[G.R. No. 69863-65: December 10, 1990.

]
LINO BROCKA vs. JUAN PONCE ENRILE

FACTS:
 Jeepney strike called by the Alliance of Concerned Transport Organization (ACTO) a demonstration held
in sympathy of this strike, forcibly and violently dispersed a petitioners arrested by Northern Police District
Officers – Jan 28 ‘85
 Petitioners charged with Illegal Assembly RPC146 par.3 in 3 crim cases filed before RTC QC
 All petitioners released on bail – P3,000 each EXCEPT for Lino Brocka, Ben Cervantes, Cosme Garcia
and Rodolfo Santos (Brocka, et al.), who were charged as leaders of the offense of Illegal Assembly for
whom no bail was recommended
 Urgent petition for bail filed before the RTC a daily hearings held between Feb.1-7 ’85 a On Feb. 7 or 9
’85, RTC QC Judge Miriam Defensor Santiago ordered Brocka, et al’s provisional release; recommended
bail at P6,0000 each a Brocka, et al filed respective bail bonds BUT…
 Despite service of release order, Brocka, et al remained in detention a respondents-police officers invoked
Preventive Detention Action (PDA) allegedly issued against Brocka, et al on Jan. 28 ‘85
o Neither original nor certified true copy of this PDA was shown to Brocka, et al.
 Feb 11 ’85 – Brocka, et al charged with Inciting to Sedition in 3 crim cases; hasty and spurious filing of this
second offense as follows:
o 10:30 AM counsel informed by phone that Brocka, et al will be brought before the QC Fiscal at 2:30PM for
undisclosed reasons a another phone call subsequently received informing counsel that appearance of
Brocka, et al was to be at 2:00PM
o 2:00PM Brocka, et al arrived at office of Asst. City Fiscal a complainants’ affidavits had not yet been
received
o 3:00PM representative of the military arrived with alleged statements of complainants against Brocka, et al
for alleged inciting to sedition
o 3:15PM counsel inquired from Records Custodian when the charges against Brocka, et al had been
officially received a informed that said charges were never coursed through the Records Office
o ALSO, utterances allegedly constituting Inciting to Sedition under RPC142 are, almost verbatim, the same
utterances which are the subject of the crim cases for Illegal Assembly for which Brocka, et al are entitled
to be relased on bail as a matter of Constitutional right a appears that respondents have conspired to
deprive Brocka, et al of the right to bail
o AND, panel of assistant fiscals demanded that Brocka, et al sign a waiver of their rights under RPC125 as
a condition for the grant of the counsel’s request that they be given 7 days within which counsel
may conferwith their clients a no such requirement required under the rules
 Brocka, et al released provisionally on Feb.14 ’85 on orders of then Pres. Marcos a release narrated in
Court’s resolution in petition for habeas corpus filed by Sedfrey Ordonez in behalf of Brocka, et al:
o In Return of the Writ of Habeas Corpus, respondents said all accused had already been released a four on
Feb15 ’85 and one on Feb.8 ’85
o Petitioners, nevertheless, still argue 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.
 Hence, this petition. Brocka, et al contend:
1. bad faith and/or harassment sufficient bases
for enjoining their criminal prosecution
2. second offense of Inciting to Sedition
manifestly illegal – premised on one and the same act of participating in the ACTO jeepney strike a matter
of defense in sedition charge so, only issue here is…

ISSUE: Whether or not criminal prosecution of a case may be enjoined – YES

 RULING: We rule in favor of Brocka, et al. and enjoin their criminal prosecution for the second offense of
inciting to sedition.

 GEN. RULE: Criminal prosecution may not be restrained or stayed by injunction, preliminary or final

 EXCEPTIONS:
1. To afford adequate protection to the constitutional rights of the accused
2. When necessary for the orderly administration of justice or to avoid oppression or multiplicity of
actions
3. When there is no prejudicial question which is subjudice
4. When the acts of the officer are without or in excess of authority
5. Where the prosecution is under an invalid law, ordinance or regulation
6. When double jeopardy is clearly apparent
7. When the court has no jurisdiction over the offense
8. Where it is a case of persecution rather than prosecution
9. Where the charges are manifestly false and motivated by lust for vengeance
10. When there is clearly no prima facie case against the accused and a motion to quash on that ground
had been denied
11. Preliminary injunction has been issued by the SC to prevent the threatened unlawful arrest
of petitioners

In the case at bar, criminal proceedings had become a case of persecution, have been undertaken by
state officials in bad faith:
1. Respondents invoked a spurious PDA in refusing Brocka, et al’s release from detention BUT this PDA was
issued on Jan.28 ’85 and invoked only on Feb.9 ’85 upon receipt of TC’s order of release a violates
guideline that PDA shall be invoked within 24 hrs in Metro, Manila or 48 hours outside Metro, Manila
Despite subpoenas for PDA’s production, prosecution merely presented a purported xeerox copy of it a
violates Court pronouncement 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 (Ilagan v Enrile)
2. SolGen’s manifestation: Brocka, et al should have filed a motion to quash the information instead of a
petition for Habeas Corpus

The Court agreed with the contention of the SolGen. However, it noted that such course of action would
have been a futile move, considering the circumstances then prevailing:
1. Spurious and inoperational PDA
2. Sham and hasty Preliminary Investigation
Clear signals that the prosecutors intended to keep Brocka, et al in detention until the second offense
could be facilitated and justified without need of issuing a warrant of arrest anew

"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.

If there is manifest bad faith that accompanies the filing of criminal charges (as in this case where
petitioners were barred from enjoying provisional release until such time that charges were filed) and
where a sham preliminary investigation was hastily conducted THEN charges that are filed as a result
should lawfully be enjoined.
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.

FIRST DIVISION
FERDINAND T. SANTOS, ROBERT G.R. No. 156081
JOHN SOBREPEA, and RAFAEL
PEREZ DE TAGLE, JR.,
Petitioners, Present:

Davide, Jr., C.J.,

(Chairman),
Quisumbing,
- versus - Ynares-Santiago,
Carpio, and
Azcuna, JJ.

WILSON GO, Promulgated:

Respondent.
October 19, 2005

x--------------------------------------------------x

DECISION

QUISUMBING, J.:
For our review on certiorari is the Decision [1] dated September 2, 2002 of the Court of Appeals in

CA-G.R. SP No. 67388, as well as its Resolution [2] dated November 12, 2002, denying petitioners motion

for reconsideration. The appellate court dismissed the petition for review under Rule 43 [3] of the 1997

Rules of Civil Procedure for being an erroneous mode of appeal from the Resolution [4] of the Secretary of

Justice. The Secretary had modified the Resolution [5] of the Office of the City Prosecutor of Pasig City in

I.S. No. PSG 00-04-10205 and directed the latter to file an information for estafa against petitioners.

The petitioners are corporate directors and officers of Fil-Estate Properties, Inc. (FEPI).

On October 17, 1995, FEPI allegedly entered into a Project Agreement with Manila Southcoast

Development Corporation (MSDC), whereby FEPI undertook to develop several parcels of land in

Nasugbu, Batangas allegedly owned by MSDC. Under the terms of the Agreement, FEPI was to convert

an approximate area of 1,269 hectares into a first-class residential, commercial, resort, leisure, and

recreational complex. The said Project Agreement clothed FEPI with authority to market and sell the

subdivision lots to the public.

Respondent Wilson Go offered to buy Lot 17, Block 38 from FEPI. Lot 17 measured

approximately 1,079 square meters and the purchase price agreed upon was P4,304,000. The Contract to

Sell signed by the parties was the standard, printed form prepared by FEPI. Under the terms of said

contract of adhesion, Go agreed to pay a downpayment of P1,291,200 and a last installment of P840,000
on the balance due on April 7, 1997. In turn, FEPI would execute a final Deed of Sale in favor of Go and

deliver to Go the owners duplicate copy of Transfer Certificate of Title (TCT) upon complete payment of

the purchase price.

Go fully complied with the terms of the Contract. FEPI, however, failed to develop the property.

Neither did it release the TCT to Go. The latter demanded fulfillment of the terms and conditions of their

agreement. FEPI balked. In several letters to its clients, including respondent Go, FEPI explained that the

project was temporarily halted due to some claimants who opposed FEPIs application for exclusion of the

subject properties from the coverage of the Comprehensive Agrarian Reform Law (CARL). Further, FEPIs

hands were tied by a cease and desist order issued by the Department of Agrarian Reform (DAR). Said

order was the subject of several appeals now pending before this Court. FEPI assured its clients that it

had no intention to abandon the project and would resume developing the properties once the disputes

had been settled in its favor.

Go was neither satisfied nor assured by FEPIs statements and he made several demands upon

FEPI to return his payment of the purchase price in full. FEPI failed to heed his demands. Go then filed

a complaint before the Housing and Land Use Regulatory Board (HLURB). He likewise filed a separate

Complaint-Affidavit for estafa under Articles 316 [6] and 318[7] of the Revised Penal Code before the Office

of the City Prosecutor of Pasig City against petitioners as officers of FEPI. The complaint for estafa

averred that the Contract to Sell categorically stated that FEPI was the owner of the property. However,

before the HLURB, FEPI denied ownership of the realty. Go alleged that the petitioners committed estafa

when they offered the subject property for sale since they knew fully well that the development of the

property and issuance of its corresponding title were impossible to accomplish, as the ownership and title

thereto had not yet been acquired and registered under the name of FEPI at the time of sale. Thus, FEPI

had grossly misrepresented itself as owner at the time of the sale of the subject property to him and when

it received from him the full payment, despite being aware that it was not yet the owner.

Petitioners challenged the jurisdiction of the City Prosecutor of Pasig City to conduct the

preliminary investigation on the ground that the complainant was not from Pasig City, the contract was not

executed nor were the payments made in Pasig City. Besides, countered petitioners, none of the elements

of estafa under Articles 316 and 318 were present. They averred that FEPI was not the owner of the

project but the developer with authority to sell under a joint venture with MSDC, who is the real owner.

They further denied that FEPI ever made any written nor oral representation to Go that it is the owner,
pointing out that Go failed to positively identify who made such misrepresentation to him nor did Go say

where the misrepresentation was made. According to petitioner, there being neither deceit nor

misrepresentation, there could be no damage nor prejudice to respondent, and no probable cause exists

to indict the petitioners. Petitioners likewise insisted that they could not be held criminally liable for abiding

with a cease-and-desist order of the DAR.

In his reply, Go stressed that the City Prosecutor of Pasig City had jurisdiction over the case. He

argued that the Contract to Sell specifically provided that payment be made at FEPIs office at Pasig City

and the demand letters bore the Pasig City address. He averred that FEPI could not disclaim ownership of

the project since the contract described FEPI as owner without mentioning MSDC. Additionally, the acts

executed by FEPI appearing in the contract were the acts of an owner and not a mere developer.

After the preliminary investigation, the City Prosecutor resolved to dismiss the complaint for

estafa, thus:
Wherefore, the case for estafa, under Articles 316 and 318 of the Revised Penal Code, filed
against the respondents Ferdinand Santos, Robert [John] Sobrepea, Federico Campos, Polo Pantaleon
and Rafael Perez de Tagle, Jr. is dismissed for insufficiency of evidence. [8]

The City Prosecutor found no misrepresentation stating that, (1) the Contract to Sell did not

mention FEPI as the owner of the property; (2) since no Deed of Sale had been executed by the parties,

then petitioners are not yet bound to deliver the certificate of title since under both the Contract to Sell and

Section 25[9] of Presidential Decree No. 957, [10] FEPI was bound to deliver the certificate of title only upon

the execution of a contract of sale; and (3) the City Prosecutor disavowed any jurisdiction since it is the

HLURB, which has exclusive jurisdiction over disputes and controversies involving the sale of lots in
commercial subdivision including claims involving refunds under P.D. No. 1344. [11]

Go appealed the City Prosecutors Resolution to the Department of Justice (DOJ), which, in turn

reversed the City Prosecutors findings, and held, to wit:

WHEREFORE, the questioned resolution is hereby MODIFIED. The City Prosecutor of Pasig City
is directed to file an information for estafa defined and penalized under Art. 316, par. 1 of the Revised
Penal Code against respondents Ferdinand Santos, Robert [John] Sobrepea, Federico Campos, Polo
Pantaleon and Rafael Perez De Tagle, Jr. and report the action taken within ten (10) days from receipt
hereof.
SO ORDERED.[12]

The DOJ found that there was a prima facie basis to hold petitioners liable for estafa under Article 316 (1)

of the Revised Penal Code, pointing out that the elements of the offense were present as evidenced by

the terms of the Contract to Sell. It ruled that under the Contract, the petitioners sold the property to Go
 despite full knowledge that FEPI was not its owner. The DOJ noted that petitioners did not deny the due

execution of the contract and had accepted payments of the purchase price as evidenced by the receipts.

Thus, FEPI was exercising acts of ownership when it conveyed the property to respondent Go. Acts to

convey, sell, encumber or mortgage real property are acts of strict ownership. Furthermore, nowhere did

FEPI mention that it had a joint venture with MSDC, the alleged true owner of the property. Clearly,

petitioners committed acts of misrepresentation when FEPI denied ownership after the perfection of the

contract and the payment of the purchase price. Since a corporation can only act through its agents or

officers, then all the participants in a fraudulent transaction are deemed liable.

Accordingly, an Information for estafa was filed against petitioners and Federico Campos and Polo

Pantaleon before the MTC of Pasig City. However, the arraignment was deferred since Campos and

Pantaleon filed a Motion for Judicial Determination of Probable Cause, which was granted by the trial

court. Meanwhile petitioners herein filed with the Court of Appeals, a petition for review docketed as CA-

G.R. SP No. 67388. Accordingly, the trial court deferred the arraignment of petitioners until the petition for

review was resolved.

On September 2, 2002, the appellate court disposed of CA-G.R. SP No. 67388 in this wise:
WHEREFORE, foregoing premises considered, the Petition, HAVING NO MERIT, is hereby
DENIED DUE COURSE AND ORDERED DISMISSED, with cost to Petitioners.
SO ORDERED.[13]

The appellate court opined that a petition for review pursuant to Rule 43 cannot be availed of as a mode of

appeal from the ruling of the Secretary of Justice because the Rule applies only to agencies or officers

exercising quasi-judicial functions. The decision to file an information or not is an executive and not a

quasi-judicial function.

Herein petitioners seasonably moved for reconsideration, but the motion was likewise denied by the Court

of Appeals.

Hence, this petition based on the following grounds:

(1) THE COURT OF APPEALS ERRED IN RULING THAT RULE 43 OF THE 1997 RULES OF CIVIL
PROCEDURE CANNOT BE AVAILED OF TO APPEAL THE RESOLUTIONS OF THE SECRETARY OF
JUSTICE.[14]
(2) THE DOJ SECRETARY ERRED WHEN IT FOUND PROBABLE CAUSE AND RESOLVED TO FILE AN
INFORMATION FOR ESTAFA UNDER ART. 316, SEC. 1 OF THE REVISED PENAL CODE AGAINST
PETITIONERS, CONSIDERING THAT: (A) Petitioners did not pretend that they, or FEPI, were the owners
of the subject property; (B) FEPI need not have been the owner at the time the Contract to Sell was
furnished to respondent Go; (C) There was no prejudice caused to respondent Go; (D) There is no
personal act or omission constituting a crime ascribed to any of the Petitioners, therefore, there can be no
probable cause against them; and (E) There was no deceit or even intent to deceive. [15]

To our mind, the sole issue for resolution is whether a petition for review under Rule 43 is a proper

mode of appeal from a resolution of the Secretary of Justice directing the prosecutor to file an information

in a criminal case. In the course of this determination, we must also consider whether the conduct of

preliminary investigation by the prosecutor is a quasi-judicial function.

Petitioners submit that there is jurisprudence to the effect that Rule 43 covers rulings of the

Secretary of Justice since during preliminary investigations, the DOJs decisions are deemed as awards,

judgments, final orders or resolutions of or authorized by any quasi-judicial agency in the exercise of its

quasi-judicial functions, and its prosecutorial offices are considered quasi-judicial bodies/officers performing

quasi-judicial functions.

Respondent counters that the herein petition is a dilatory tactic and emphasizes that injunction will

not lie to restrain criminal prosecution.

Rule 43 of the 1997 Rules of Civil Procedure clearly shows that it governs appeals to the Court of

Appeals from decisions and final orders or resolutions of the Court of Tax Appeals or quasi-judicial

agencies in the exercise of their quasi-judicial functions. The Department of Justice is not among the

agencies[16] enumerated in Section 1 of Rule 43. Inclusio unius est exclusio alterius.

We cannot agree with petitioners submission that a preliminary investigation is a quasi-judicial

proceeding, and that the DOJ is a quasi-judicial agency exercising a quasi-judicial function when it reviews

the findings of a public prosecutor regarding the presence of probable cause.

In Bautista v. Court of Appeals ,[17] we held that a preliminary investigation is not a quasi-judicial

proceeding, thus:
[t]he prosecutor in a preliminary investigation does not determine the guilt or innocence of the accused. He
does not exercise adjudication nor rule-making functions. Preliminary investigation is merely inquisitorial,
and is often the only means of discovering the persons who may be reasonably charged with a crime and
to enable the fiscal to prepare his complaint or information. It is not a trial of the case on the merits and
has no purpose except that of determining whether a crime has been committed and whether there is
probable cause to believe that the accused is guilty thereof. While the fiscal makes that determination, he
cannot be said to be acting as a quasi-court, for it is the courts, ultimately, that pass judgment on the
accused, not the fiscal.[18]
 Though some cases[19] describe the public prosecutors power to conduct a preliminary

investigation as quasi-judicial in nature, this is true only to the extent that, like quasi-judicial bodies, the

prosecutor is an officer of the executive department exercising powers akin to those of a court, and the

similarity ends at this point. [20] A quasi-judicial body is as an organ of government other than a court and

other than a legislature which affects the rights of private parties through either adjudication or rule-

making.[21] A quasi-judicial agency performs adjudicatory functions such that its awards, determine the

rights of parties, and their decisions have the same effect as judgments of a court. Such is not the case

when a public prosecutor conducts a preliminary investigation to determine probable cause to file an

information against a person charged with a criminal offense, or when the Secretary of Justice is reviewing

the formers order or resolutions.

Since the DOJ is not a quasi-judicial body and it is not one of those agencies whose decisions,

orders or resolutions are appealable to the Court of Appeals under Rule 43, the resolution of the Secretary

of Justice finding probable cause to indict petitioners for estafa is, therefore, not appealable to the Court of

Appeals via a petition for review under Rule 43. Accordingly, the Court of Appeals correctly dismissed

petitioners petition for review.

Notwithstanding that theirs is a petition for review properly under Rule 45, petitioners want us to

reverse the findings of probable cause by the DOJ after their petition for review under Rule 43 from the

court a quo failed. This much we are not inclined to do, for we have no basis to review the DOJs factual

findings and its determination of probable cause.

First, Rule 45 is explicit. This mode of appeal to the Supreme Court covers the judgments,

orders or resolutions of the Court of Appeals, the Sandiganbayan, the Regional Trial Court or any

authorized court and should raise only pure question of law. The Department of Justice is not a court.

Also, in this petition are raised factual matters for our resolution, e.g. the ownership of the subject

property, the existence of deceit committed by petitioners on respondent, and petitioners knowledge or

direct participation in the Contract to Sell. These are factual issues and are outside the scope of a petition
for review on certiorari. The cited questions require evaluation and examination of evidence, which is the

province of a full-blown trial on the merits.

Second, courts cannot interfere with the discretion of the public prosecutor in evaluating the

offense charged. He may dismiss the complaint forthwith, if he finds the charge insufficient in form or

substance, or without any ground. Or, he may proceed with the investigation if the complaint in his view is

sufficient and in proper form.[22] The decision whether to dismiss a complaint or not, is dependent upon the

sound discretion of the prosecuting fiscal and, ultimately, that of the Secretary of Justice. [23] Findings of the

Secretary of Justice are not subject to review unless made with grave abuse of discretion. [24] In this case,

petitioners have not shown sufficient nor convincing reason for us to deviate from prevailing jurisprudence.

WHEREFORE, the instant petition is DENIED for lack of merit. The Decision and the Resolution

of the Court of Appeals in CA-G.R. SP No. 67388, dated September 2, 2002 and November 12, 2002,

respectively, are AFFIRMED.

Costs against petitioners.

Go vs CA

G.R. No. 101837, February 11, 1992

Facts:

Rolito Go while traveling in the wrong direction on a one-way street, nearly bumped Eldon

Maguan’s car. Go alighted from his car, shot Maguan 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. A manhunt ensued.

 Six days after, 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.

Petitioner posted bail, the prosecutor filed the case to the lower court, setting and commencing

trial without preliminary investigation. Prosecutor reasons that the petitioner has waived his right to

preliminary investigation as bail has been posted and that such situation, that petitioner has been arrested

without a warrant lawfully, falls under Section 5, Rule 113 and Section 7, Rule 112 of The 1985 Rules of

Criminal Procedure which provides for the rules and procedure pertaining to situations of lawful

warrantless arrests.

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 warrantless 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.

Issue/s:

Whether or not a lawful warrantless arrest had been effected by the San Juan Police in

respect of petitioner Go;

 Whether petitioner had effectively waived his right to preliminary investigation

Held:

1. No. The Court does not believe that the warrantless “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 a

warrant, arrest a person;

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

attempting to commit an offense;

(b) When an offense has in fact just been committed, and he has personal knowledge of facts

indicating that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or

place where he is serving final judgment or temporarily confined while his case is pending, or has escaped

while being transferred from one confinement to another.

In cases falling under paragraphs (a) and (b) hereof, the person arrested without a warrant shall

be forthwith delivered to the nearest police station or jail, and he shall be proceeded against in accordance

with Rule 112, Section 7.”

 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.”

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.

2. No. In the circumstances of this case, the Court does not believe that by posting bail, petitioner

had waived his right to preliminary investigation. In People v. Selfaison, the Court held 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.”

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, the Court 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.
ALVAREZ ARO YUSOP, petitioner, vs. The Honorable SANDIGANBAYAN (First Division), respondent.
DECISION
PANGANIBAN, J.:

The right of a person to preliminary investigation is recognized by the law and is governed by the Rules of
Court. However, the failure to accord this right does not ipso facto result in the dismissal of the information;
the case is merely suspended, and the prosecutor directed to conduct the proper investigation.

The Case

Before us is a Petition for Certiorari under Rule 65 of the Rules of Court, assailing two Orders[1] of the
Sandiganbayan,[2] both dated February 15, 1999. The first Order rejected the attempt of petitioner to stop
his arraignment in Criminal Case Nos. 24524-25, on the ground that he had been denied the right to a
preliminary investigation. In the assailed second Order, the Sandiganbayan directed that a plea of not
guilty be entered for all the accused, including herein petitioner.

The Facts

Acting on an Affidavit-Complaint[3] filed by a certain Erlinda Fadri, the Office of the Ombudsman-
Mindanao issued an Order[4] dated September 19, 1995, naming the following as respondents: Benjamin
Arao, Frederick Winters, Pelaez Pantaran, Eduardo Dablo, Efren Sissay and the city jail warden of
Pagadian City. The Order also required respondents, within ten days from receipt thereof to submit their
counter-affidavits and other pieces of controverting evidence.

The Office of the Ombudsman for Mindanao issued a Resolution dated January 15, 1998,[5]
recommending the prosecution of the aforenamed respondents for violation of Article 269 of the Revised
Penal Code and Section 3-a in relation to Section 3-e of Republic Act No. 3019 as amended. Significantly,
the name of Petitioner Alvarez A. Yusop was included as one of the persons to be prosecuted, although he
was not one of the original respondents mentioned in the Order of September 19, 1995. Ombudsman
Aniano A. Desierto approved the recommendation.

Accordingly, two Informations were filed with the Sandiganbayan. They were docketed as Criminal Case
Nos. 24524 (violation of Section 3-a of RA 3019) and 24525 (unlawful arrest under Article 269 of the
Revised Penal Code).

On April 16, 1998, an Order of Arrest was issued by the Sandiganbayan in Criminal Case No. 24524.
Petitioner, however, posted a bail bond before the Regional Trial Court of Dipolog City on May 20 of the
same year. On the same day, he filed a Motion To Remand Case To The Ombudsman - Mindanao For
Preliminary Investigation.

In a Resolution dated June 8, 1998, the Sandiganbayan denied the Motion of petitioner for his alleged
failure to submit himself to the jurisdiction of the anti-graft court.

On August 8, 1998, petitioner filed a Motion to Dismiss, grounded again on the lack of preliminary
investigation. In an Order dated September 22, 1998, the Sandiganbayan resolved not to take action on
the Motion, because petitioner had not yet submitted himself to its jurisdiction insofar as Criminal Case No.
24525 was concerned.

On the scheduled arraignment on February 15, 1999, petitioner reiterated his claim that he had not been
accorded preliminary investigation. In its two assailed Orders, the Sandiganbayan rejected his claim and
proceeded with the arraignment.

Hence, this recourse.[6]

Ruling of the Sandiganbayan

The Sandiganbayan rejected petitioners plea for preliminary investigation in this wise:

This morning, the accused herein appeared for arraignment duly represented by their counsel. Before
proceeding, Atty. Omar A. Rivera appearing in behalf of accused Yusop informed this court of his
reservations about proceeding with the arraignment this morning, primarily on the ground that accused
Yusop did not undergo preliminary investigation, with the additional claim that he had not been furnished
any notice nor was he informed of the proceedings before the Ombudsman with respect to these cases. It
would appear that one of the reasons [therefor] is that the accused despite notice of the existence of the
accusation against him in Criminal Case No. 24525, had not given any timely notice nor any statement of
any alleged inadequacy of the proceeding regarding the filing of the Information herein; thus, the Court is
not persuaded that the claim of the accused Yusop with regard to the inadequacy of the proceedings as
against him could still be validly entertained at this time. This is more particularly significant under Section
27 of Republic Act 6770 and x x x Criminal Cases 24524 and 24525 refer to the same incident although
the prosecution, for its part, has filed Informations under different statutes covering the same incident.
Thus, the claim of accused Yusop that he was not notified with respect to one of the cases on an identical
set of facts herein is not [of] particular significance since this would be indulging in a superfluity.

xxxxxxxxx

Thus, in view of all the following, the Court will now proceed to the arraignment of the accused herein.

The Issue

Although the parties did not specify the issue in this case, it is clear from their submissions that they are
asking this Court to resolve this question: Whether the Sandiganbayan, despite being informed of the lack
of preliminary investigation with respect to petitioner, in Criminal Case No. 24524, committed grave abuse
of discretion in proceeding with his arraignment.

The Courts Ruling

The Petition is meritorious in part. While petitioner is entitled to preliminary investigation, the case against
him should not be dismissed.

Main Issue:
Preliminary Investigation

Preliminary investigation is an inquiry or proceeding to determine whether there is sufficient ground to

engender a well-founded belief that a crime has been committed and the respondent is probably guilty
thereof, and should be held for trial.[7] The Court explained that the rationale of a preliminary investigation
is to protect the accused from the inconvenience, expense and burden of defending himself in a formal
trial unless the reasonable probability of his guilt shall have been first ascertained in a fairly summary
proceeding by a competent officer.[8]

The Rules of Court requires such investigation before an information for an offense punishable by at least
four years, two months and one day may be filed in court.[9] The old Rules, on the other hand, mandates
preliminary investigation of an offense cognizable by the regional trial court.[10]

Petitioner is charged in Criminal Case No. 24524 with violation of Section 3-a of RA 3019. Such offense is
punishable with, among other penalties, imprisonment of six years and one month to fifteen years.[11]
Under the aforecited Rules, whether in the old or the revised version, he is entitled to a preliminary
investigation.

It is undisputed, however, that before the Information against petitioner was filed, no preliminary
investigation had been conducted. In fact, the Office of the Ombudsman admitted that petitioner was
denied of his right to preliminary investigation.[12]

We find no basis for the Sandiganbayans ruling that petitioner had not given timely notice nor any
statement of the alleged inadequacy of the proceeding regarding the filing of the Information.

First, there was no showing that petitioner was notified of the charges filed by Erlinda Fadri. As earlier
noted, he had not been named as a respondent in the September 19, 1995 Order of the Office of the
Ombudsman in Mindanao. His name did not even appear in the caption of its January 15, 1998
Resolution,[13] which recommended the filing of charges against the accused. Indeed, in his Compliance
with the August 26, 1998 Sandiganbayan Resolution,[14] Special Prosecution Officer Diosdado V. Calonge
manifested that petitioner was not notified of the proceedings of the preliminary investigation and was
accordingly not given the opportunity to be heard thereon.[15]

After learning of the filing of the Information against him when he was served a Warrant of Arrest,
petitioner did not dally. He immediately informed the Sandiganbayan that no preliminary investigation had
been conducted in regard to him. Several months later, moments before his arraignment, he reiterated his
prayer that the preliminary investigation be conducted. In this light, the Sandiganbayan erred in saying that
he had not given the court timely notice of this deficiency.

Even assuming that prior to the filing of the Information, petitioner had known that the proceedings and the
investigation against his co-accused were pending, he cannot be expected to know of the investigators
subsequent act of charging him. Precisely, he had not been previously included therein and, consequently,
he had not been notified thereof.
In Go v. Court of Appeals,[16] this Court held that the right to preliminary investigation is waived when the
accused fails to invoke it before or at the time of entering a plea at arraignment. Conversely, if the accused
does invoke it before arraignment, as the petitioner did in this case, the right is not waived.

Neither did the filing of a bail bond constitute a waiver of petitioners right to preliminary investigation.
Under Section 26, Rule 114 of the Revised Rules of Criminal Procedure, [a]n 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. x x x.

We stress that the right to preliminary investigation is substantive, not merely formal or technical. To deny
it to petitioner would deprive him of the full measure of his right to due process.[17] Hence, preliminary
investigation with regard to him must be conducted.

We disagree with the Sandiganbayans reliance on Section 27 of Republic Act 6770.[18] This provision
cannot justify the evasion of the requirement set forth in the Rules of Court for conducting preliminary
investigation. The law does not sanction such interpretation, for it deals merely with the finality of orders,
directives and decisions of the Office of the Ombudsman -- not the deprivation of the substantive right to a
preliminary investigation. Moreover, petitioner cannot be bound by the Ombudsmans January 15, 1998
Resolution, which recommended the filing of charges. He was not a party to the case and was not
accorded any right to present evidence on his behalf.

In any event, even the Ombudsman agrees that petitioner was deprived of this right and believes that the
former has the duty x x x to see to it that the basic rudiments of due process are complied with.[19] For its
part, the Sandiganbayan opted to remain silent when asked by this Court to comment on the Petition.

Dismissal of the Charges

Not Justified

Petitioner also prays that the cases against him be dismissed for lack of preliminary investigation.[20] We
disagree. In the first place, nowhere in the Revised Rules of Criminal Procedure, or even the old Rules, is
there any mention that this lack is a ground for a motion to quash.[21] Furthermore, it has been held that
responsibility for the absence of a preliminary investigation does not go to the jurisdiction of the court but
merely to the regularity of the proceedings.[22] We reiterate the following ruling of the Court in People v.
Gomez:

If there were no preliminary investigations and the defendants, before entering their plea, invite the
attention of the court to their absence, the court, instead of dismissing the information, should conduct
such investigation, order the fiscal to conduct it or remand the case to the inferior court so that the
preliminary investigation may be conducted.[23]

In sum, Criminal Case No. 24524 must be suspended with respect to petitioner even if the case is already
undergoing trial, because [t]o reach any other conclusion here, that is, to hold that petitioners 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.[24]

WHEREFORE, the Petition is partially GRANTED. The assailed Orders are REVERSED, and the Office of
the Ombudsman is hereby ORDERED to conduct forthwith a preliminary investigation of the charge of
violation of Section 3-a of RA 3019 against Petitioner Alvarez Aro Yusop. The trial on the merits of Criminal
Case No. 24524 shall be SUSPENDED in regard to petitioner until the conclusion of the preliminary
investigation. No pronouncement as to costs.

SO ORDERED.

Melo, (Chairman), Vitug, Gonzaga-Reyes, and Sandoval-Gutierrez, JJ., concur.

RUTH D. BAUTISTA,
petitioner, vs.
COURT OF APPEALS, OFFICE OF THE REGIONAL STATE PROSECUTOR, REGION IV, and SUSAN
ALOÑA,
respondents
G.R. No. 143375 July 6, 2001

Facts:

1) Sometime in April 1998 petitioner Ruth D. Bautista issued to private respondent Susan Aloña a check
dated 8 May 1998 for P1,500,000.00 drawn on Metrobank Cavite City Branch.

2) On 20 October 1998 private respondent presented the check for payment. The drawee bank
dishonored the check because it was drawn against insufficient funds.

3) On 16 March 1999 private respondent filed a complaint-affidavit with the City Prosecutor of Cavite City.

4) Petitioner then submitted her own counter-affidavit asserting in her defense that presentment of the
check within ninety (90) days from due date thereof was an essential element of the offense of violation of
BP 22. Since the check was presented for payment 166 days after its due date, it was no longer
punishable under BP 22.

5) On 22 April 1999, the investigating prosecutor issued a resolution recommending the filing of an
Information against petitioner for violation of BP 22, which was approved by the City Prosecutor. Bautista
filed a motion to review the resolution with Office of the Regional State Prosecutor (ORSP) for Region IV,
but it was denied.
 6) On 1 October 1999 petitioner filed with the Court of Appeals a petition for review of the resolution of the
ORSP. The appellate court issued the assailed Resolution issued by ORSP. CA further stated it is an error
to file a petition for review under Rule 43 of Rules of Civil Procedure in their case because ORSP
resolution does not fall under a quasi-judicial body.

7) The petitioner escalated the complaint to SC using the defense that a prosecutor conducting a
preliminary investigation performs a quasi-judicial function.

Issues:
1) Is the petition to review proper?

2) Is the 90-day period an essential element of BP 22, to warrant the defense of the petitioner.

Held:
1) The Office of the Prosecutor is not a quasi-judicial body. The prosecutor in a preliminary investigation
does not determine the guilt or innocence of the accused, like in quasi-judicial bodies. He does not
exercise adjudication nor rule-making functions. Further, it is well-settled that the courts cannot interfere
with the discretion of the fiscal to determine the specificity and adequacy of the offense charged. SC
assailed Resolution of the Court of Appeals.

2) It is clear that petitioner is being prosecuted for violation of the first paragraph of the offense. The court
is not convinced that the 90-day period is an essential element of the crime as claimed by the petitioner.
The ninety (90)-day period creates a
prima facie presumption of knowledge, but it is not a conclusive presumption that forecloses or
precludes the presentation of evidence to the contrary. The term prima facie evidence denotes evidence
which, if unexplained or uncontradicted, is sufficient to sustain the proposition it supports or to establish
the facts, or to counterbalance the presumption of innocence to warrant a conviction.

HUBERT J. P. WEBB, VS. HONORABLE RAUL E. DE LEON

G.R. No. 121234, August 23, 1995

FACTS:

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

Forthwith, the Department of Justice formed a panel of prosecutors headed by Assistant Chief State
Prosecutor Jovencio R. Zuno to conduct the preliminary investigation.
ARGUMENTS:

Petitioners fault the DOJ Panel for its finding of probable cause. They assail the credibility of Jessica
Alfaro as inherently weak and uncorroborated due to the inconsistencies between her April 28, 1995 and
May 22, 1995 sworn statements. They criticize the procedure followed by the DOJ Panel when it did not
examine witnesses to clarify the alleged inconsistencies.

Petitioners charge that respondent Judge Raul de Leon and, later, respondent Judge Amelita Tolentino
issued warrants of arrest against them without conducting the required preliminary examination.

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

ISSUES:

1. Whether or not the DOJ Panel likewise gravely abused its discretion in holding that there is probable
cause to charge them with the crime of rape and homicide
2. Whether or not respondent Judges de Leon and Tolentino gravely abused their discretion when they
failed to conduct a preliminary examination before issuing warrants of arrest against them
3. Whether or not the DOJ Panel denied them their constitutional right to due process during their
preliminary investigation
4. Whether or not the DOJ Panel unlawfully intruded into judicial prerogative when it failed to charge
Jessica Alfaro in the information as an accused.

HELD:

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

REASONS:

1. The Court ruled that the DOJ Panel did not gravely abuse its discretion when it found probable cause
against the petitioners. A probable cause needs only to rest on evidence showing that more likely than not,
a crime has been committed and was committed by the suspects. Probable cause need not be based on
clear and convincing evidence of guilt, neither on evidence establishing guilt beyond reasonable doubt and
definitely, not on evidence establishing absolute certainty of guilt.
2. The Court ruled that respondent judges did not gravely abuse their discretion. In arrest cases, there
must be a probable cause that a crime has been committed and that the person to be arrested committed
it. Section 6 of Rule 112 simply provides that “upon filing of an information, the Regional Trial Court may
issue a warrant for the accused. Clearly the, our laws repudiate the submission of petitioners that
respondent judges should have conducted “searching examination of witnesses” before issuing warrants
of arrest against them.
3. The DOJ Panel precisely ed the parties to adduce more evidence in their behalf and for the panel to
study the evidence submitted more fully.
4. Petitioner’s argument lacks appeal for it lies on the faulty assumption that the decision whom to
prosecute is a judicial function, the sole prerogative of the courts and beyond executive and legislative
interference. In truth, the prosecution of crimes appertains to the executive department of government
whose principal power and responsibility is to see that our laws are faithfully executed. A necessary
component of this power is the right to prosecute their violators (See R.A. No. 6981 and section 9 of Rule
119 for legal basis).

With regard to the inconsistencies of the sworn statements of Jessica Alfaro, the Court believes that these
have been sufficiently explained and there is no showing that the inconsistencies were deliberately made
to distort the truth.

With regard to the petitioners’ complaint about the prejudicial publicity that attended their preliminary
investigation, the Court finds nothing in the records that will prove that the tone and content of the publicity
that attended the investigation of petitioners fatally infected the fairness and impartiality of the DOJ Panel.
Petitioners cannot just rely on the subliminal effects of publicity on the sense of fairness of the DOJ Panel,
for these are basically unbeknown and beyond knowing.

HO vs PEOPLE (1997)Panganiban, J.FACTS On August 8, 1991, the Anti-Graft League of the Philippines,
represented by its chief prosecutor Atty. Reynaldo L. Bagatsing, filed with the Office of the Ombudsman a
complaint against Doris Teresa Ho, Rolando S. Narciso (petitioners in G.R. Nos. 106632 and 106678,
respectively), Anthony Marden,Arsenio Benjamin Santos and Leonardo Odoño. The complaint was for
alleged violation of Section 3 (g) of Republic Act 3019 prohibiting a public officer from entering into any
contract or transaction on behalf of the government if it is manifestly and grossly disadvantageous to the
latter, whether the public officer profited or will profit thereby. According to the information, Rolando
Narciso, being then the Vice-President of the National Steel Corporation (NSC), a government-
owned or controlled corporation organized and operating under the Philippine laws, and Doris Ho, the
President of National Marine Corporation (NMC), a private corporation organized and operating under our
Corporation law, was said to have entered without legal justification into a negotiated contract of
affreightment disadvantageous to the NSC for the haulage of its products at the rate of P129.50/MT,
from Iligan City to Manila. Such contract was entered into despite their full knowledge that the rate
they have agreed upon was much higher than those offered by the Loadstar Shipping Company, Inc.
(LSCI) and Premier Shipping Lines, Inc. (PSLI), in the amounts of P109.56 andP123.00 per Metric Ton,
respectively, in the public bidding, thereby giving unwarranted benefits to the National Marine
Corporation.Ho and Narciso alleged that the Sandiganbayan, in determining probable cause for the
issuance of the warrant for their arrest, merely relied on the information and the resolution attached
thereto, filed by the Ombudsman without other supporting evidence, in violation of the requirements of
Section 2, Article III of the Constitution, and settled jurisprudence. They contend that a judge, in
personally determining the existence of probable cause, must have before him sufficient evidence
submitted by the parties, other than the information filed by the investigating prosecutor, to
support his conclusion and justify the issuance of an arrest warrant. Such evidence should
not be “merely described in a prosecutor’resolution.”Sandiganbayan’s Denial: “Considering,
therefore, that this Court did not rely solely on the certification appearing in the information in this case in
the determination of whether probable cause exists to justify the issuance of the warrant of arrest but also
on the basis predominantly shown by the facts and evidence appearing in the resolution/memorandum of
responsible investigators/ prosecutors, then the recall of the warrant of arrest, or the reconsideration
sought for, cannot be granted. More so, when the information, as filed, clearly shows that it is sufficient in
form and substance based on the facts and evidence adduced by both parties during the preliminary
investigation. To require this Court to have the entire record of the preliminary investigation to be
produced before it, including the evidence submitted by the complainant and the accused-respondents,
would appear to be an exercise in futility.”ISSUE May a judge determine probable cause and issue a
warrant of arrest solely on the basis of the resolution of the prosecutor (in the instant case, the Office of
the Special Prosecutor of the Ombudsman) who conducted the preliminary investigation, without having
before him any of the evidence (such as complainant’s affidavit, respondent’s counter-affidavit, exhibits,
etc.) which may have been submitted at the preliminary investigation? DECISION & RATIO NO. Art III
Section 2, 1987 Constitution: The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures of whatever nature and for any purpose shall be
inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be
determined personally by the judge after examination under oath or affirmation of the complainant and the
witnesses he may produce and particularly describing the place to be searched and the persons or things
to be seized. (Art III Section 2, 1987 Constitution).

The word “personally” does not appear in the corresponding provisions of our previous
Constitutions. This emphasis shows the present Constitution’s intent to place a greater degree of
responsibility upon trial judges than that imposed under the previous Charters. Soliven vs. Makasiar: “In
satisfying himself of the existence of probable cause for the issuance of a warrant of arrest, the judge is
not required to personally examine the complainant and his witnesses. Following established doctrine and
procedure, he shall: (1) personally evaluate the report and the supporting documents submitted by the
fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or (2)
if on the basis thereof he finds no probable cause, he may disregard the fiscal’s report and require the
submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of
probable cause.” People vs. Inting: There is a difference between the judge’s goal from that of the
prosecutor’s. First, the determination of probable cause is a function of the Judge. It is not for the
Provincial Fiscal or Prosecutor or for the Election Supervisor to ascertain. Second, the preliminary inquiry
made by a Prosecutor does not bind the Judge. It merely assists him to make the determination of
probable cause. Third, Judges and Prosecutors alike should distinguish the preliminary
inquiry, which determines probable cause for the issuance of a warrant of arrest from the
preliminary investigation proper, which ascertains whether the offender should be held for trial or released.
Even if the two inquiries are conducted in the course of the same proceeding, there should be no
confusion about the objectives.  The Court, in this case, reiterated and elaborated on the doctrine laid
down in People vs. Inting and ruled that : “First, as held in Inting, the determination of probable
cause by the prosecutor is for a purpose different from that which is to be made by the judge. Whether
there is reasonable ground to believe that the accused is guilty of the offense charged and should be held
for trial is what the prosecutor passes upon. The judge, on the other hand, determines whether a warrant
of arrest should be issued against the accused, i.e. Whether there is a necessity for placing him under
immediate custody in order not to frustrate the ends of justice. Thus, even if both should base their
findings on the same proceeding or evidence, there should be no confusion as to their distinct objectives.
Second, since their objectives are different, the judge cannot rely solely on the report of the prosecutor in
finding probable cause to justify the issuance of a warrant of arrest. Obviously and understandably, the
contents of the prosecutor’s report will support his own conclusion that there is reason to charge the
accused of an offense and hold him for trial. However, the judge must decide independently. Hence, he
must have supporting evidence, other than the prosecutor’s bare report, upon which to legally sustain his
own findings on the existence (or nonexistence) of probable cause to issue an arrest order. This
responsibility of determining personally and independently the existence or nonexistence of probable
cause is lodged in him by no less than the most basic law of the land. Parenthetically, the prosecutor
could ease the burden of the judge and speed up the litigation process by forwarding to the latter not only
the information and his bare resolution finding probable cause, but also so much of the records and the
evidence on hand as to enable His Honor to make his personal and separate judicial finding on whether
tissue a warrant of arrest Lastly, it is not required that the complete or entire records of the case during the
preliminary investigation be submitted to and examined by the judge. We do not intend to unduly burden
trial courts by obliging them to examine the complete records of every case all the time simply for ordering
the arrest of an accused. What is required, rather, is that the judge must have sufficient supporting
documents (such as the complaint, affidavits, counter-affidavits, sworn statements of witnesses or
transcripts of stenographic notes, if any) upon which to make his independent judgment or, at the very
least, upon which to verify the findings of the prosecutor as to the existence of probable cause. The
point is: he cannot rely solely and entirely on the prosecutor’s recommendation, as Respondent Court did
in this case. Although the prosecutor enjoys the legal presumption of regularity in the performance of his
official duties and functions, which in turn gives his report the presumption of accuracy, the
Constitution, we repeat, commands the judge to personally determine probable cause in the
issuance of warrants of arrest. This Court has consistently held that a judge fails in his bounden duty if
he relies merely on the certification or the report of the investigating officer. “IN THE INSTANT CASE, the
public respondent relied fully and completely upon the resolution of the graft investigation officer and the
memorandum of the reviewing prosecutor, attached to the information filed before it, and its conjecture
that the Ombudsman would not have approved their recommendation without supporting evidence. It had
either no other documents from the complainant (the Anti-Graft League of the Philippines) or the People
from which to sustain its own conclusion that probable cause exists. Respondent Court palpably
committed grave abuse of discretion in ipso facto issuing the challenged warrant of arrest on the
sole basis of the prosecutor’s findings and recommendation, and without determining on its
own the issue of probable cause based on evidence other than such bare findings and recommendation.

Duterte v. Sandiganbayan, 289 SCRA 721 (1998)

FACTS: Petitioners were charged before the Sandiganbayan for violating Sec. 3(g) of R.A. No. 3019,
otherwise known as the Anti-Graft And Corrupt Practices Act for allegedly entering into an anomalous
contract for the purchase of computer hardware and accessories with the Systems Plus, Incorporated.

It appears that four years prior to filing of the information before the Sandiganbayan, petitioners were
merely directed to submit a point-by-point comment under oath on the allegations in a civil case filed
against them before the RTC and on the allegations in an unverified complaint filed before the
Ombudsman by the Anti-Graft League. Petitioners had no inkling that they were being subjected to a
preliminary investigation as in fact there was no indication in the order that a preliminary investigation was
being conducted.
Petitioners filed a motion a motion for reconsideration alleging among others that they were deprived of
their right to a preliminary investigation, due process and the speedy disposition of their case, which the
Sandiganbayan denied. They filed a motion to quash but the same was denied by the Sandiganbayan.

Hence this petition.

ISSUE: W/N the petitioners’ right to speedy trial was violated by the inordinate delay in the
conduct of the preliminary investigation?

HELD: YES. The preliminary investigation of the charges against petitioners has been conducted not in
the manner laid down in Administrative Order No. 07. The inordinate delay in the conduct of the
“preliminary investigation” infringed upon their constitutionally guaranteed right to a speedy disposition of
their case.[22] In Tatad vs. Sandiganbayan,[23] we held that an undue delay of close to three (3) years in
the termination of the preliminary investigation in the light of the circumstances obtaining in that case
warranted the dismissal of the case.

Petitioners in this case, however, could not have urged the speedy resolution of their case because they
were completely unaware that the investigation against them was still on-going. Peculiar to this case, we
reiterate, is the fact that petitioners were merely asked to comment, and not file counter-affidavits which is
the procedure to follow in a preliminary investigation. After giving their explanation and after four long
years of being in the dark, petitioners, naturally, had reason to assume that the charges against them had
already been dismissed.

Finally, under the facts of the case, there is no basis in the law or in fact to charge petitioners for violation
of Sec. 3(g) of R.A. No. 3019. To establish probable cause against the offender for violation of Sec. 3(g),
the following elements must be present: (1) the offender is a public officer; (2) he entered into a contract
or transaction in behalf of the government; (3) the contract or transaction is grossly and manifestly
disadvantageous to the government.

Leviste v. Alameda, et. al., G.R. No. 182677, Aug. 3, 2010

Crim Pro - Rule 110

Facts:
On January 16, 2007, an Information was filed against Jose Antonio Leviste charging him with homicide
for the death of Rafael de las Alas on January 12, 2007 before the RTC of Makati. The private
complainants-heirs of de las Alas filed an Urgent Omnibus Motion praying 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 Order granting the motion
by the complainants, thus, allowing the prosecution to conduct a reinvestigation. Later, the trial court
issued the other order that admitted the Amended Information for murder and directed the issuance of a
warrant of arrest. Petitioner questioned these two orders before the appellate court.

Upon arraignment, the petitioner refused to plead. The trial court entered the plea of "not guilty" for
him. Prior to this, the petitioner filed an Urgent Application for Admission to Bail Ex Abundanti Cautela,
which the trial court granted on the ground that the evidence of guilt of the crime of murder is not strong.
The trial court went on to try the petitioner under the Amended Information. Then, the trial court found the
petitioner guilty of homicide. From the trial court's decision, the petitioner filed an appeal to the CA. The
appellate court confirmed the decision of the trial court. The petitioner's motion for reconsideration was
denied. Hence, this petition to the SC.

Issue: Whether or not 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.

Held: Yes. 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 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. here 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.

What is essential is that petitioner was placed on guard to defend himself from the charge of murder 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.