certiorari was filed. On 14 October
1991, the Court issued a Resolution directing respondent Judge to hold in abeyance the
hearing of the criminal case below until further orders from this Court.

In this Petition for Review, two (2) principal issues need to be addressed: first, whether or
not a lawful warrantless arrest had been effected by the San Juan Police in respect of
petitioner Go; and second, whether petitioner had effectively waived his right to preliminary
investigation. We consider these issues seriatim.

In respect of the first issue, the Solicitor General argues that under the facts of the case,
petitioner had been validly arrested without warrant. Since petitioner's identity as the
gunman who had shot Eldon Maguan on 2 July 1991 had been sufficiently established by
police work, petitioner was validly arrested six (6) days later at the San Juan Police Station.
The Solicitor General invokes Nazareno v. Station Commander, etc., et al., 16 one of the
seven (7) cases consolidated with In the Matter of the Petition for Habeas Corpus of Roberto
Umil, etc., v. Ramos, et al. 17 where a majority of the Court upheld a warrantees arrest as
valid although effected fourteen (14) days after the killing in connection with which
Nazareno had been arrested. Accordingly, in the view of the Solicitor General, the provisions
of Section 7, Rule 112 of the Rules of Court were applicable and because petitioner had
declined to waive the provisions of Article 125 of the Revised Penal Code, the Prosecutor
was legally justified in filing the information for murder even without preliminary
investigation.

On the other hand, petitioner argues that he was not lawfully arrested without warrant
because he went to the police station six (6) days after the shooting which he had allegedly
perpetrated. Thus, petitioner argues, the crime had not been "just committed" at the time
that he was arrested. Moreover, none of the police officers who arrested him had been an
eyewitness to the shooting of Maguan and accordingly none had the "personal knowledge"
required for the lawfulness of a warrantees arrest. Since there had been no lawful
warrantless arrest. Section 7, Rule 112 of the Rules of Court which establishes the only
exception to the right to preliminary investigation, could not apply in respect of petitioner.

The reliance of both petitioner and the Solicitor General upon Umil v. Ramos is, in the
circumstances of this case, misplaced. In Umil v. Ramos, by an eight-to-six vote, the Court
sustained the legality of the warrantless arrests of petitioners made from one (1) to
fourteen days after the actual commission of the offenses, upon the ground that such
offenses constituted "continuing crimes." Those offenses were subversion, membership in
an outlawed organization like the New People's Army, etc. In the instant case, the offense
for which petitioner was arrested was murder, an offense which was obviously commenced
and completed at one definite location in time and space. No one had pretended that the
fatal shooting of Maguan was a "continuing crime."

Secondly, we do not believe that the warrantees "arrest" or detention of petitioner in the
instant case falls within the terms of Section 5 of Rule 113 of the 1985 Rules on Criminal
Procedure which provides as follows:

Sec. 5 Arrest without warrant; when lawful. — A peace officer or a private

person may, without warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is

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

(c) When the person to be arrested is a prisoner who has escaped from a
penal establishment or place where he is serving final judgment or
temporarily confined while his case is pending, or has escaped while being
transferred from one confinement to another.

In cases falling under paragraphs (a) and (b) hereof, the person arrested
without a warrant shall be forthwith delivered to the nearest police station or
jail, and he shall be proceed against in accordance with Rule 112, Section 7.

Petitioner's "arrest" took place six (6) days after the shooting of Maguan. The "arresting"
officers obviously were not present, within the meaning of Section 5(a), at the time
petitioner had allegedly shot Maguan. Neither could the "arrest" effected six (6) days after
the shooting be reasonably regarded as effected "when [the shooting had] in fact just been
committed" within the meaning of Section 5(b). Moreover, none of the "arresting" officers
had any "personal knowledge" of facts indicating that petitioner was the gunman who had
shot Maguan. The information upon which the police acted had been derived from
statements made by alleged eyewitnesses to the shooting — one stated that petitioner was
the gunman; another was able to take down the alleged gunman's car's plate number which
turned out to be registered in petitioner's wife's name. That information did not, however,
constitute "personal knowledge." 18

It is thus clear to the Court that there was no lawful warrantless arrest of petitioner within
the meaning of Section 5 of Rule 113. It is clear too that Section 7 of Rule 112, which
provides:

Sec. 7 When accused lawfully arrested without warrant. — When a person is

lawfully arrested without a warrant for an offense cognizable by the Regional
Trial Court the complaint or information may be filed by the offended party,
peace officer or fiscal without a preliminary investigation having been first
conducted, on the basis of the affidavit of the offended party or arresting
office or person

However, before the filing of such complaint or information, the person

arrested may ask for a preliminary investigation by a proper officer in
accordance with this Rule, but he must sign a waiver of the provisions of
Article 125 of the Revised Penal Code, as amended, with the assistance of a
lawyer and in case of non-availability of a lawyer, a responsible person of his
choice. Notwithstanding such waiver, he may apply for bail as provided in the
corresponding rule and the investigation must be terminated within fifteen
(15) days from its inception.

If the case has been filed in court without a preliminary investigation having
been first conducted, the accused may within five (5) days from the time he
learns of the filing of the information, ask for a preliminary investigation with
the same right to adduce evidence in his favor in the manner prescribed in
this Rule. (Emphasis supplied)
is also not applicable. Indeed, petitioner was not arrested at all. When he walked into San
Juan Police Station, accompanied by two (2) lawyers, he in fact placed himself at the
disposal of the police authorities. He did not state that he was "surrendering" himself, in all
probability to avoid the implication he was admitting that he had slain Eldon Maguan or that
he was otherwise guilty of a crime. When the police filed a complaint for frustrated homicide
with the Prosecutor, the latter should have immediately scheduled a preliminary
investigation to determine whether there was probable cause for charging petitioner in court
for the killing of Eldon Maguan. Instead, as noted earlier, the Prosecutor proceed under the
erroneous supposition that Section 7 of Rule 112 was applicable and required petitioner to
waive the provisions of Article 125 of the Revised Penal Code as a condition for carrying out
a preliminary investigation. This was substantive error, for petitioner was entitled to a
preliminary investigation and that right should have been accorded him without any
conditions. Moreover, since petitioner had not been arrested, with or without a warrant, he
was also entitled to be released forthwith subject only to his appearing at the preliminary
investigation.

Turning to the second issue of whether or not petitioner had waived his right to preliminary
investigation, we note that petitioner had from the very beginning demanded that a
preliminary investigation be conducted. As earlier pointed out, on the same day that the
information for murder was filed with the Regional Trial Court, petitioner filed with the
Prosecutor an omnibus motion for immediate release and preliminary investigation. The
Solicitor General contends that that omnibus motion should have been filed with the trial
court and not with the Prosecutor, and that the petitioner should accordingly be held to
have waived his right to preliminary investigation. We do not believe that waiver of
petitioner's statutory right to preliminary investigation may be predicated on such a slim
basis. The preliminary investigation was to be conducted by the Prosecutor, not by the
Regional Trial Court. It is true that at the time of filing of petitioner's omnibus motion, the
information for murder had already been filed with the Regional Trial Court: it is not clear
from the record whether petitioner was aware of this fact at the time his omnibus motion
was actually filed with the Prosecutor. In Crespo v. Mogul,  19 this Court held:

The preliminary investigation conducted by the fiscal for the purpose of

determining whether a prima facie case exists to warranting the prosecution
of the accused is terminated upon the filing of the information in the proper
court. In turn, as above stated, the filing of said information sets in motion
the criminal action against the accused in Court. Should the fiscal find it
proper to conduct a reinvestigation of the case, at such stage, the permission
of the Court must be secured. After such reinvestigation the finding and
recommendations of the fiscal should be submitted to the Court for
appropriate action. While it is true that the fiscal has the quasi-
judicial discretion to determine whether or not a criminal case should be filed
in court or not, once the case had already been brought to Court whatever
disposition the fiscal may feel should be proper in the case thereafter should
be addressed for the consideration of the Court. The only qualification is that
the action of the Court must not impair the substantial rights of the accused.,
or the right of the People to due process of law.

xxx xxx xxx

The rule therefore in this jurisdiction is that once a complaint or information is

filed in Court any disposition of the case [such] as its dismissal or the
conviction or acquittal of the accused rests in the sound discretion of the
 Court. Although the fiscal retains the direction and control of the prosecution
of criminal cases even while the case is already in Court he cannot impose his
opinion on the trial court. The Court is the best and sole judge on what to do
with the case before it. . . . 20 (Citations omitted; emphasis supplied)

Nonetheless, since petitioner in his omnibus motion was asking for preliminary
investigation and not for a re-investigation (Crespo v. Mogul involved a re-
investigation), and since the Prosecutor himself did file with the trial court, on the
5th day after filing the information for murder, a motion for leave to conduct
preliminary investigation (attaching to his motion a copy of petitioner's omnibus
motion), we conclude that petitioner's omnibus motion was in effect filed with the
trial court. What was crystal clear was that petitioner did ask for a preliminary
investigation on the very day that the information was filed without such preliminary
investigation, and that the trial court was five (5) days later apprised of the desire of
the petitioner for such preliminary investigation. Finally, the trial court did in
fact grant the Prosecutor's prayer for leave to conduct preliminary investigation.
Thus, even on the (mistaken) supposition apparently made by the Prosecutor that
Section 7 of Rule 112 of the Revised Court was applicable, the 5-day reglementary
period in Section 7, Rule 112 must be held to have been substantially complied with.

We believe and so hold that petitioner did not waive his right to a preliminary investigation.
While that right is statutory rather than constitutional in its fundament, since it has in fact
been established by statute, it is a component part of due process in criminal justice. 21 The
right to have a preliminary investigation conducted before being bound over to trial for a
criminal offense and hence formally at risk of incarceration or some other penalty, is not a
mere formal or technical right; it is a substantive right. The accused in a criminal trial is
inevitably exposed to prolonged anxiety, aggravation, humiliation, not to speak of expense;
the right to an opportunity to avoid a process painful to any one save, perhaps, to hardened
criminals, is a valuable right. To deny petitioner's claim to a preliminary investigation would
be to deprive him the full measure of his right to due process.

The question may be raised whether petitioner still retains his right to a preliminary
investigation in the instant case considering that he was already arraigned on 23 August
1991. The rule is that the right to preliminary investigation is waived when the accused fails
to invoke it before or at the time of entering a plea at arraignment. 22 In the instant case,
petitioner Go had vigorously insisted on his right to preliminary investigation before his
arraignment. At the time of his arraignment, petitioner was already before the Court of
Appeals on certiorari, prohibition and mandamus precisely asking for a preliminary
investigation before being forced to stand trial.

Again, in the circumstances of this case, we do not believe that by posting bail petitioner
had waived his right to preliminary investigation. In People v. Selfaison,  23 we did hold that
appellants there had waived their right to preliminary investigation because immediately
after their arrest, they filed bail and proceeded to trial "without previously claiming that
they did not have the benefit of a preliminary investigation."  24 In the instant case,
petitioner Go asked for release on recognizance or on bail and for preliminary investigation
in one omnibus motion. He had thus claimed his right to preliminary
investigation before respondent Judge approved the cash bond posted by petitioner and
ordered his release on 12 July 1991. Accordingly, we cannot reasonably imply waiver of
preliminary investigation on the part of petitioner. In fact, when the Prosecutor filed a
motion in court asking for leave to conduct preliminary investigation, he clearly if impliedly
recognized that petitioner's claim to preliminary investigation was a legitimate one.
We would clarify, however, that contrary to petitioner's contention the failure to accord
preliminary investigation, while constituting a denial of the appropriate and full measure of
the statutory process of criminal justice, did not impair the validity of the information for
murder nor affect the jurisdiction of the trial court. 25

It must also be recalled that the Prosecutor had actually agreed that petitioner was entitled
to bail. This was equivalent to an acknowledgment on the part of the Prosecutor that the
evidence of guilt then in his hands was not strong. Accordingly, we consider that the 17 July
1991 order of respondent Judge recalling his own order granting bail and requiring
petitioner to surrender himself within forty-eight (48) hours from notice, was plainly
arbitrary considering that no evidence at all — and certainly no new or additional evidence
— had been submitted to respondent Judge that could have justified the recall of his order
issued just five (5) days before. It follows that petitioner was entitled to be released on bail
as a matter of right.

The final question which the Court must face is this: how does the fact that, in the instant
case, trial on the merits has already commenced, the Prosecutor having already presented
four (4) witnesses, impact upon, firstly, petitioner's right to a preliminary investigation and,
secondly, petitioner's right to be released on bail? Does he continue to be entitled to have a
preliminary investigation conducted in respect of the charge against him? Does petitioner
remain entitled to be released on bail?

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

In respect of the matter of bail, we similarly believe and so hold that petitioner remains
entitled to be released on bail as a matter of right. Should the evidence already of record
concerning petitioner's guilt be, in the reasonable belief of the Prosecutor, strong, the
Prosecutor may move in the trial court for cancellation of petitioner's bail. It would then be
up to the trial court, after a careful and objective assessment of the evidence on record, to
grant or deny the motion for cancellation of bail.

To reach any other conclusions here, that is, to hold that petitioner's rights to a preliminary
investigation and to bail were effectively obliterated by evidence subsequently admitted into
the record would be to legitimize the deprivation of due process and to permit the
Government to benefit from its own wrong or culpable omission and effectively to dilute
important rights of accused persons well-nigh to the vanishing point. It may be that to
require the State to accord petitioner his rights to a preliminary investigation and to bail at
this point, could turn out ultimately to be largely a ceremonial exercise. But the Court is not
compelled to speculate. And, in any case, it would not be idle ceremony; rather, it would be
a celebration by the State of the rights and liberties of its own people and a re-affirmation
of its obligation and determination to respect those rights and liberties.

ACCORDINGLY, the Court resolved to GRANT the Petition for Review on Certiorari. The
Order of the trial court dated 17 July 1991 is hereby SET ASIDE and NULLIFIED, and the
Decision of the Court of Appeals dated 23 September 1991 hereby REVERSED.

The Office of the Provincial Prosecutor is hereby ORDERED to conduct forthwith a

preliminary investigation of the charge of murder against petitioner Go, and to complete
such preliminary investigation within a period of fifteen (15) days from commencement
thereof. The trial on the merits of the criminal case in the Regional Trial Court shall be
SUSPENDED to await the conclusion of the preliminary investigation.

Meantime, petitioner is hereby ORDERED released forthwith upon posting of a cash bail
bond of One Hundred Thousand Pesos (P100,000.00). This release shall be without
prejudice to any lawful order that the trial court may issue, should the Office of the
Provincial Prosecutor move for cancellation of bail at the conclusion of the preliminary
investigation.

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

 EN BANC
[G.R. No. 69863-65 :  December 10, 1990.]
192 SCRA 183
LINO BROCKA, BENJAMIN CERVANTES, COSME GARCIA, RODOLFO SANTOS,
VALENTINO SALIPSIP, RICARDO VEGA, ERIC MARIANO, JOSE EMMANUEL OYALES,
RONNIE MATTA, ALFREDO VIAJE, RUBEN EUGENIO, REYNALDO ORTIZ, ORLANDO
ORTIZ, NOEL REYES, EDUARDO IMPERIAL, NESTOR SARMIENTO, FRANCO
PALISOC, VIRGILIO DE GUZMAN, ALBERTO REYES, JESSIE PINILI, ROMULO
AUGUIS, DOMINADOR RESURRECION III, RONNIE LAYGO, ROSAURO ROQUE,
CLARENCE SORIANO, OCTAVO DEPAWA, CARLITO LA TORRE, SEVERNO ILANO, JR.,
DOMINGO CAJIPE, ALAN ALEGRE, RAMON MARTINEZ, MA. GILDA HERNANDEZ,
EDNA P. VILLANUEVA, DOLLY S. CANU, MELQUIADES C. ATIENZA, ELIGIO P. VERA
CRUZ, ROGER C. BAGAN, ABUNDIO M. CALISTE, Petitioners, vs.  JUAN PONCE
ENRILE, MAJ. GENERAL FIDEL V. RAMOS, BRIG. GENERAL PEDRO BALBANERO,
COL. ABAD, COL. DAWIS, SERGIO APOSTOL, P/LT, RODOLFO M. GARCIA and JUDGE
RICARDO TENSUAN, Respondents.
 
DECISION
 
MEDIALDEA, J.:
 
This petition was originally filed on February 13, 1985 to secure the release of petitioners on
habeas corpus and to permanently enjoin the City Fiscal of Quezon City from investigating
charges of "Inciting to Sedition" against petitioners Lino Brocka, Benjamin Cervantes,
Cosme Garcia and Rodolfo Santos, (hereafter Brocka, et al.). On learning that the
corresponding informations for this offense has been filed by the City Fiscal against them on
February 11, 1985, a supplemental petition was filed on February 19, 1985 (p. 51, Rollo) to
implead the Presiding Judge, 1 and to enjoin the prosecution of Criminal Cases Nos. Q-
38023, Q-38024 and Q-38025 (p. 349, Rollo) and the issuance of warrants for their arrests,
including their arraignment. Since then President Ferdinand E. Marcos had ordered the
provisional release of Brocka, et al., the issue on habeas corpus has become moot and
academic (p. 396, Rollo). We shall thus focus on the question of whether or not the
prosecution of the criminal cases for Inciting to Sedition may lawfully be enjoined.:-cralaw

Petitioners were arrested on January 28, 1985 by elements of the Northern Police District
following the forcible and violent dispersal of a demonstration held in sympathy with the
jeepney strike called by the Alliance of Concerned Transport Organization (ACTO).
Thereafter, they were charged with Illegal Assembly in Criminal Cases Nos. 37783, 37787
and 37788 with Branch 108, Regional Trial Court, NCJR, Quezon City. 2
Except for Brocka, et al. who were charged as leaders of the offense of Illegal Assembly and
for whom no bail was recommended, the other petitioners were released on bail of
P3,000.00 each. Brocka, et al.'s provisional release was ordered only upon an urgent
petition for bail for which daily hearings from February 1-7, 1985 were held.
However, despite service of the order of release on February 9, 1985, Brocka, et al.
remained in detention, respondents having invoked a Preventive Detention Action (PDA)
allegedly issued against them on January 28, 1985 (p. 6, Rollo). Neither the original,
duplicate original nor certified true copy of the PDA was ever shown to them (p. 367, Rollo).
Brocka, et al. were subsequently charged on February 11, 1985 with Inciting to Sedition,
docketed as Criminal Cases Nos. Q-38023, Q-38024 and Q-38025 (p. 349, Rollo), without
prior notice to their counsel (p. 7, Rollo). The original informations filed recommended no
bail (p. 349, Rollo). The circumstances surrounding the hasty filing of this second offense
are cited by Brocka, et al. (quoting from a separate petition filed on their behalf in G.R. Nos.
69848-50 entitled "Sedfrey A. Ordoñez vs.  Col. Julian Arzaga, et al."), as follows:
"x  x  x
"6. The sham' character of the inquest examination concocted by all respondents is starkly
bizarre when we consider that as early as 10:30 A.M. today, February 11, 1985, Benjamin
Cervantes was able to contact undersigned petitioner by phone informing counsel that said
Benjamin Cervantes and the 4 other persons who are the subjects of this petition will be
brought before the Quezon City Fiscal at 2:30 for undisclosed reasons: subsequently,
another phone call was received by petitioning counsel informing him that the appearance
of Benjamin Cervantes et al. was to be at 2:00 P.M. When petitioning counsel arrived in the
office of Assistant City Fiscal Arturo Tugonon, the complainants' affidavits had not yet been
received by any of the panel of three assistant city fiscals, although the five persons under
detention were already in the office of said assistant fiscal as early as 2:00 P.M. It was only
at 3:00 when a representative of the military arrived bringing with him alleged statements
of complainants against Lino Broka (sic) et al. for alleged inciting to sedition, whereupon
undersigned counsel asked respondent Colonel Agapito Abad 'who ordered the detained
persons to be brought to the office of Assistant Fiscal Arturo Tugonon since there were no
charges on file;' and said Colonel Agapito Abad said aloud: 'I only received a telephone call
from Colonel Arzaga about 11:00 A.M. to bring the detained persons today — I am only the
custodian.' At 3:15, petitioning counsel inquired from the Records Custodian when the
charges against Lino Broka (sic) had been officially received and he was informed that the
said charges were never coursed through the Records Office.
"7. Under the facts narrated above, respondents have conspired to use the strong arm of
the law and hatched the nefarious scheme to deprive Lino Broka (sic) et al. the right to bail
because the utterances allegedly constituting inciting to sedition under Article 142 of the
Revised Penal Code are, except for varying nuances, almost verbatim the same utterances
which are the subject of Criminal Cases No. 37783, 37787 and 37788 and for which said
detained persons are entitled to be released on bail as a matter of constitutional right.
Among the utterances allegedly made by the accused and which the respondents claimed to
be violative of Article 142 of the Revised Penal Code are: 'Makiisa sa mga drivers, "Makiisa
sa aming layunin, "Digmaang bayan ang sagot sa kahirapan,' Itigil ang pakikialam ng
imperyalismo sa Pilipinas,' 'Rollback ng presyo ng langis sa 95 Centavos.' (See Annex B)
"8. That when petitioning counsel and other members of the defense panel requested that
they be given 7 days within which said counsel may confer with their clients — the detained
persons named above, the panel of assistant fiscals demanded that said detained persons
should sign a 'waiver' of their rights under Article 125 of the Revised Penal Code as a
condition for the grant of said request, which is a harassing requirement considering that
Lino Broka (sic) et al. were already under the detention, albeit illegally, and they could not
have waived the right under Rule 125 which they did not enjoy at the time the ruling was
made by the panel of assistant city fiscals." (pp. 4-6, Rollo in G.R. 69848-50).
They were released provisionally on February 14, 1985, on orders of then President F. E.
Marcos. The circumstances of their release are narrated in Our resolution dated January 26,
1985, as quoted in the Solicitor General's Manifestation as follows:
"G.R. Nos. 69848-50 (Sedfrey A. Ordoñez, Petitioner, vs. Col. Julian Arzaga, et al.,
Respondents). — Petitioner Sedfrey A. Ordoñez filed this petition for habeas corpus in behalf
of Lino Brocka, Benjamin Cervantes, Cosme Garcia, Alexander Luzano, and Rodolfo Santos,
who were all detained under a Preventive Detention Action (PDA) issued by then President
Ferdinand E. Marcos on January 28, 1985. They were charged in three separate
informations of the crime of illegal assembly under Art. 146, paragraph 3 of the Revised
Penal Code, as amended by PD 1834. On February 7, 1985, the Honorable Miriam Defensor
Santiago, Regional Trial Judge of Quezon City, issued a resolution in the above criminal
cases, directing the release of the five accused on bail of P6,000.00 for each of them, and
from which resolution the respondent fiscals took no appeal. Immediately thereafter, the
accused filed their respective bail bonds. This notwithstanding, they continued to be held in
detention by order of the respondent colonels; and on February 11, 1985, these same
accused were 'reinvestigated,' this time on charges of 'inciting to sedition' ** under Art. 142
of the Revised Penal Code, following which corresponding cases were filed. The respondents
complied with Our resolution requiring them, inter alia, to make a RETURN of the writ of
habeas corpus. In their RETURN, it appeared that all the accused had already been
released, four of them on February 15, 1985 and one February 8, 1985. The petitioner,
nevertheless, argued that the petition has not become moot and academic because the
accused continue to be in the custody of the law under an invalid charge of inciting to
sedition." (p. 395, Rollo).
Hence, this petition.
Brocka, et al. contend that respondents' manifest bad faith and/or harassment are sufficient
bases for enjoining their criminal prosecution, aside from the fact that the second offense of
inciting to sedition is illegal, since it is premised on one and the same act of attending and
participating in the ACTO jeepney strike. They maintain that while there may be a complex
crime from a single act (Art. 48, RTC), the law does not allow the splitting of a single act
into two offenses and filing two informations therefor, further, that they will be placed in
double jeopardy.
The primary issue here is the legality of enjoining the criminal prosecution of a case, since
the two other issues raised by Brocka, et al. are matters of defense against the sedition
charge.
We rule in favor of Brocka, et al. and enjoin their criminal prosecution for the second
offense of inciting to sedition.
Indeed, the general rule is that criminal prosecution may not be restrained or stayed by
injunction, preliminary or final. There are however exceptions, among which are:
"a. To afford adequate protection to the constitutional rights of the accused (Hernandez
vs.  Albano, et al., L-19272, January 25, 1967, 19 SCRA 95);
"b. When necessary for the orderly administration of justice or to avoid oppression or
multiplicity of actions (Dimayuga, et al. vs.  Fernandez, 43 Phil. 304; Hernandez
vs.  Albano, supra; Fortun vs.  Labang, et al., L-38383, May 27, 1981, 104 SCRA 607);
"c. When there is a pre-judicial question which is sub judice (De Leon vs.  Mabanag, 70 Phil.
202);
"d. When the acts of the officer are without or in excess of authority (Planas vs.  Gil, 67 Phil.
62);
"e. Where the prosecution is under an invalid law, ordinance or regulation (Young
vs.  Rafferty, 33 Phil. 556; Yu Cong Eng vs.  Trinidad, 47 Phil. 385, 389);
"f. When double jeopardy is clearly apparent (Sangalang vs.  People and Avendia, 109 Phil.
1140);
"g. Where the court has no jurisdiction over the offense (Lopez vs.  City Judge, L-25795,
October 29, 1966, 18 SCRA 616);
"h. Where it is a case of persecution rather than prosecution (Rustia vs.  Ocampo, CA-G.R.
No. 4760, March 25, 1960);
"i. Where the charges are manifestly false and motivated by the lust for vengeance (Recto
vs.  Castelo, 18 L.J. [1953], cited in Rañoa vs.  Alvendia, CA-G.R. No. 30720-R, October 8,
1962; Cf, Guingona, et al vs.  City Fiscal, L-60033, April 4, 1984, 128 SCRA 577); and
"j. When there is clearly no prima facie case against the accused and a motion to quash on
that ground has been denied (Salonga vs.  Paño, et al., L-59524, February 18, 1985, 134
SCRA 438).
"7. Preliminary injunction has been issued by the Supreme Court to prevent the threatened
unlawful arrest of petitioners (Rodriguez vs.  Castelo, L-6374, August 1, 1958)." (cited in
Regalado, Remedial Law Compendium, p. 188, 1988 Ed.)
In the petition before Us, Brocka, et al. have cited the circumstances to show that the
criminal proceedings had become a case of persecution, having been undertaken by state
officials in bad faith.
: nad

Respondents, on the other hand, had invoked a PDA in refusing Brocka, et al.'s release from
detention (before their release on orders of then Pres. Marcos). This PDA was, however,
issued on January 28, 1985, but was invoked only on February 9, 1985 (upon receipt of the
trial court's order of release). Under the guidelines issued, PDAs shall be invoked within 24
hours (in Metro Manila) or 48 hours (outside Metro Manila). (Ilagan v. Enrile, G.R. No.
70748, October 28, 1985, 139 SCRA 349). Noteworthy also is Brocka, et al.'s claim that,
despite subpoenas for its production, the prosecution merely presented a purported xerox
copy of the invoked PDA (par. 4, Counter-Rejoinder, p. 367, Rollo).
The foregoing circumstances were not disputed by the Solicitor General's office. In fact they
found petitioner's plight "deplorable" (par. 51, Manifestation, p. 396, Rollo).
The hasty filing of the second offense, premised on a spurious and inoperational PDA,
certainly betrays respondent's bad faith and malicious intent to pursue criminal charges
against Brocka, et al.
We have expressed Our view in the Ilagan case that "individuals against whom PDAs have
been issued should be furnished with the original, and the duplicate original, and a certified
true copy issued by the official having official custody of the PDA, at the time of the
apprehension" (supra, p. 369).
We do not begrudge the zeal that may characterize a public official's prosecution of criminal
offenders. We, however, believe that this should not be a license to run roughshod over a
citizen's basic constitutional lights, such as due process, or manipulate the law to suit
dictatorial tendencies.
We are impelled to point out a citizen's helplessness against the awesome powers of a
dictatorship. Thus, while We agree with the Solicitor General's observation and/or
manifestation that Brocka, et al. should have filed a motion to quash the information, We,
however, believe that such a course of action would have been a futile move, considering
the circumstances then prevailing. Thus, the tenacious invocation of a spurious and
inoperational PDA and the sham and hasty preliminary investigation were clear signals that
the prosecutors intended to keep Brocka, et al. in detention until the second offense of
"Inciting to Sedition" could be facilitated and justified without need of issuing a warrant of
arrest anew. As a matter of fact the corresponding informations for this second offense were
hastily filed on February 11, 1985, or two days after Brocka, et al.'s release from detention
was ordered by the trial judge on February 9, 1985.
Constitutional rights must be upheld at all costs, for this gesture is the true sign of
democracy. These may not be set aside to satisfy perceived illusory visions of national
grandeur.: nad

In the case of J. Salonga v. Cruz Paño, We point out:

"Infinitely more important than conventional adherence to general rules of criminal
procedure is respect for the citizen's right to be free not only from arbitrary arrest and
punishment but also from unwarranted and vexatious prosecution . . ." (G.R. No. L-59524,
February 18, 1985, 134 SCRA 438-at p. 448).
We, therefore, rule that where there is manifest bad faith that accompanies the filing of
criminal charges, as in the instant case where Brocka, et al. were barred from enjoying
provisional release until such time that charges were filed, and where a sham preliminary
investigation was hastily conducted, charges that are filed as a result should lawfully be
enjoined.
ACCORDINGLY, the petition is hereby GRANTED. The trial court is PERMANENTLY ENJOINED
from proceeding in any manner with the cases subject of the petition. No costs.
SO ORDERED.