SECOND DIVISION

TEODORO C. BORLONGAN, JR., CORAZON M. BEJASA, ARTURO E.MANUEL, JR., ERIC L. LEE, P.SIERVO H. DIZON, BENJAMIN DE LEON, DELFIN C. GONZALES, JR., and BEN YU LIM, JR.,

Petitioners,

- versus -

MAGDALENO M. PEÑA and HON.MANUEL Q. LIMSIACO, JR., as Judge Designate of the Municipal Trial Court in Cities, Bago City, Respondents.

G.R. No. 143591

Present:

BRION, J., Acting Chairperson,DEL CASTILLO, VILLARAMA, JR.,*PEREZ, andMENDOZA, JJ.**

Promulgated:

May 5, 2010

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D E C I S I O N

PEREZ, J.:

The pivotal issue in this case is whether or not the Court of Appeals, in

its Decision1[1] dated 20 June 2000 in CA-G.R. SP No. 49666, is correct when

it dismissed the petition for certiorari filed by petitioners Teodoro C.

Borlongan, Jr., Corazon M. Bejasa, Arturo E. Manuel, Jr., Benjamin de Leon, P.

Siervo H. Dizon, Delfin C. Gonzales, Jr., Eric L. Lee and Ben Yu Lim, Jr., and

ruled that the Municipal Trial Court in Cities (MTCC), Bago City, did not

gravely abuse its discretion in denying the motion for reinvestigation and

recall of the warrants of arrest in Criminal Case Nos. 6683, 6684, 6685, and

6686.

The factual antecedents of the case are as follows:

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Respondent Atty. Magdaleno M. Peña (Atty. Peña) instituted a civil case

for recovery of agent’s compensation and expenses, damages, and

attorney’s fees2[2] against Urban Bank and herein petitioners, before the

Regional Trial Court (RTC) of Negros Occidental, Bago City. The case was

raffled to Branch 62 and was docketed as Civil Case No. 754. Atty. Peña

anchored his claim for compensation on the Contract of Agency3[3] allegedly

entered into with the petitioners, wherein the former undertook to perform

such acts necessary to prevent any intruder and squatter from unlawfully

occupying Urban Bank’s property located along Roxas Boulevard, Pasay City.

Petitioners filed a Motion to Dismiss4[4] arguing that they never appointed the

respondent as agent or counsel. Attached to the motion were the following

documents: 1) a Letter5[5] dated 19 December 1994 signed by Herman Ponce

and Julie Abad on behalf of Isabela Sugar Company, Inc. (ISCI), the original

owner of the subject property; 2) an unsigned Letter6[6] dated 7 December

1994 addressed to Corazon Bejasa from Marilyn G. Ong; 3) a Letter7[7] dated

9 December 1994 addressed to Teodoro Borlongan, Jr. and signed by Marilyn

G. Ong; and 4) a Memorandum8[8] dated 20 November 1994 from Enrique

Montilla III. Said documents were presented in an attempt to show that the

respondent was appointed as agent by ISCI and not by Urban Bank or by the

petitioners.

In view of the introduction of the above-mentioned documents, Atty.

Peña filed his Complaint-Affidavit9[9] with the Office of the City Prosecutor,

Bago City.10[10] He claimed that said documents were falsified because the

alleged signatories did not actually affix their signatures, and the signatories

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were neither stockholders nor officers and employees of ISCI.11[11] Worse,

petitioners introduced said documents as evidence before the RTC knowing

that they were falsified.

In a Resolution12[12] dated 24 September 1998, the City Prosecutor

found probable cause for the indictment of petitioners for four (4) counts of

the crime of Introducing Falsified Documents, penalized by the second

paragraph of Article 172 of the Revised Penal Code. The City Prosecutor

concluded that the documents were falsified because the alleged signatories

untruthfully stated that ISCI was the principal of the respondent; that

petitioners knew that the documents were falsified considering that the

signatories were mere dummies; and that the documents formed part of the

record of Civil Case No. 754 where they were used by petitioners as evidence

in support of their motion to dismiss, and then adopted in their answer and in

their Pre-Trial Brief.13[13] Subsequently, the corresponding Informations14[14]

were filed with the MTCC, Bago City. The cases were docketed as Criminal

Case Nos. 6683, 6684, 6685, and 6686. Thereafter, Judge Primitivo Blanca

issued the warrants15[15] for the arrest of the petitioners.

On 1 October 1998, petitioners filed an Omnibus Motion to Quash,

Recall Warrants of Arrest and/or For Reinvestigation.16[16] Petitioners insisted

that they were denied due process because of the non-observance of the

proper procedure on preliminary investigation prescribed in the Rules of

Court. Specifically, they claimed that they were not afforded the right to

submit their counter-affidavit. Then they argued that since no such counter-

affidavit and supporting documents were submitted by the petitioners, the

trial judge merely relied on the complaint-affidavit and attachments of the

respondent in issuing the warrants of arrest, also in contravention with the

Rules of Court. Petitioners further prayed that the information be quashed

for lack of probable cause. Moreover, one of the accused, i.e., Ben Lim, Jr., is

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not even a director of Urban Bank, contrary to what complainant stated.

Lastly, petitioners posited that the criminal cases should have been

suspended on the ground that the issue being threshed out in the civil case

is a prejudicial question.

In an Order17[17] dated 13 November 1998, the MTCC denied the

omnibus motion primarily on the ground that preliminary investigation was

not available in the instant case – which fell within the jurisdiction of the first-

level court. The court, likewise, upheld the validity of the warrant of arrest,

saying that it was issued in accordance with the Rules of Court. Besides, the

court added, petitioners could no longer question the validity of the warrant

since they already posted bail. The court also believed that the issue

involved in the civil case was not a prejudicial question, and, thus, denied the

prayer for suspension of the criminal proceedings. Lastly, the court was

convinced that the Informations contained all the facts necessary to

constitute an offense.

Petitioners immediately instituted a special civil action for Certiorari

and Prohibition with Prayer for Writ of Preliminary Injunction and Temporary

Restraining Order (TRO) before the Court of Appeals, ascribing grave abuse

of discretion amounting to lack or excess of jurisdiction on the part of the

MTCC in issuing and not recalling the warrants of arrest, reiterating the

arguments in their omnibus motion.18[18] They, likewise, questioned the

court’s conclusion that by posting bail, petitioners already waived their right

to assail the validity of the warrants of arrest.

On 20 June 2000, the Court of Appeals dismissed the petition.19[19]

Thus, petitioners filed the instant petition for review on certiorari under Rule

45 of the Rules of Court, raising the following issues:

A.Where the offense charged in a criminal complaint is not

cognizable by the Regional Trial Court and not covered by the Rule on Summary Procedure, is the finding of probable cause required for the filing of an Information in court?

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If the allegations in the complaint-affidavit do not establish probable cause, should not the investigating prosecutor dismiss the complaint, or at the very least, require the respondent to submit his counter-affidavit?

B.Can a complaint-affidavit containing matters which are not

within the personal knowledge of the complainant be sufficient basis for the finding of probable cause?

C.Where there is offense charged in a criminal complaint is

not cognizable by the Regional Trial Court and not covered by the Rule on Summary Procedure, and the record of the preliminary investigation does not show the existence of probable cause, should not the judge refuse to issue a warrant of arrest and dismiss the criminal case, or at the very least, require the accused to submit his counter-affidavit in order to aid the judge in determining the existence of probable cause?

D.Can a criminal prosecution be restrained?

E.Can this Honorable Court itself determine the existence of

probable cause?20[20]

On the other hand, respondent contends that the issues raised by the

petitioners had already become moot and academic when the latter posted

bail and were already arraigned.

On 2 August 2000, this Court issued a TRO21[21] enjoining the judge of

the MTCC from proceeding in any manner with Criminal Case Nos. 6683 to

6686, effective during the entire period that the case is pending before, or

until further orders of, this Court.

We will first discuss the issue of mootness.

The issues raised by the petitioners have not been mooted by the fact

that they had posted bail and were already arraigned.

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It appears from the records that upon the issuance of the warrant of

arrest, petitioners immediately posted bail as they wanted to avoid

embarrassment, being then the officers of Urban Bank. On the scheduled

date for the arraignment, despite the petitioners’ refusal to enter a plea, the

court a quo entered a plea of “Not Guilty” for them.

The erstwhile ruling of this Court was that posting of bail constitutes a

waiver of any irregularity in the issuance of a warrant of arrest, that has

already been superseded by Section 26, Rule 114 of the Revised Rule of

Criminal Procedure. The principle that the accused is precluded from

questioning the legality of the arrest after arraignment is true only if he

voluntarily enters his plea and participates during trial, without previously

invoking his objections thereto.22[22]

As held in Okabe v. Hon. Gutierrez:23[23]

It bears stressing that Section 26, Rule 114 of the Revised Rules on Criminal Procedure is a new one, intended to modify previous rulings of this Court that an application for bail or the admission to bail by the accused shall be considered as a waiver of his right to assail the warrant issued for his arrest on the legalities or irregularities thereon. The new rule has reverted to the ruling of this Court in People v. Red. The new rule is curative in nature because precisely, it was designed to supply defects and curb evils in procedural rules. Hence, the rules governing curative statutes are applicable. Curative statutes are by their essence retroactive in application. Besides, procedural rules as a general rule operate retroactively, even without express provisions to that effect, to cases pending at the time of their effectivity, in other words to actions yet undetermined at the time of their effectivity. Before the appellate court rendered its decision on January 31, 2001, the Revised Rules on Criminal Procedure was already in effect. It behoved the appellate court to have applied the same in resolving the petitioner’s petition for certiorari and her motion for partial reconsideration.

Moreover, considering the conduct of the petitioner after posting her personal bail bond, it cannot be argued that she waived her right to question the finding of probable cause and to assail the warrant of arrest issued against her by the respondent judge. There must be clear and convincing proof that the petitioner had an actual intention to relinquish her 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

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voluntarily and unequivocally relinquish the particular right that no other explanation of his conduct is possible. x x x.

Herein petitioners filed the Omnibus Motion to Quash, Recall Warrants

of Arrest and/or For Reinvestigation on the same day that they posted bail.

Their bail bonds likewise expressly contained a stipulation that they were not

waiving their right to question the validity of their arrest.24[24] On the date of

their arraignment, petitioners refused to enter their plea due to the fact that

the issue on the legality of their arrest is still pending with the Court. Thus,

when the court a quo entered a plea of not guilty for them, there was no

valid waiver of their right to preclude them from raising the same with the

Court of Appeals or this Court. The posting of bail bond was a matter of

imperative necessity to avert their incarceration; it should not be deemed as

a waiver of their right to assail their arrest. The ruling to which we have

returned in People v. Red25[25] stated:

x x x The present defendants were arrested towards the end of January, 1929, on the Island and Province of Marinduque by order of the judge of the Court of First Instance of Lucena, Tayabas, at a time when there were no court sessions being held in Marinduque. In view of these circumstances and the number of the accused, it may properly be held that the furnishing of the bond was prompted by the sheer necessity of not remaining in detention, and in no way implied their waiver of any right, such as the summary examination of the case before their detention. That they had no intention of waiving this right is clear from their motion of January 23, 1929, the same day on which they furnished a bond, and the fact that they renewed this petition on February 23, 1929, praying for the stay of their arrest for lack of the summary examination; the first motion being denied by the court on January 24, 1929 (G.R. No. 33708, page 8), and the second remaining undecided, but with an order to have it presented in Boac, Marinduque.

Therefore, the defendants herein cannot be said to have waived the right granted to them by section 13, General Order No. 58, as amended by Act No. 3042.

The rest of the issues raised by the petitioners may be grouped into

two, which are: (1) the procedural aspect, i.e., whether the prosecution and

the court a quo properly observed the required procedure in the instant

case, and, (2) the substantive aspect, which is whether there was probable

cause to pursue the criminal cases to trial.

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THE PROCEDURAL ASPECT:

Petitioners contend that they were denied due process as they were

unable to submit their counter-affidavits and were not accorded the right to

a preliminary investigation. Considering that the complaint of Atty. Peña was

filed in September 1998, the rule then applicable was the 1985 Rules of

Criminal Procedure.

The provisions of the 1985 Rules of Criminal Procedure relevant to the

issue are Sections 1, 3(a) and 9(a) of Rule 112, to wit:

Section 1. Definition. Preliminary investigation is an inquiry or proceeding for the purpose of determining whether there is sufficient ground to engender a well founded belief that a crime cognizable by the Regional Trial Court has been committed and that the respondent is probably guilty thereof, and should be held for trial.

Sec. 3. Procedure. Except as provided for in Section 7 hereof, no complaint or information for an offense cognizable by the Regional Trial Court shall be filed without a preliminary investigation having been first conducted in the following manner:

(a) The complaint shall state the known address of the respondent and be accompanied by affidavits of the complainant and his witnesses as well as other supporting documents, in such number of copies as there are respondents, plus two (2) copies for the official file. The said affidavits shall be sworn to before any fiscal, state prosecutor or government official authorized to administer oath, or, in their absence or unavailability, a notary public, who must certify that he personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits.

Sec. 9. Cases not falling under the original jurisdiction of the Regional Trial Courts nor covered by the Rule on Summary Procedure.   (a) Where filed with the fiscal.— If the complaint is filed directly with the fiscal or state prosecutor, the procedure outlined in Section 3(a) of this Rule shall be observed. The fiscal shall take appropriate action based on the affidavits and other supporting documents submitted by the complainant. (underscoring supplied)

The crime to which petitioners were charged was defined and

penalized under second paragraph of Article 172 in relation to Article 171 of

the Revised Penal Code.

Art. 172. Falsification by private individual and use of falsified documents. — The penalty of prision correccional in its medium and maximum periods and a fine of not more than P5,000 pesos shall be imposed upon:

1. Any private individual who shall commit any of the falsifications enumerated in the next preceding article in any public or official document or letter of exchange or any other kind of commercial document; and

2. Any person who, to the damage of a third party, or with the intent to cause such damage, shall in any private document commit any of the acts of falsification enumerated in the next preceding article.

Any person who shall knowingly introduce in evidence in any judicial proceeding or to the damage of another or who, with the intent to cause such damage, shall use any of the false documents embraced in the next preceding article or in any of the foregoing subdivisions of this article, shall be punished by the penalty next lower in degree.

Prision correccional in its medium and maximum periods translates to

imprisonment of 2 years, 4 months and 1 day.26[26] The next lower in degree

to prision correccional is arresto mayor in its maximum period to prision

correccional in its minimum period which translates to 4 months and 1 day to

2 years and 4 months27[27] of imprisonment. Since the crime committed is

not covered by the Rules of Summary Procedure,28[28] the case falls within the

exclusive jurisdiction of the first level courts but applying the ordinary rules.

In such instance, preliminary investigation as defined in Section 1, Rule 112

of the 1985 Rules of Criminal Procedure is not applicable since such section

covers only crimes cognizable by the RTC. That which is stated in Section

9(a) is the applicable rule.

Under this Rule, while probable cause should first be determined

before an information may be filed in court, the prosecutor is not mandated

to require the respondent to submit his counter-affidavits to oppose the 26

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complaint. In the determination of probable cause, the prosecutor may

solely rely on the complaint, affidavits and other supporting documents

submitted by the complainant. If he does not find probable cause, the

prosecutor may dismiss outright the complaint or if he finds probable cause

or sufficient reason to proceed with the case, he shall issue a resolution and

file the corresponding information.

The complaint of respondent, verbatim, is as follows:

COMPLAINT – AFFIDAVIT

I, MAGDALENO M. PEÑA, Filipino, of legal age, with address at Brgy. Ubay, Pulupandan, Negros Occidental, after having been sworn in accordance with law hereby depose and state:

1. I am the Plaintiff in Civil Case No. 754 pending with the Regional Trial Court of Bago City entitled “Atty. Magdaleno M. Peña v. Urban Bank, et al” Impleaded therein as defendants of the board of the bank, namely, Teodoro Borlongan, Delfin Gonzales, Jr., Benjamin De Leon, P. Siervo Dizon, Eric Lee, Ben Lim Jr., Corazon Bejasa and Arturo Manuel.(underlining ours)

2. I filed the said case to collect my fees as agent of Urban Bank, Inc.(hereinafter referred to as the “bank”) in ridding a certain parcel of land in Pasay City of squatters and intruders. A certified true copy of the Complaint in the said case is hereto attached as Annex “A”.

3. In the Motion to Dismiss dated 12 March 1996 (a certified true copy of which is attached as Annex “B”), Answer dated 28 October 1996 (Annex “C”), and Pre-Trial Brief dated 28 January 1997 (Annex “D”) filed by the bank and the respondent members of the board, the said respondents used as evidence the following documents:

a. Letter dated 19 December 1994 supposedly signed by a certain Herman Ponce and Julie Abad for Isabela Sugar Company (ISC) (a copy of which is attached as Annex “E”), which states:

December 19, 1994

Urban BankUrban Avenue, MakatiMetro Manila

Gentlemen:

This has reference to your property located among Roxas Boulevard, Pasay City which you purchased from Isabela Sugar

Company under a Deed of Absolute Sale executed on December 1, 1994.

In line with our warranties as the Seller of the said property and our undertaking to deliver to you the full and actual possession and control of said property, free from tenants, occupants or squatters and from any obstruction or impediment to the free use and occupancy of the property and to prevent the former tenants or occupants from entering or returning to the premises. In view of the transfer of ownership of the property to Urban Bank, it may be necessary for Urban Bank to appoint Atty. Peña likewise as its authorized representative for purposes of holding/maintaining continued possession of the said property and to represent Urban Bank in any court action that may be instituted for the abovementioned purposes.

It is understood that any attorney’s fees, cost of litigation and any other charges or expenses that may be incurred relative to the exercise by Atty. Peña of his abovementioned duties shall be for the account of Isabela Sugar Company and any loss or damage that may be incurred to third parties shall be answerable by Isabela Sugar Company.

Very truly yours,

Isabela Sugar Company

By:

HERMAN PONCE

JULIE ABAD

b. Memorandum dated 7 December 1994 supposedly executed by a certain Marilyn Ong on behalf of ISC, a copy of which is hereto attached as annex “F”, which states:

December 7, 1994

To: ATTY. CORA BEJASAFrom: MARILYN G. ONG

RE: ISABELA SUGAR CO., INC.

Atty. Magdaleno M. Peña, who has been assigned by Isabela Sugar Company inc. to take charge of inspecting the tenants would like to request an authority similar to this from the Bank to new owners. Can you please issue something like this today as he (unreadable) this.

b. Letter dated 9 December 1994 supposedly executed by the same Marilyn Ong, a copy of which is hereto attached as Annex “G”, which states:

December 9, 1994

Atty. Ted BorlonganURBAN BANK OF THE PHILIPPINESMAKATI, METRO MANILA

Attention: Mr. Ted BorlonganDear Mr. Borlongan

I would like to request for an authority from Urban Bank per attached immediately – as the tenants are questioning authority of the people who are helping us to take possession of the property.

Marilyn Ong

c. Memorandum dated 20 November 1994, copy of which is attached as annex “H”, which states:

MEMORANDUMTo: Atty. Magadaleno M. PeñaDirector

From: Enrique C. Montilla IIIPresident

Date: 20 November 1994

You are hereby directed to recover and take possession of the property of the corporation situated at Roxas Boulevard covered by TCT No. 5382 of the Registry of Deeds for Pasay City, immediately upon the expiration of the contract of lease over the said property on 29 November 1994. For this purpose, you are authorized to engage the services of security guards to protect the property against intruders. You may also engage the services of a lawyer in case there is a need to go to court to protect the said property of the corporation. In addition, you may take whatever steps or measures are necessary to ensure our continued possession of the property.

ENRIQUE C. MONTILLA IIIPresident

4. The respondent member of the board of the bank used and introduced the aforestated documents as evidence in the civil case knowing that the same are falsified. They used thae said documents to justify their refusal to pay my agent’s fees, to my damage and prejudice.

5. The 19 December 1994 letter (Annex ‘E”) is a falsified document, in that the person who supposedly executed the letter on behalf of ISC, a certain Herman Ponce and Julie Abad did not actually affix their signatures on the document. The execution of the letter was merely simulated by making it appear that Ponce and Abad executed the letter on behalf of ISC when they did not in fact do so.

6. No persons by the name of Herman Ponce and Julie Abad were ever stockholders, officers, employees or representatives of ISC. In the letter, Herman Ponce was represented to be the President of ISC and Julie Abad, the Corporate Secretary. However, as of 19 December 1994, the real President of plaintiff was Enrique Montilla, III and Cristina Montilla was the Corporate Secretary. A copy of the Minutes of the Regular Meeting of ISC for the year 1994, during which Montilla, et al. Were elected is hereto attached as Annex “I”. On the otherhand, a list of the stockholders of ISC on or about the time of the transaction is attached as Annex “J”.

7. The same holds true with respect to the Memorandum dated 7 December 1994 and athe letter dated 9 December 1994 allegedly written by a ceratin Marilyn Ong. Nobody by the said name was ever a stockholder of ISC.

8. Lastly, with respect to the supposed Memorandum issued by Enrique Montilla, III his signature thereon was merely forged by respondents. Enrique Montilla III, did not affix his signature on any such document.

9. I am executing this affidavit for the purpose of charging Teodoro C. Borlongan, Corazon M. Bejasa and Arturo E. Manuel, Delfin C. Gonzales Jr., Benjamin L. De Leon, P. Siervo H. Dizon and Eric Lee, with the crime of use of falsified documents under Artilce 172, paragraph 2, of the Revised Penal Code.(underlining ours)

10. I am likewise executing this affidavit for whatever legal purpose it may serve.

FURTHER AFFIANT SAYETH NAUGHT.

Sgd. MAGDALENO M. PEÑA

It is evident that in the affidavit-complaint, specifically in paragraph 1,

respondent merely introduced and identified “the board of the bank, namely,

Teodoro Borlongan, Jr., Delfin Gonzales, Jr., Benjamin De Leon, P. Siervo

Dizon, Eric Lee, Ben Lim, Jr., Corazon Bejasa and Arturo Manuel, Sr.”

However, in the accusatory portion of the complaint which is paragraph

number 9, Mr. Ben Lim, Jr. was not included among those charged with the

crime of use of falsified documents under Article 172, paragraph 2, of the

Revised Penal Code. The omission indicates that respondent did not intend

to criminally implicate Mr. Ben Lim, Jr., even as he was acknowledged to be a

member of the board. And there was no explanation in the Resolution and

Information by the City Prosecutor why Mr. Ben Lim, Jr. was included.

Moreover, as can be gleaned from the body of the complaint and the specific

averments therein, Mr. Ben Lim, Jr. was never mentioned.

The City Prosecutor should have cautiously reviewed the complaint to

determine whether there were inconsistencies which ought to have been

brought to the attention of the respondent or, on his own, considered for due

evaluation. It is a big mistake to bring a man to trial for a crime he did not

commit.

Prosecutors are endowed with ample powers in order that they may

properly fulfill their assigned role in the administration of justice. It should

be realized, however, that when a man is hailed to court on a criminal

charge, it brings in its wake problems not only for the accused but for his

family as well. Therefore, it behooves a prosecutor to weigh the evidence

carefully and to deliberate thereon to determine the existence of a prima

facie case before filing the information in court. Anything less would be a

dereliction of duty.29[29]

Atty. Peña, in his Second Manifestation30[30] dated 16 June 1999,

averred that petitioners, including Mr. Ben Lim, Jr., were already estopped

from raising the fact that Mr. Ben Lim, Jr. was not a member of the board of

directors of Urban Bank, as the latter participated and appeared through

counsel in Civil Case No. 754 without raising any opposition. However, this

does not detract from the fact that the City Prosecutor, as previously

discussed, did not carefully scrutinize the complaint of Atty. Peña, which did

not charge Mr. Ben Lim, Jr. of any crime.

What tainted the procedure further was that the Judge issued a

warrant for the arrest of the petitioners, including, Mr. Ben Lim, Jr. despite

the filing of the Omnibus Motion to Quash, Recall Warrants of Arrest and/or

For Reinvestigation raising among others the issue that Mr. Ben Lim, Jr., was

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not even a member of the board of directors. With the filing of the motion,

the judge is put on alert that an innocent person may have been included in

the complaint. In the Order31[31] dated 13 November 1998, in denying the

motion to quash, Judge Primitivo Blanca ruled that:

Courts in resolving a motion to quash cannot consider facts contrary to those alleged in the information or which do not appear on the face of the information because said motion is hypothethical admission of the facts alleged in the information x x x. (citations omitted.)

We cannot accept as mere oversight the mistake of respondent judge

since it was at the expense of liberty. This cannot be condoned.

In the issuance of a warrant of arrest, the mandate of the Constitution

is for the judge to personally determine the existence of probable cause:

Section 2, Article III of the Constitution provides:

Section 2. 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.

Corollary thereto, Section 9(b) of the 1985 Rules of Criminal Procedure

provides:

Sec. 9. Cases not falling under the original jurisdiction of the Regional Trial Courts nor covered by the Rule on Summary Procedure.

(a) x x x.

(b) Where filed directly with the Municipal Trial Court. — If the complaint or information is filed directly with the Municipal Trial Court, the procedure provided for in Section 3(a) of this Rule shall likewise be observed. If the judge finds no sufficient ground to hold the respondent for trial, he shall dismiss the complaint or information. Otherwise, he shall issue a warrant of arrest after personally examining in writing and under oath the complainant and his witnesses in the form of searching questions and answers.

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Enshrined in our Constitution is the rule that “[n]o x x x 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 x x x the

persons x x x to be seized.”32[32] Interpreting the words “personal

determination,” we said in Soliven v. Makasiar33[33] that it does not thereby

mean that judges are obliged to conduct the personal examination of the

complainant and his witnesses themselves. To require thus would be to

unduly laden them with preliminary examinations and investigations of

criminal complaints instead of concentrating on hearing and deciding cases

filed before them. Rather, what is emphasized merely is the exclusive and

personal responsibility of the issuing judge to satisfy himself as to the

existence of probable cause. To this end, he may: (a) personally evaluate

the report and the supporting documents submitted by the prosecutor

regarding the existence of probable cause and, on the basis thereof, issue a

warrant of arrest; or (b) if on the basis thereof he finds no probable cause,

disregard the prosecutor's report and require the submission of supporting

affidavits of witnesses to aid him in determining its existence. What he is

never allowed to do is to follow blindly the prosecutor's bare

certification as to the existence of probable cause. Much more is

required by the constitutional provision. Judges have to go over the

report, the affidavits, the transcript of stenographic notes if any,

and other documents supporting the prosecutor's certification.

Although the extent of the judge's personal examination depends on the

circumstances of each case, to be sure, he cannot just rely on the bare

certification alone but must go beyond it. This is because the warrant

of arrest issues not on the strength of the certification standing alone but

because of the records which sustain it.34[34] He should even call for the

complainant and the witnesses to answer the court's probing questions when

the circumstances warrant.35[35]

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An arrest without a probable cause is an unreasonable seizure of a

person, and violates the privacy of persons which ought not to be intruded

by the State.36[36]

Measured against the constitutional mandate and established rulings,

there was here a clear abdication of the judicial function and a clear

indication that the judge blindly followed the certification of a city prosecutor

as to the existence of probable cause for the issuance of a warrant of arrest

with respect to all of the petitioners. The careless inclusion of Mr. Ben Lim,

Jr., in the warrant of arrest gives flesh to the bone of contention of

petitioners that the instant case is a matter of persecution rather than

prosecution.37[37] On this ground, this Court may enjoin the criminal cases

against petitioners. As a general rule, criminal prosecutions cannot be

enjoined. However, there are recognized exceptions which, as summarized

in Brocka v. Enrile,38[38] are:

a. To afford adequate protection to the constitutional rights of the accused;39[39]

b. When necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions;40[40]

c. When there is a prejudicial question which is sub judice;41[41]

d. When the acts of the officer are without or in excess of authority;42[42]

e. Where the prosecution is under an invalid law, ordinance or regulation;43[43]

f. When double jeopardy is clearly apparent;44[44]

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40

41

42

43

44

g. Where the court had no jurisdiction over the offense;45[45]

h. Where it is a case of persecution rather than prosecution;46[46]

i. Where the charges are manifestly false and motivated by the lust for vengeance;47[47] and

j. When there is clearly no prima facie case against the accused and a motion to quash on that ground has been denied.48[48]

THE SUBSTANTIVE ASPECT:

Petitioners were charged with violation of par. 2, Article 172 of the

Revised Penal Code or Introduction of Falsified Document in a judicial

proceeding. The elements of the offense are as follows:

1. That the offender knew that a document was falsified by another person.

2. That the false document is embraced in Article 171 or in any subdivisions Nos. 1 or 2 of Article 172.

3. That he introduced said document in evidence in any judicial proceeding.49[49]

The falsity of the document and the defendants’ knowledge of its

falsity are essential elements of the offense. The Office of the City

Prosecutor filed the Informations against the petitioners on the basis of the

Complaint-Affidavit of respondent Atty. Peña, attached to which were the

documents contained in the Motion to Dismiss filed by the petitioners in Civil

Case No. 754. Also included as attachments to the complaint were the

Answers, Pre-Trial Brief, the alleged falsified documents, copy of the regular

meetings of ISCI during the election of the Board of Directors and the list of

ISCI Stockholders.50[50] Based on these documents and the complaint-

affidavit of Atty. Peña, the City Prosecutor concluded that probable cause for

the prosecution of the charges existed. On the strength of the same

documents, the trial court issued the warrants of arrest.45

46

47

48

49

50

This Court, however, cannot find these documents sufficient to support

the existence of probable cause.

Probable cause is such set of facts and circumstances as would lead a

reasonably discreet and prudent man to believe that the offense charged in

the Information or any offense included therein has been committed by the

person sought to be arrested. In determining probable cause, the average

man weighs the facts and circumstances without restoring to the calibrations

of the rules of evidence of which he has no technical knowledge. He relies

on common sense. A finding of probable cause needs only to rest on

evidence showing that, more likely than not, a crime has been committed

and that it was committed by the accused. Probable cause demands more

than suspicion; it requires less than evidence that would justify conviction.51

[51]

As enunciated in Baltazar v. People,52[52] 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.

The purpose of the mandate of the judge to first determine probable

cause for the arrest of the accused is to insulate from the very start those

falsely charged with crimes from the tribulations, expenses and anxiety of a

public trial.53[53]

We do not see how it can be concluded that the documents mentioned

by respondent in his complaint-affidavit were falsified. In his complaint, Atty.

Peña stated that Herman Ponce, Julie Abad and Marilyn Ong, the alleged

signatories of the questioned letters, did not actually affix their signatures

therein; and that they were not actually officers or stockholders of ISCI.54[54]

He further claimed that Enrique Montilla’s signature appearing in another

51

52

53

54

memorandum addressed to respondent was forged.55[55] These averments

are mere assertions which are insufficient to warrant the filing of the

complaint or worse the issuance of warrants of arrest. These averments

cannot be considered as proceeding from the personal knowledge of herein

respondent who failed to, basically, allege that he was present at the time of

the execution of the documents. Neither was there any mention in the

complaint-affidavit that herein respondent was familiar with the signatures of

the mentioned signatories to be able to conclude that they were forged.

What Atty. Peña actually stated were but sweeping assertions that the

signatories are mere dummies of ISCI and that they are not in fact officers,

stockholders or representatives of the corporation. Again, there is no

indication that the assertion was based on the personal knowledge of the

affiant.

The reason for the requirement that affidavits must be based on

personal knowledge is to guard against hearsay evidence. A witness,

therefore, may not testify as what he merely learned from others either

because he was told or read or heard the same. Such testimony is

considered hearsay and may not be received as proof of the truth of what he

has learned.56[56] Hearsay is not limited to oral testimony or statements; the

general rule that excludes hearsay as evidence applies to written, as well as

oral statements.57[57]

The requirement of personal knowledge should have been strictly

applied considering that herein petitioners were not given the opportunity to

rebut the complainant’s allegation through counter-affidavits.

Quite noticeable is the fact that in the letter dated 19 December 1994

of Herman Ponce and Julie Abad, neither of the two made the representation

that they were the president or secretary of ISCI. It was only Atty. Peña who

asserted that the two made such representation. He alleged that Marilyn

Ong was never a stockholder of ISCI but he did not present the stock and

transfer book of ISCI. And, there was neither allegation nor proof that

Marilyn Ong was not connected to ISCI in any other way. Moreover, even if

55

56

57

Marilyn Ong was not a stockholder of ISCI, such would not prove that the

documents she signed were falsified.

The Court may not be compelled to pass upon the correctness of the

exercise of the public prosecutor’s function without any showing of grave

abuse of discretion or manifest error in his findings.58[58] Considering,

however, that the prosecution and the court a quo committed manifest

errors in their findings of probable cause, this Court therefore annuls their

findings.

Our pronouncement in Jimenez v. Jimenez59[59] as reiterated in Baltazar

v. People is apropos:

It is x x x imperative upon the fiscal or the judge as the case may be, to relieve the accused from the pain of going through a trial once it is ascertained that the evidence is insufficient to sustain a prima facie case or that no probable cause exists to form a sufficient belief as to the guilt of the accused. Although there is no general formula or fixed rule for the determination of probable cause since the same must be decided in the light of the conditions obtaining in given situations and its existence depends to a large degree upon the finding or opinion of the judge conducting the examination, such a finding should not disregard the facts before the judge nor run counter to the clear dictates of reasons. The judge or fiscal, therefore, should not go on with the prosecution in the hope that some credible evidence might later turn up during trial for this would be a flagrant violation of a basic right which the courts are created to uphold. It bears repeating that the judiciary lives up to its mission by visualizing and not denigrating constitutional rights. So it has been before. It should continue to be so.

On the foregoing discussion, we find that the Court of Appeals erred in

affirming the findings of the prosecutor as well as the court a quo as to the

existence of probable cause. The criminal complaint against the petitioners

should be dismissed.

WHEREFORE, the petition is hereby GRANTED. The Decision of the

Court of Appeals dated 20 June 2000, in CA-G.R. SP No. 49666, is REVERSED

and SET ASIDE. The Temporary Restraining Order dated 2 August 2000 is

hereby made permanent. Accordingly, the Municipal Trial Court in Cities,

58

59

Negros Occidental, Bago City, is hereby DIRECTED to DISMISS Criminal

Case Nos. 6683, 6684, 6685 and 6686.

SO ORDERED

THIRD DIVISION

[G.R. No. 175162, October 29, 2008]

ATTY. ERNESTO A. TABUJARA III AND CHRISTINE S. DAYRIT, PETITIONERS, VS. PEOPLE OF THE PHILIPPINES AND DAISY AFABLE, RESPONDENTS.

D E C I S I O N

CHICO-NAZARIO, J.:

This petition assails the 24 February 2004 Decision of the Court of Appeals in CA-G.R. SP No. 63280 denying petitioners' petition for review and directing the Municipal Trial Court of Meycauayan, Bulacan, Branch 11, to proceed with the trial of Criminal Cases Nos. 99-29037 and 99-29038, as well as the 23 October 2006 Resolution denying the motion for reconsideration.

The antecedent facts are as follows:

On 17 September 1999, respondent Daisy Dadivas-Afable simultaneously filed two criminal complaints against petitioners for Grave Coercion and Trespass to Dwelling. The complaints read, thus:Art. 286 (Grave Coercion)

That on the 14th day of September 1999 at around 6:00 o'clock in the morning more or less, in Brgy. Iba, Municipality of Meycauayan, Province of Bulacan, Republic of the Philippines and within the jurisdiction of this Honorable Court, the above-named accused without authority of law, by conspiring, confederating and mutually helping to (sic) one another, did then and there willfully, unlawfully and feloniously forced to go with them one DAISY DADIVAS-AFABLE and against the latter's will.

Art. 280, par. 2 (Trespass to Dwelling)

That on the 14th day of September 1999 at around 6:00 o'clock in the morning more or less, in Brgy. Iba, Municipality of Meycauayan, Province of Bulacan, Republic of the Philippines and within the jurisdiction of this Honorable Court, the above-named accused being then a (sic) private persons, by conspiring, confederating and mutually helping to (sic) one another, did then and there willfully, unlawfully and feloniously enter the house owned by one DAISY DADIVAS-AFABLE by opened the gate and against the latter's will.[1]

On 18 October 1999, petitioners filed their Joint Counter-Affidavit.[2]

Thereafter, or on 21 December 1999, petitioner Tabujara filed a Supplemental Counter-Affidavit.[3]

Petitioners denied the allegations against them. They argued that on 14 September 1999, they went to the house of respondent to thresh out matters regarding some missing pieces of jewelry. Respondent was a former

employee of Miladay Jewels, Inc., a company owned by the Dayrits and who was then being administratively investigated in connection with missing jewelries. Despite several summons to appear, respondent went on AWOL (absence without official leave).

Judge Calixtro O. Adriatico of the Municipal Trial Court of Meycauayan, Bulacan, Branch II, conducted the preliminary examination. On 7 January 2000, he issued an Order dismissing the complaints for lack of probable cause, thus:After a careful perusal of the allegation setforth in the complaint-affidavit, taking into consideration the allegation likewise setforth in the counter-affidavit submitted by the respondents and that of their witnesses, the Court finds no probable cause to proceed with trial on the merits of the above-entitled cases.

The Court believes and so holds that the instant complaints are merely leverage to the estafa[4] case already filed against private complainant herein Daisy Afable by the Miladay Jewels Inc. wherein respondent Atty. Tabujara III is its legal counsel; while respondent Dayrit appears to be one of the officers of the said company.

As could be gleaned from the record, private complainant herein Daisy Afable is being charged with the aforestated estafa case for having allegedly embezzled several pieces of jewelry from the Miladay Jewels Inc., worth P2,177,156.00.

WHEREFORE, let these cases be dismissed for lack of probable cause.[5]

Respondent filed a Motion for Reconsideration alleging that when she filed the complaints for grave coercion and trespass to dwelling on 17 September 1999 against petitioners, no information for estafa has yet been filed against her. In fact, the information was filed on 5 October 1999.

In their Opposition to the Motion for Reconsideration, petitioners argued that even before respondent filed the criminal complaints for grave coercion and trespass to dwelling, she was already being administratively investigated for the missing jewelries; that she was ordered preventively suspended pending said investigation; that the theft of the Miladay jewels was reported to the Makati Police on 7 September 1999 with respondent Afable being named as the primary suspect; that on 17 September 1999, which corresponded to the date of filing of the criminal complaints against petitioners, the employment of respondent with Miladay, Jewels, Inc. was terminated. Petitioners further alleged that respondent filed the criminal complaints for grave coercion and trespass to dwelling as leverage to compel petitioners to withdraw the estafa case.

On 2 May 2000, Judge Adriatico issued an Order reversing his earlier findings of lack of probable cause. This time, he found probable cause to hold petitioners for trial and to issue warrants of arrest, thus:Acting on the "Motion for Reconsideration" filed by the private complainant herein on January 17, 2000, with "Opposition..." filed by the accused on January 27, 2000, taking into consideration the "Manifestation/Brief Memorandum" filed by the said private complainant on March 4, 2000, the Court found cogent reason to reconsider its order dated January 7, 2000.

The sworn allegation/statement of witness Mauro V. de Lara, which was inadvertently overlooked by the undersigned, and which states, among other

things, that said witness saw the private complainant herein being forcibly taken by three persons, referring very apparently to the accused herein, from her residence is already sufficient to establish a prima facie evidence or probable cause against the herein accused for the crimes being imputed against them. It is likewise probable that accused herein could have committed the crime charged in view of their belief that the private complainant herein had something to do with the alleged loss or embezzlement of jewelries of the Miladay Jewels.

WHEREFORE, in order to ferret out the truth/veracity of the complainant's allegation and in order not to frustrate the ends of justice, let the above-entitled cases now be set for trial.

Let therefore warrant of arrest be issued against all the accused in Criminal Case No. 99-29038 (Grave Coercions), fixing their bail for their provisional liberty in the amount of P12,000.00 for each of them.

As regard Criminal Case No. 99-29037 (Trespass to Dwelling) the same shall be governed by the Rules on Summary Procedure.[6]

Petitioners filed a motion for reconsideration insisting that the alleged affidavit of Mauro V. de Lara on which the court a quo based its findings of probable cause was hearsay because it was not sworn before Judge Adriatico; that De Lara did not personally appear before the investigating judge during preliminary investigation. However, petitioners' motion for reconsideration was denied in the Order dated 14 July 2000, thus:Acting on the "Motion for Reconsideration" filed by the accused, thru counsel. With comment from the counsel of the private complainant, the Court resolves to deny the same there being no cogent reason to reconsider the Court order dated May 2, 2000.

The Court has resolved to try the above-entitled cases on the merits so as to ferret out the truth of the private complainant's allegations and there being probable cause to warrant criminal prosecution of the same.

The accused's contention that the statement of witness Mauro de Lara is bereft of credibility and that the complaints at bar were initiated merely for harassment purposes could be ventilated well in a full blown trial.

WHEREFORE, in view of the foregoing reason, let the trial of these cases proceed as already scheduled.[7]

Petitioners moved for clarificatory hearings which were conducted on 23 August 2000 and 31 August 2000. However, before the court a quo could render a resolution based on said clarificatory hearings, petitioners filed on 15 September 2000 a petition for certiorari before the Regional Trial Court with prayer for issuance of temporary restraining order and writ of preliminary injunction.[8] Petitioners sought to annul the 2 May 2000 and 14 July 2000 Orders of the court a quo for having been issued with grave abuse of discretion. Petitioners argued that the court a quo gravely abused its discretion in issuing said Orders finding probable cause and ordering the issuance of warrants of arrest based solely on the unsworn statement of Mauro V. de Lara who never appeared during preliminary investigation and who was not personally examined by the investigating judge.

On 18 September 2000, Executive Judge Danilo A. Manalastas of the Regional Trial Court of Malolos, Bulacan, Branch 7, issued an Order [9]

granting a 72-hour temporary restraining order and enjoining the Municipal

Trial Court from proceeding with the prosecution of petitioners in Criminal Case Nos. 99-29037 and 99-29038.

The case was thereafter raffled to Branch 79 which rendered its Decision [10]

denying the petition for annulment of the 2 May 2000 and 14 July 2000 Orders of the Municipal Trial Court. The Regional Trial Court found that after conducting clarificatory hearings, the court a quo issued an Order on 18 September 2000, finding probable cause. The Regional Trial Court further ruled that any defect in the issuance of the 2 May 2000 and 14 July 2000 Orders finding probable cause based solely on the unsworn statement of Mauro V. de Lara who failed to appear during the preliminary examination and who was not personally examined by the investigating judge, was cured by the issuance of the 18 September 2000 Order. The Regional Trial Court reasoned, thus:While it is true that respondent Judge Hon. Calixto O. Adriatico dismisses both criminal cases last January 7, 2000 finding no probable cause and later on reverse himself by issuing the question Order dated May 2, 2000 alleging among others that said Judge inadvertently overlooked the statement of witness Mauro V. De Lara, the stubborn facts remain that whatever defects, or shortcomings on the parts of the respondent Judge was cured when he conducted clarificatory examination on the dates earlier mentioned in this Order.[11]

The dispositive portion of the Decision of the Regional Trial Court, reads:RESPONSIVE OF ALL THE FOREGOING, the instant Petition for the Annulment of the Orders of the respondent Judge dated May 2, 2000 and July 14, 2000 in criminal cases nos. 99-29037 and 99-29038 (MTC-Meycauayan, Branch 2) should be as it is hereby denied for lack of merit.

ACCORDINGLY, the Presiding Judge of branch II, the Hon. Calixto O. Adriatico may now proceed to hear and decide crim. Cases nos. 99-29037 and 99-29038 pending before that Court.[12]

Petitioners filed a Petition for Review before the Court of Appeals asserting that the court a quo acted with grave abuse of discretion in basing its findings of probable cause and ordering the issuance of warrants of arrest solely on the unsworn statement of Mauro De Lara who never appeared during preliminary investigation and who was not personally examined by the investigating judge. Moreover, they argued that the 18 September 2000 Order was void because it was issued by the Municipal Trial Court while the temporary restraining order issued by the Regional Trial Court enjoining the court a quo to proceed further with the criminal complaints was in force.

However, the Court of Appeals denied the petition on the ground that petitioners resorted to the wrong mode of appeal; i.e., instead of an ordinary appeal, petitioners filed a petition for review. [13] The dispositive portion of the Decision of the Court of Appeals, reads:WHEREFORE, in view of the foregoing, the instant Petition for Review is hereby DENIED. The Municipal Trial Court of Meycauayan, Bulacan, Branch II is directed to proceed with the trial of Criminal Case Nos. 99-29037 and 99-29038 and to dispose of them with deliberate dispatch.[14]

Petitioners filed a motion for reconsideration but it was denied.[15] Hence, the instant petition raising the following assignment of errors:I.

THE COURT OF APPEALS ERRED IN NOT RULING THAT THE TRIAL COURT HAD ACTED WITH GRAVE ABUSE OF DISCRETION IN BASING ITS FINDING OF PROBABLE CAUSE TO HOLD PETITIONERS FOR TRIAL ON THE MERITS AND

ISSUANCE OF WARRANTS OF ARREST AGAINST THEM, UPON AN UNSWORN STATEMENT OF A WITNESS WHO NEVER APPEARED BEFORE, NOR WAS PERSONALLY EXAMINED BY, THE TRIAL COURT.

A. THE CONSTITUTION GUARANTEES THAT NO WARRANT OF ARREST SHALL ISSUE EXCEPT UPON PROBABLE CAUSE TO BE DETERMINED PERSONALLY BY THE JUDGE AND AFTER PERSONALLY EXAMINING UNDER OATH THE COMPLAINANT AND WITNESSES.

II.

PETITIONERS ASSERT THEIR RIGHT GUARANTEED BY THE CONSTITUTION WHICH TAKES PRECEDENCE OVER RULES OF PROCEDURE OR TECHNICALITIES.A. IT IS WELL-SETTLED THAT THIS HONORABLE COURT IS BOUND BY THE ALLEGATIONS IN THE PETITION AND NOT BY ITS CAPTION.[16]

Petitioners insist that the Orders of the court a quo dated 2 May 2000 and 14 July 2000 should be annulled for having been issued with grave abuse of discretion because the finding of probable cause was based solely on the unsworn statement of Mauro De Lara who never appeared during the preliminary examination. Petitioners also allege that since De Lara never appeared before the investigating judge, his statement was hearsay and cannot be used as basis for finding probable cause for the issuance of warrant of arrest or to hold petitioners liable for trial. Granting that the statement of De Lara was subscribed before "Judge Paguio," the same cannot be used as basis because the law requires that the statement be sworn to before the investigating judge and no other.

In its Comment, respondent People of the Philippines argue that the Court of Appeals correctly dismissed petitioners' petition because they resorted to the wrong mode of appeal.

On the other hand, respondent avers that the issue on the propriety of the issuance by the court a quo of the 2 May 2000 and 14 July 2000 Orders has become moot because clarificatory hearings were thereafter conducted and another Order dated 18 September 2000 was issued finding probable cause against petitioners; and, that the statement of Mauro De Lara was subscribed and sworn to before Judge Orlando Paguio although it was Judge Calixtro Adriatico who acted as the investigating judge.

The petition is meritorious.

Before proceeding to the substantive issues, we first address the issue of whether or not the Court of Appeals properly denied the petition for review filed by the petitioners under Rule 42 of the Rules of Court.

In denying the petition for review under Section 1,[17] Rule 42 of the 1997 Rules of Court filed by petitioners, the appellate court stressed that they availed of the wrong mode of review in bringing the case to it since the petitioners filed an original action under Rule 65 of the Rules of Court to the RTC, the remedy availed of should have been an appeal under Section 2(a) of Rule 41 of the Rules of Court:SEC. 2. Modes of appeal. -

(a) Ordinary appeal. - The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its original jurisdiction shall be

taken by filing a notice of appeal with the court which rendered the judgment or final order appealed from and serving a copy thereof upon the adverse party. No record on appeal shall be required except in special proceedings and other cases of multiple or separate appeals where the law or these Rules so require. In such cases, the record on appeal shall be filed and served in like manner. (Emphasis supplied.)It is only when the decision of the RTC was rendered in the exercise of appellate jurisdiction would a petition for review under Rule 42 be proper[18]

We do not agree in the conclusion arrived at by the Court of Appeals.

The present controversy involved petitioners' sacrosanct right to liberty, which is protected by the Constitution. No person should be deprived of life, liberty, or property without due process of law.[19]

While it is true that rules of procedure are intended to promote rather than frustrate the ends of justice, and while the swift unclogging of the dockets of the courts is a laudable objective, it nevertheless must not be met at the expense of substantial justice.[20]

The Court has allowed some meritorious cases to proceed despite inherent procedural defects and lapses. This is in keeping with the principle that rules of procedure are mere tools designed to facilitate the attainment of justice, and that strict and rigid application of rules which would result in technicalities that tend to frustrate rather than promote substantial justice must always be avoided. It is a far better and more prudent cause of action for the court to excuse a technical lapse and afford the parties a review of the case to attain the ends of justice, rather than dispose of the case on technicality and cause grave injustice to the parties, giving a false impression of speedy disposal of cases while actually resulting in more delay, if not a miscarriage of justice.[21]

In those rare cases to which we did not stringently apply the procedural rules, there always existed a clear need to prevent the commission of a grave injustice. Our judicial system and the courts have always tried to maintain a healthy balance between the strict enforcement of procedural laws and the guarantee that every litigant is given the full opportunity for a just and proper disposition of his cause.[22]

The emerging trend in the rulings of this Court is to afford every party litigant the amplest opportunity for the proper and just determination of his cause, free from the constraints of technicalities. Time and again, we have consistently held that rules must not be applied so rigidly as to override substantial justice.[23]

The Court of Appeals should have looked beyond the alleged technicalities to open the way for the resolution of the substantive issues in the instance case. The Court of Appeals, thus, erred in dismissing petitioners' petition for review. By dismissing the said Petition, the Court of Appeals absolutely foreclosed the resolution of all the substantive issues petitioners were repeatedly attempting to raise before the Court of Appeals.

We now proceed to the resolution of the substantive issues raised by the petitioners.

Section 2, Article III, of the 1987 Constitution, provides:

SEC. 2. 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.It is constitutionally mandated that a warrant of arrest shall issue only upon finding of probable cause personally determined by the judge after examination under oath or affirmation of the complainant and the witnesses he/she may produce, and particularly describing the person to be seized.

To determine the existence of probable cause, a preliminary investigation is conducted. A 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.[24]

A preliminary investigation is required to be conducted before the filing of a complaint or information for an offense where the penalty prescribed by law is at least 4 years, 2 months and 1 day without regard to the fine.[25] Thus, for cases where the penalty prescribed by law is lower than 4 years, 2 months and 1 day, a criminal complaint may be filed directly with the prosecutor or with the Municipal Trial court. In either case, the investigating officer (i.e., the prosecutor or the Municipal Trial Court Judge) is still required to adhere to certain procedures for the determination of probable cause and issuance of warrant of arrest.

In the instant case, respondent directly filed the criminal complaints against petitioners for grave coercion and trespass to dwelling before the Municipal Trial Court. The penalty prescribed by law for both offenses is arresto mayor, which ranges from 1 month and 1 day to 6 months. Thus, Section 9, Rule 112 of the Rules of Court applies, to wit:SEC. 9. Cases not requiring a preliminary investigation nor covered by the Rule on Summary Procedure. -

x x x x

(b) If filed with the Municipal Trial Court. - If the complaint or information is filed with the Municipal Trial Court or Municipal Circuit Trial Court for an offense covered by this section, the procedure in section 3(a) of this Rule shall be observed. If within ten (10) days after the filing of the complaint or information, the judge finds no probable cause after personally evaluating the evidence, or after personally examining in writing and under oath the complainant and his witnesses in the form of searching questions and answers, he shall dismiss the same. He may, however, require the submission of additional evidence, within ten (10) days from notice, to determine further the existence of probable cause. If the judge still finds no probable cause despite the additional evidence, he shall, within ten (10) days from its submission or expiration of said period, dismiss the case. When he finds probable cause, he shall issue a warrant of arrest or a commitment order if the accused had already been arrested, and hold him for trial. However, if the judge is satisfied that there is no necessity for placing the accused under custody, he may issue summons instead of a warrant of arrest. (Emphasis supplied.)Corollarily, Section 6 of the same Rule provides:

SEC. 6. When warrant of arrest may issue. - x x x

(b) By the Municipal Trial Court. - x x x [T]he judge may issue a warrant of arrest if he finds after an examination in writing and under oath of the complainant and his witnesses in the form of searching questions and answers, that a probable cause exists and that there is a necessity of placing the respondent under immediate custody in order not to frustrate the ends of justice.Clearly, Judge Adriatico gravely abused his discretion in issuing the assailed 2 May 2000 and 14 July 2000 Orders finding probable cause to hold petitioners liable for trial and to issue warrants of arrest because it was based solely on the statement of witness Mauro De Lara whom Judge Adriatico did not personally examine in writing and under oath; neither did he propound searching questions. He merely stated in the assailed 2 May 2000 Order that he overlooked the said statement of De Lara; nevertheless, without conducting a personal examination on said witness or propounding searching questions, Judge Adriatico still found De Lara's allegations sufficient to establish probable cause. Plainly, this falls short of the requirements imposed by no less than the Constitution.

In Sangguniang Bayan of Batac v. Judge Albano,[26] the Court found respondent judge guilty of ignorance of the law because he failed to comply with the procedure on the issuance of warrant of arrest, thus:Failure to comply with such procedure will make him administratively liable. In the case at bar, respondent judge issued several warrants of arrest without examining the complainant and his witnesses in writing and under oath, in violation of Section 6 of Rule 112 which provides:Sec. 6. When warrant of arrest may issue. - x x x

(b) By the Municipal Trial Court. - If the municipal trial judge conducting the preliminary investigation is satisfied after an examination in writing and under oath of the complainant and his witnesses in the form of searching questions and answers, that a probable cause exists and that there is a necessity of placing the respondent under immediate custody in order not to frustrate the ends of justice, he shall issue a warrant of arrest.The records show that respondent judge has violated the rules on preliminary investigation and issuance of a warrant of arrest since the start of his term as municipal judge in Batac, Ilocos Norte in September 1991. The gross ignorance of respondent judge has immensely prejudiced the administration of justice. Parties adversely affected by his rulings dismissing their complaints after preliminary investigation have been denied their statutory right of review that should have been conducted by the provincial prosecutor. His practice of issuing warrants of arrest without examining the complainants and their witnesses is improvident and could have necessarily deprived the accused of their liberty however momentary it may be. Our Constitution requires that all members of the judiciary must be of proven competence, integrity, probity and independence. Respondent judge's stubborn adherence to improper procedures and his constant violation of the constitutional provision requiring him to personally examine the complainant and the witness in writing and under oath before issuing a warrant of arrest makes him unfit to discharge the functions of a judge.When the investigating judge relied solely on the affidavit of witness De Lara which was not sworn to before him and whom he failed to examine in the form of searching questions and answers, he deprived petitioners of the opportunity to test the veracity of the allegations contained therein. Worse,

petitioners' arguments that De Lara's affidavit was hearsay was disregarded by the investigating judge despite the fact that the allegations therein were completely rebutted by petitioners' and their witnesses' affidavits, all of whom appeared before and were personally examined by the investigating judge. It was thus incorrect for the court a quo to rule thus:The accused's contention that the statement of witness Mauro de Lara is bereft of credibility and that the complaints at bar were initiated merely for harassment purposes could be ventilated well in a full blown trial.[27]

In sum, De Lara's affidavit cannot be relied upon by the court a quo for its finding of probable cause.

In addition, this Court finds that the warrants of arrest were precipitously issued against petitioners. Deprivation of a citizen's liberty through the coercive process of a warrant of arrest is not a matter which courts should deal with casually. Any wanton disregard of the carefully-wrought out processes established pursuant to the Constitution's provisions on search warrants and warrants of arrest is a serious matter primarily because its effects on the individual wrongly-detained are virtually irremediable.[28]

The procedure described in Section 6 of Rule 112 is mandatory because failure to follow the same would amount to a denial of due process. With respect to the issuance by inferior courts of warrants of arrest, it is necessary that the judge be satisfied that probable cause exists: 1) through an examination under oath and in writing of the complainant and his witnesses; which examination should be 2) in the form of searching questions and answers. This rule is not merely a procedural but a substantive rule because it gives flesh to two of the most sacrosanct guarantees found in the fundamental law: the guarantee against unreasonable searches and seizures and the due process requirement.[29]

The issuance of warrants of arrest is not mandatory. The investigating judge must find that there is a necessity of placing the petitioners herein under immediate custody in order not to frustrate the ends of justice.[30] Perusal of the records shows no necessity for the immediate issuance of warrants of arrest. Petitioners are not flight risk and have no prior criminal records.

Respondent's contention that any defect in the 2 May 2000 and 14 July 2000 Orders of the court a quo has been cured by its 18 September 2000 Order is flawed. It will be recalled that on 15 September 2000, petitioners filed a petition for certiorari before the Regional Trial Court of Meycauayan, Bulacan. On 18 September 2000, Executive Judge Manalastas issued a temporary restraining order enjoining the court a quo from conducting further proceedings in Criminal Cases Nos. 99-29037 and 99-29038. However, in contravention of said restraining order, the court a quo issued its Order on even date, i.e., 18 September 2000, finding probable cause against petitioners holding them liable for trial and ordering the issuance of warrants of arrest. Considering that the court a quo's 18 September 2000 Order was issued during the effectivity of the temporary restraining order, the same is considered of no effect.

WHEREFORE, the petition is GRANTED. The assailed 24 February 2004 Decision of the Court of Appeals in CA-G.R. SP No. 63280 denying petitioners' petition for review and directing the Municipal Trial Court of Meycauayan, Bulacan, Branch 11, to proceed with the trial of Criminal Cases Nos. 99-29037 and 99-29038, as well as the 23 October 2006 Resolution denying the motion for reconsideration, are REVERSED and SET ASIDE. The Municipal

Trial Court of Meycauayan, Bulacan, Branch 11, is DIRECTED to dismiss Criminal Cases Nos. 99-29037 and 99-29038 for lack of probable cause and to quash the warrants of arrest against petitioners for having been irregularly and precipitously issued.

SO ORDERED.

Ynares-Santiago, (Chairperson), Carpio,* Azcuna,** and Nachura, JJ., concur.

* Per Special Order No. 531, dated 20 October 2008, signed by Acting Chief Justice Leonardo A. Quisumbing, designating Associate Justice Antonio T. Carpio to replace Associate Justice Ma. Alicia Austria-Martinez, who is on leave.

** Per Special Order No. 521, dated 29 September 2008, signed by Chief Justice Reynato S. Puno, designating Associate Justice Adolfo S. Azcuna to replace Associate Justice Ruben T. Reyes, who is on official leave.

[1] Rollo, pp. 30-31.

[2] Id. at 35-39.

[3] Id. at 64-66.

[4] Entitled People of the Philippines v. Daisy Afable. Respondent was charged for Estafa. In an Information dated 18 November1999 docketed as Criminal Case No. 00-078. (Rollo, p. 90.) A warrant for the arrest of private respondent dated 24 January 2000 was issued by the RTC of Makati. (Rollo, p. 92.) On 25 March 2003, the RTC Branch 142 Makati rendered a decision finding respondent guilty beyond reasonable doubt of the crime of Estafa. (CA rollo, p. 237.) This conviction was affirmed in the decision of the Court of Appeals dated 27 March 2007 in CA-G.R. CR No. 27515. Respondent elevated the case to this Court (G.R. No. 181047) but her petition was denied in this Court's resolution dated 24 March 2008.

Respondent also filed a Complaint for Illegal dismissal against Miladay Jewels Inc represented by its president Michelle Dayrit Soliven docketed as NLRC NCR Case No. 30-12-00756-99 which the labor arbiter decided on 13 October 2000. (CA rollo p. 260.) The records are silent as to the status of this case. Respondent filed two additional cases for Grave coercion and grave threats against petitioner Tabujara and the other Dayrit sisters, Michelle and Yvonne before the Makati City Prosecutors office which was dismissed by resolution of the Prosecutor's Office on 20 July 2000. (CA rollo, p. 244.)

[5] Rollo, p. 77.

[6] Id. at 94.

[7] Id. at 107.

[8] Id. at 108-120.

[9] Id. at 121-122; penned by Judge Danilo A. Manalastas.

[10] Id. at 127-145; penned by Judge Arturo G. Tayag.

[11] Id. at 144.

[12] Id. at 145.

[13] Id. at 147-157. Penned by Associate Justice Jose C. Reyes, Jr. with Associate Justices Romeo A. Brawner and Rebecca De Guia-Salvador, concurring.

[14] Id. at 157.

[15] Id. at 176-178. Penned by Associate Justice Regalado E. Maambong with Associate Justices Marina L. Buzon and Japar B. Dimaampao, concurring.

[16] Id. at 17-18.

[17] SECTION 1. How appeal taken; time for filing. - A party desiring to appeal from a decision of the Regional Trial Court rendered in the exercise of its appellate jurisdiction may file a verified petition for review with the Court of Appeals, paying at the same time to the clerk of said court the corresponding docket and other lawful fees, depositing the amount of P500.00 for costs, and furnishing the Regional Trial Court and the adverse party with a copy of the petition. The petition shall be filed and served within fifteen (15) days from notice of the decision sought to be reviewed or of the denial of petitioner's motion for new trial or reconsideration filed in due time after judgment. Upon proper motion and the payment of the full amount of the docket and other lawful fees and the deposit for costs before the expiration of the reglementary period, the Court of Appeals may grant an additional period of fifteen (15) days only within which to file the petition for review. No further extension shall be granted except for the most compelling reason and in no case to exceed fifteen (15) days.

[18] De Liano v. Court of Appeals, 421 Phil. 1033, 1049-1050 (2001).

[19] PHILIPPINE CONSTITUTION, Article III, Section 1; Macasasa v. Sicad, G.R. No. 146547, 20 June 2006, 491 SCRA 368, 383.

[20] Wack Wack Golf and Country Club v. National Labor Relations Commission, G.R. 149793, 15 April 2005, 456 SCRA 280, 294.

[21] Id.

[22] Neypes v. Court of Appeals, G.R. No. 141524, 14 September 2005, 469 SCRA 633, 643.

[23] Peñoso v. Dona, G.R. No. 154018, 3 April 2007, 520 SCRA 232, 240-241.

[24] RULES OF COURT, Rule 112, Sec. 1.

[25] Id.

[26] 329 Phil. 363, 374-375 (1996).

[27] Rollo, p. 107.

[28] Cabilao v. Judge Sardido, 316 Phil. 134, 141 (1995).

[29] Id. at 142.

[30] Bagunas v. Judge Fabillar, 352 Phil. 206, 221 (1998).

EN BANC

[G.R. No. 113930. March 5, 1996]

PAUL G. ROBERTS, JR., RODOLFO C. SALAZAR, LUIS LORENZO, SR., LUIS LORENZO, JR., AMAURY R. GUTIERREZ, BAYANI N. FABIC, JOSE YULO, JR., ESTEBAN B. PALANNUAYAN, and WONG FONG FUI, petitioners, vs. THE COURT OF APPEALS, THE HON. MAXIMIANO ASUNCION, in his capacity as the Presiding Judge of the Regional Trial Court, Quezon City, Branch 104, HON. APOLINARIO G. EXEVEA, HON. HENRICK F. GINGOYON, and HON. PHILIP A. AGUINALDO, in their capacities as Members of the Department of Judge “349” Committee, and the CITY PROSECUTOR OF QUEZON CITY, respondents.

ROBERTO DELGADO, petitioner-intervenor.

D E C I S I O N

DAVIDE, JR., J.:

We are urged in this petition to set aside (a) the decision of the Court of Appeals of 28 September 1993 in CA-G.R. SP No. 31226,i[1] which dismissed the petition therein on the ground that it has been “mooted with the release by the Department of Justice of its decision x x x dismissing petitioners’ petition for review”; (b) the resolution of the said court of 9 February 1994ii[2] denying the petitioners’ motion to reconsider the decision; (c) the order of 17 May 1993iii[3] of respondent Judge Maximiano C. Asuncion of Branch 104 of the Regional Trial Court (RTC) of Quezon City in Criminal Case No. Q-93-43198 denying petitioners’ motion to suspend proceedings and to hold in abeyance the issuance of the warrants of arrest and the public prosecutor’s motion to defer arraignment; and (d) the resolution of 23 July 1993 and 3 February 1994 iv[4] of the Department of Justice, (DOJ) dismissing petitioners’ petition for the review of the Joint Resolution of the Assistant City Prosecutor of Quezon City and denying the motion to reconsider the dismissal, respectively.

The petitioners rely on the following grounds for the grant of the reliefs prayed for in this petition:

I

Respondent Judge acted with grave abuse of discretion when he ordered the arrest of the petitioners without examining the record of the preliminary investigation and in determining for himself on the basis thereof the existence of probable cause.

II

The Department of Justice “349” Committee acted with grave abuse of discretion when it refused to review the City Prosecutor’s Joint Resolution and dismissed petitioner’s appeal therefrom.

III

The Court of Appeals acted with grave abuse of discretion when it upheld the subject order directing the issuance of the warrants of arrest without assessing for itself whether based on such records there is probable cause against petitioners.

IV

The facts on record do not establish prima facie probable cause and Criminal Case No. Q-93-43198 should have been dismissed.v[5]

The antecedents of this petition are not disputed.

Several thousand holdersvi[6] of “349” Pepsi crowns in connection with the Pepsi Cola Products Phils., Inc.’s (PEPSI’s) Number Fever Promotionvii[7] filed with the Office of the City Prosecutor of Quezon City complaints against the petitioners in their respective capacities as Presidents or Chief Executive Officers, Chairman of the Board, Vice-Chairman of the Board, and Directors of PEPSI, and also against other officials of PEPSI. The complaints respectively accuse the petitioners and the other PEPSI officials of the following crimes: (a) estafa; (b) violation of R.A. No. 7394, otherwise known as the Consumer Act of the Philippines; (c) violation of E.O. No. 913;viii[8] and (d) violation of Act No. 2333, entitled “An Act Relative to Untrue, Deceptive and Misleading Advertisements,” as amended by Act No. 3740.ix[9]

After appropriate proceedings, the investigating prosecutor, Ramon M. Gerona, released on 23 March 1993 a Joint Resolutionx[10] where he recommended the filing of an information against the petitioners and others for the violation of Article 3 18 of the Revised Penal Code and the dismissal of the complaints for the violation of Article 315, 2(d) of the Revised Penal Code; R.A. No. 7394; Act No. 2333, as amended by Act No. 3740; and E.O. No. 913. The dispositive portion thereof reads as follows:

In view of all the foregoing, it is recommended that:

1. The attached information be filed against respondents Paul G. Roberts, Jr., Rodolfo C. Salazar, Rosemarie R. Vera, Luis F. Lorenzo, Sr., Luis P. Lorenzo, Jr., J. Roberto Delgado, Amaury R. Gutierrez, Bayani N. Fabic, Jose Yulo, Jr., Esteban B. Pacannuayan, Jr., Wong Fong Fui, Quintin J. Gomez, Jr. and Chito V. Gutierrez for estafa under Article 318, Revised Penal Code, while the complaint for violation of Article 315, 2(d), Revised Penal Code against same respondents Juanito R. Ignacio, R. Sobong, R.O. Sinsuan, M.P. Zarsadias, L.G. Dabao, Jr., R.L. Domingo, N.N. Bacsal, Jesus M. Manalastas, Janette P. Pio de Roda, Joaquin W. Sampaico, Winefreda 0. Madarang, Jack Gravey, Les G. Ham, Corazon Pineda, Edward S. Serapio, Alex 0. Caballes, Sandy Sytangco, Jorge W. Drysdale, Richard Blossom, Pablo de Borja, Edmundo L. Tan, Joseph T. Cohen, Delfin Dator, Zosimo B. San Juan, Joaquin Franco, Primitivo S. Javier, Jr., Luisito Guevarra, Asif H. Adil, Eugenio Muniosguren, James Ditkoff and Timothy Lane be dismissed;

2. The complaints against all respondents for violation of R.A. 7394 otherwise known as the Consumer Act of the Philippines and violation of Act 2333 as amended by Act 3740 and E 0. 913 be also dismissed for insufficiency of evidence, and

3. I.S. Nos. 92-7833; 92-8710 and 92-P-1065 involving Crowns Nos. 173; 401; and 117, 425, 703 and 373, respectively, alleged to be likewise winning ones be further investigated to afford respondents a chance to submit their counter-evidence.xi[11]

On 6 April 1993, City Prosecutor Candido V. Rivera approved the recommendation with the modification that Rosemarie Vera, Quintin Gomez, Jr., and Chito Gonzales be excluded from the charge on the ground of insufficiency of evidence.xii[12]

The information for estafa attached to the Joint Resolution was approved (on 7 April 1993) by Ismael P. Casabar, Chief of the Prosecution Division, upon authority of the City Prosecutor of Quezon City, and was filed with the RTC of Quezon City on 12 April

1993. It was docketed as Criminal Case No. Q-93-43198.xiii[13] The information reads as follows:

The undersigned 1st Assistant City Prosecutor accuses PAUL G. ROBERTS, JR. RODOLFO C. SALAZAR, LUIS F. LORENZO, SR., LUIS P. LORENZO, JR., J. ROBERTO DELGADO, AMAURY R. GUTIERREZ, BAYANI N. FABIC, JOSE YULO, JR., ESTEBAN B. PACANNUAYAN, JR. and WONG FONG FUI, of the crime of ESTAFA, committed as follows:

That in the month of February, 1992, in Quezon City, Philippines and for sometime prior and subsequent thereto, the above-named accused -

Paul G. Roberts, Jr. ) being then the PresidentsRodolfo G. Salazar and Executive Officers

Luis F. Lorenzo, Sr. ) being then the Chairman of the Board of Directors

Luis P. Lorenzo, Jr. ) being then the Vice Chairman of the Board

J. Roberto Delgado ) being then Members of the BoardAmaury R. Gutierrez )Bayani N. Fabic )Jose Yulo, Jr. )Esteban B. Pacannuayan, Jr. andWong Fong Fui )

OF THE PEPSI COLA PRODUCTS PHILIPPINES, INC., CONSPIRING with one another, with intent of gain, by means of deceit, fraudulent acts or false pretenses, executed prior to or simultaneously with the commission of the fraud, did then and there willfully, unlawfully and feloniously defraud the private complainants whose names with their prizes claimed appear in the attached lists marked as Annexes “A” to “A-46”; “B” to “-33”; “C” to “C-281”; “D” to “D-238”; “E” to “E-3O” and “F” to “F-244” in the following manner: on the date and in the place aforementioned, said accused pursuant to their conspiracy, launched the Pepsi Cola Products Philippines, Inc. “Number Fever Promotion” from February 17 to May 8, 1992 later extended to May 11-June 12, 1992 and announced and advertised in the media that “all holders of crowns and/or caps of Pepsi, Mirinda, Mountain Dew and Seven-Up bearing the winning 3-digit number will win the full amount of the prize printed on the crowns/caps which are marked with a seven-digit security code as a measure against tampering or faking of crowns and each and every number has its own unique matching security code,” enticing the public to buy Pepsi softdrinks with aforestated alluring and attractive advertisements to become millionaires, and by virtue of such representations made by the accused, the said complainants bought Pepsi softdrinks, but, the said accused after their TV announcement on May 25, 1992 that the winning number for the next day was “349,” in violation of their aforecited mechanics, refused as they still refuse to redeem/pay the said Pepsi crowns and/or caps presented to them by the complainants, who, among others, were able to buy Pepsi softdrinks with crowns/caps bearing number “349” with security codes L-2560-FQ and L-3560-FQ, despite repeated demands made by the complainants, to their damage and prejudice to the extent of the amount of the prizes respectively due them from their winning “349” crowns/caps, together with such other amounts they spent ingoing to and from the Office of Pepsi to claim their prizes and such other amounts used in buying Pepsi softdrinks which the complainants normally would not have done were it not for the false, fraudulent and deceitful posters of Pepsi Cola Products, Inc.

CONTRARY TO LAW.

On 14 April 1993, the petitioners filed with the Office of the City Prosecutor a motion for the reconsideration of the Joint Resolutionxiv[14] alleging therein that (a) there was neither fraud in the Number Fever Promotion nor deviation from or modification of the promotional rules approved by the Department of Trade and industry (DTI), for from the start of the promotion, it had always been clearly explained to the public that for one to be entitled to the cash prize his crown must bear both the winning number and the

correct security code as they appear in the DTI list; (b) the complainants failed to allege, much less prove with prima facie evidence, the specific overt criminal acts or ommissions purportedly committed by each of the petitioners; (c) the compromise agreement entered into by PEPSI is not an admission of guilt; and (d) the evidence establishes that the promo was carried out with utmost good faith and without malicious intent.

On 15 April 1993, the petitioners filed with the DOJ a Petition for Reviewxv[15] wherein, for the same grounds adduced in the aforementioned motion for reconsideration, they prayed that the Joint Resolution be reversed and the complaints dismissed. They further stated that the approval of the Joint Resolution by the City prosecutor was not the result of a careful scrutiny and independent evaluation of the relevant facts and the applicable law but of the grave threats, intimidation, and actual violence which the complainants had inflicted on him and his assistant prosecutors.

On that same date, the petitioners filed in Criminal Case No. Q-93-43198 Motions to Suspend Proceedings and to Hold in Abeyance Issuance of Warrants of Arrest on the ground that they had filed the aforesaid Petition for Review.xvi[16]

On 21 April 1993, acting on the Petition for Review, Chief State Prosecutor Zenon L. De Guia issued a 1st Indorsement,xvii[17] directing the City Prosecutor of Quezon City to inform the DOJ whether the petitioners have already been arraigned, and if not, to move in court for the deferment of further proceedings in the case and to elevate to the DOJ the entire records of the case, for the case is being treated as an exception pursuant to Section 4 of Department Circular No. 7 dated 25 January 1990.

On 22 April 1993, Criminal Case no. Q-93-41398 was raffled to Branch 104 of the RTC of Quezon City.xviii[18]

In the morning of 27 April 1993, private prosecutor Julio Contreras filed an Ex-Parte Motion for Issuance of Warrants of Arrest.xix[19]

In the afternoon of that same day, petitioner Paul Roberts, Jr., filed a Supplemental Urgent Motion to hold in Abeyance Issuance of Warrant of Arrest and to Suspend Proceedings.xx[20] He stressed that the DOJ had taken cognizance of the Petition for Review by directing the City Prosecutor to elevate the records of I.S. No. P-4401 and its related cases and asserted that the petition for review was an essential part of the petitioners’ right to a preliminary investigation.

The next day, respondent Judge Asuncion, Presiding Judge of Branch 104 of the RTC of Quezon City, issued an order advising the parties that his court would “be guided by the doctrine laid down by the Supreme Court in the case of Crespo vs. Mogul, 151 SCRA 462 and not by the resolution of the Department of Justice on the petition for review undertaken by the accused.”xxi[21]

On 30 April 1993, Assistant City Prosecutor Tirso M. Gavero filed with the trial court a Motion to Defer Arraignment wherein he also prayed that “further proceedings be held in abeyance pending final disposition by the Department of Justice.”xxii[22]

On 4 May 1993, Gavero filed an Amended Information,xxiii[23] accompanied by a corresponding motionxxiv[24] to admit it. The amendments merely consist in the statement that the complainants therein were only “among others” who were defrauded by the accused and that the damage or prejudice caused amounted “to several billions of pesos, representing the amounts due them from their winning ‘349’ crowns/caps.” The trial court admitted the amended information on the same date.xxv[25]

Later, the attorneys for the different private complainants filed, respectively, an Opposition to Motion to Defer Arraignment,xxvi[26] and Objection and Opposition to Motion to Suspend Proceedings and to Hold in Abeyance the Issuance of Warrants of Arrest.xxvii

[27]

On 14 May 1993, the petitioners filed a Memorandum in support of their Motion to

Suspend Proceedings and to Hold in Abeyance the Issuance of the Warrants of Arrest.xxviii[28]

On 17 May 1993, respondent Judge Asuncion issued the challenged order (1) denying the petitioners’ Motion to Suspend Proceedings and to Hold In Abeyance Issuance of Warrants of Arrest and the public prosecutor’s Motion to Defer Arraignment and (2) directing the issuance of the warrants of arrest “after 21 June 1993” and setting the arraignment on 28 June 1993.xxix[29] Pertinent portions of the order read as follows:

In the Motion filed by the accused, it is alleged that on April 15, 1993, they filed a petition for review seeking the reversal of the resolution of the City Prosecutor of Quezon City approving the filing of the case against the accused, claiming that:

1. The resolution constituting [sic] force and duress;

2. There was no fraud or deceit therefore there can be no estafa;

3. No criminal overt acts by respondents were proved;

4. Pepsi nor the accused herein made no admission of guilt before the Department of Trade and Industry;

5. The evidence presented clearly showed no malicious intent on the part of the accused.

Trial Prosecutor Tirso M. Gavero in his Motion to Defer Arraignment averred that there is a pending petition for review with the Department of Justice filed by the accused and the Office of the City Prosecutor was directed, among other things, to cause for the deferment of further proceedings pending final disposition of said petition by the Department of Justice.

The motions filed by the accused and the Trial Prosecutor are hereby DENIED.

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

The Supreme Court in the case of Crespo vs. Mogul (SCRA 151, pp. 471-472) stated as follows:

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

WHEREFORE, let warrant of arrest be issued after June 21, 1993, and arraignment be set on June 28, 1993, at 9:30 in the morning.

On 7 June 1993, the petitioners filed with the Court of Appeals a special civil action for certiorari and prohibition with application for a temporary restraining order,xxx[30] which was docketed as CA-G.R. SP No. 31226. They contended therein that respondent Judge Asuncion had acted without or in excess of jurisdiction or with grave abuse of discretion in issuing the aforementioned order of 17 May 1993 because

I. RESPONDENT JUDGE FAILED TO EXAMINE THE RECORD OF PRELIMINARY INVESTIGATION BEFORE ORDERING THE ARREST OF PETITIONERS.

II. THERE IS NO PROBABLE CAUSE TO HOLD PETITIONERS CRIMINALLY LIABLE FOR ESTAFA, OTHER DECEITS, OR ANY OTHER OFFENSE.

III. THE PROCEEDINGS BELOW SHOULD HAVE BEEN SUSPENDED TO AWAIT THE SECRETARY OF JUSTICE’S RESOLUTION OF PETITIONERS’ APPEAL, AND

IV.THERE IS NO OTHER PLAIN, SPEEDY AND ADEQUATE REMEDY IN THE ORDINARY COURSE OF LAW.

On 15 June 1993, the Court of Appeals issued a temporary restraining order to maintain the status quo.xxxi[31] In view thereof, respondent Judge Asuncion issued an order on 28 June 1993xxxii[32] postponing indefinitely the arraignment of the petitioners which was earlier scheduled on that date.

On 28 June 1993, the Court of Appeals heard the petitioners’ application for a writ of preliminary injunction, granted the motion for leave to intervene filed by J. Roberto Delgado, and directed the Branch Clerk of Court of the RTC of Quezon City to elevate the original records of Criminal Case No. Q-93-43198xxxiii[33]

Upon receipt of the original records of the criminal case, the Court of Appeals found that a copy of the Joint Resolution had in fact been forwarded to, and received by, the trial court on 22 April 1993, which fact belied the petitioners’ claim that the respondent Judge had not the slightest basis at all for determining probable cause when he ordered the issuance of warrants of arrest. It ruled that the Joint Resolution “was sufficient in itself to have been relied upon by respondent Judge in convincing himself that probable cause indeed exists for the purpose of issuing the corresponding warrants of arrest”; and that the “mere silence of the records or the absence of any express declaration” in the questioned order as to the basis of such finding does not give rise to an adverse inference, for the respondent Judge enjoys in his favor the presumption of regularity in the performance of his official duty. The Court of Appeals then issued a resolutionxxxiv[34]

denying the application for a writ of preliminary injunction.

On 8 June 1993, the petitioners filed a motion to reconsiderxxxv[35] the aforesaid resolution. The Court of Appeals required the respondents therein to comment on the said motion.xxxvi[36]

On 3 August 1993, the counsel for the private complainants filed in CA-G.R. SP No. 31226 a Manifestationxxxvii[37] informing the court that the petitioners’ petition for review filed with the DOJ was dismissed in a resolution dated 23 July 1993. A copyxxxviii[38] of the resolution was attached to the Manifestation.

On 21 September 1993, the public respondents filed in CA-G.R. SP No. 31226 a motion to dismiss the petitionxxxix[39] on the ground that it has become moot and academic in view of the dismissal by the DOJ of the petitioners’ petition to review the Joint Resolution. The dismissal by the DOJ is founded on the following exposition:

You questioned the said order of the RTC before the Court of Appeals and prayed for the issuance of a writ of preliminary injunction to restrain the Trial Judge from issuing any warrant of arrest and from proceeding with the arraignment of the accused. The appellate court in a resolution dated July 1, 1993, denied your petition.

In view of the said developments, it would be an exercise in futility to continue reviewing the instant cases for any further action on the part of the Department would depend on the sound discretion of the Trial Court. The denial by the said court of the motion to defer arraignment filed at our instance was clearly an exercise of its discretion. With the issuance of the order dated May 17, 1993, the Trial Court was in effect sending a signal to this Department that “the determination of the case is within its exclusive jurisdiction and competence.” The rule is that ‘x x x once a complaint or information is filed in Court, any disposition of the case as to 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. x x x’ (Crespo vs. Mogul, 151 SCRA 462).xl[40]

On 28 September 1993, the Court of Appeals promulgated a decisionxli[41] dismissing the petition because it had been “mooted with the release by the Department of Justice of its decision x x x dismissing petitioners’ petition for review by inerrantly upholding the criminal court’s exclusive and unsupplantable authority to control the entire course of the case brought against petitioners, reiterating with approval the dictum laid down in

the ‘Crespo’ case.”

The petitioners filed a motion to reconsider the DOJ’s dismissal of the petition citing therein its resolutions in other similar cases which were favorable to the petitioners and adverse to other “349” Pepsi crowns holders.

In its resolution of 3 February 1994, the DOJ, through its “349” Committee, denied the motion and stated: “The instant petition is different from the other petitions resolved by this Department in similar cases from the provinces. In the latter petitions, the complaints against herein respondents [sic]xlii[42] were dismissed inasmuch as the informations have not yet been filed or even if already filed in court, the proceedings have been suspended by the courts to await the outcome of the appeal with this Department.”xliii[43]

The petitioners likewise filed a motion to reconsiderxliv[44] the aforesaid Court of Appeals’ decision, which the said court denied in its resolutionxlv[45] of 9 February 1994. Hence, the instant petition.

The First Division of this Court denied due course to this petition in its resolution of 19 September 1994.xlvi[46]

On 7 October 1994, the petitioners filed a motion for the reconsiderationxlvii[47] of the aforesaid resolution. Acting thereon, the First Division required the respondents to comment thereon.

Later, the petitioners filed a supplemental motion for reconsiderationxlviii[48] and a motion to refer this case to the Court en banc.xlix[49] In its resolution of 14 November 1994,l

[50] the First Division granted the latter motion and required the respondents to comment on the supplemental motion for reconsideration

In the resolution of 24 November 1994, the Court en banc accepted the referral.

On 10 October 1995, after deliberating on the motion for reconsideration and the subsequent pleadings in relation thereto, the Court en banc granted the motion for reconsideration; reconsidered and set aside the resolution of 19 September 1994; and reinstated the petition. It then considered the case submitted for decision, “since the parties have exhaustively discussed the issues in their pleadings, the original records of Criminal Case No. Q-93-43198 and of CA-G.R. SP No. 31226 had been elevated to this Court, and both the petitioners and the Office of the Solicitor General pray, in effect, that this Court resolve the issue of probable cause On the basis thereof.”

The pleadings of the parties suggest for this Court’s resolution the following key issues:

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

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

3. Whether the DOJ, through its “349” Committee, gravely abused its discretion in dismissing the petition for review on the following bases: (a) the resolution of public respondent Court of Appeals denying the application for a writ of preliminary injunction and (b) of public respondent Asuncion’s denial of the abovementioned motions.

4. Whether public respondent Court of Appeals committed grave abuse of discretion (a) in denying the motion for a writ of preliminary injunction solely on the ground that public respondent Asuncion had already before him the Joint Resolution of the investigating prosecutor when he ordered the issuance of the warrants of arrest, and (b) in ultimately dismissing the petition on the ground of mootness since the DOJ has dismissed the petition for review.

5. Whether this Court may determine in this proceedings the existence of probable cause either for the issuance of warrants of arrest against the petitioners or for their prosecution for the crime of estafa.

We resolve the first four issues in the affirmative and the fifth, in the negative.

I.

There is nothing in Crespo vs. Mogulli[51] which bars the DOJ from taking cognizance of an appeal, by way of a petition for review, by an accused in a criminal case from an unfavorable ruling of the investigating prosecutor. It merely advised the DOJ to, “as far as practicable, refrain from entertaining a petition for review or appeal from the action of the fiscal, when the complaint or information has already been filed in Court.” More specifically, it stated:

In order therefore to avoid such a situation whereby the opinion of the Secretary of Justice who reviewed the action of the fiscal may be disregarded by the trial court, the Secretary of Justice should, as far as practicable, refrain from entertaining a petition for review or appeal from the action of the fiscal, when the complaint or information has already been filed in Court. The matter should be left entirely for the determination of the Court.lii[52]

In Marcelo vs. Court of Appeals,liii[53] this Court explicitly declared:

Nothing in the said ruling forecloses the power or authority of the Secretary of Justice to review resolutions of his subordinates in criminal cases. The Secretary of Justice is only enjoined to refrain as far as practicable from entertaining a petition for review or appeal from the action of the prosecutor once a complaint or information is filed in court. In any case, the grant of a motion to dismiss, which the prosecution may file after the Secretary of Justice reverses an appealed resolution, is subject to the discretion of the court.

Crespo could not have intended otherwise without doing violence to, or repealing, the last paragraph of Section 4, Rule 112 of the Rules of Court liv[54] which recognizes the authority of the Secretary of Justice to reverse the resolution of the provincial or city prosecutor or chief state prosecutor upon petition by a proper party.

Pursuant to the said provision, the Secretary of Justice had promulgated the rules on appeals from resolutions in preliminary investigation. At the time the petitioners filed their petition for the review of the Joint Resolution of the investigating prosecutor, the governing rule was Circular No. 7, dated 25 January 1990. Section 2 thereof provided that only resolutions dismissing a criminal complaint may be appealed to the Secretary of Justice. Its Section 4,lv[55] however, provided an exception, thus allowing, upon a showing of manifest error or grave abuse of discretion, appeals from resolutions finding probable cause, provided that the accused has not been arraigned.

The DOJ gave due course to the petitioners’ petition for review as an exception pursuant to Section 4 of Circular No. 7.

Meanwhile, the DOJ promulgated on 30 June 1993 Department Order No. 223 lvi[56]

which superseded Circular No. 7. This Order, however, retained the provisions of Section 1 of the Circular on appealable cases and Section 4 on the non-appealable cases and the exceptions thereto.

There is nothing in Department Order No. 223 which would warrant a recall of the previous action of the DOJ giving due course to the petitioners’ petition for review. But whether the DOJ would affirm or reverse the challenged Joint Resolution is still a matter of guesswork. Accordingly, it was premature for respondent Judge Asuncion to deny the motions to suspend proceedings and to defer arraignment on the following grounds:

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

The real and ultimate test of the independence and integrity of this court is not the filing of the aforementioned motions at that stage of the proceedings but the filing of a motion to dismiss or to withdraw the information on the basis of a resolution of the petition for review reversing the Joint Resolution of the investigating prosecutor. Before that time, the following pronouncement in Crespo did not yet truly become relevant or applicable:

The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any disposition of the case 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. The determination of the case is within its exclusive jurisdiction and competence. A motion to dismiss the case filed by the fiscal should be addressed to the Court who has the option to grant or deny the same. It does not matter if this is done before or after the arraignment of the accused or that the motion was filed after a reinvestigation or upon instructions of the Secretary of Justice who reviewed the records of the investigation.lvii[57]

However, once a motion to dismiss or withdraw the information is filed the trial judge may grant or deny it, not out of subservience to the Secretary of Justice, but in faithful exercise of judicial prerogative. This Court pertinently stated so in Martinez vs. Court of Appeals:lviii[58]

Whether to approve or disapprove the stand taken by the prosecution is not the exercise of discretion required in cases like this. The trial judge must himself be convinced that there was indeed no sufficient evidence against the accused, and this conclusion can be arrived at only after an assessment of the evidence in the possession of the prosecution. What was imperatively required was the trial judge’s own assessment of such evidence, it not being sufficient for the valid and proper exercise of judicial discretion merely to accept the prosecution’s word for its supposed insufficiency.

As aptly observed the Office of the Solicitor General, in failing to make an independent finding of the merits of the case and merely anchoring the dismissal on the revised position of the prosecution, the trial judge relinquished the discretion he was duty bound to exercise. In effect, it was the prosecution, through the Department of Justice which decided what to do and not the court which was reduced to a mere rubber stamp in violation of the ruling in Crespo vs. Mogul.

II.

Section 2, Article III of the present Constitution provides that 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.

Under existing laws, warrants of arrest may be issued (1) by the Metropolitan Trial Courts (MeTCs) except those in the National Capital Region, Municipal Trial Courts (MTCs), and Municipal Circuit Trial Courts (MCTCs) in cases falling within their exclusive original jurisdiction;lix[59] in cases covered by the rule on summary procedure where the accused fails to appear when required; lx[60] and in cases filed with them which are cognizable by the Regional Trial Courts (RTCs); lxi[61] and (2) by the Metropolitan Trial Courts in the National Capital Region (MeTCs-NCR) and the RTCs in cases filed with them after appropriate preliminary investigations conducted by officers authorized to do so other than judges of MeTCs, MTCs and MCTCs.lxii[62]

As to the first, a warrant can issue only if the judge is satisfied after an examination in writing and under oath of the complainant and the witnesses, in the form of searching questions and answers, that a probable cause exists and that there is a necessity of placing the respondent under immediate custody in order not to frustrate the ends of justice.

As to the second, this Court held in Soliven vs. Makasiarlxiii[63] that the judge is not required to personally examine the complainant and the witnesses, but

[f]ollowing established doctrine and procedure, he shall: (1) personally evaluate the report and 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.lxiv[64]

Sound policy supports this procedure, “otherwise judges would be unduly laden with the preliminary examination and investigation of criminal complaints instead of concentrating on hearing and deciding cases filed before their courts.” It must be emphasized that judges must not rely solely on the report or resolution of the fiscal (now prosecutor); they must evaluate the report and the supporting documents. In this sense, the aforementioned requirement has modified paragraph 4(a) of Circular No. 12 issued by this Court on 30 June 1987 prescribing the Guidelines on Issuance of Warrants of Arrest under Section 2, Article III of the 1987 Constitution, which provided in part as follows:

4. In satisfying himself of the existence of a probable cause for the issuance of a warrant of arrest, the judge, following established doctrine and procedure, may either:

(a) Rely upon the fiscal’s certification of the existence of probable cause whether or not the case is cognizable only by the Regional Trial Court and on the basis thereof, issue a warrant of arrest. x x x

This requirement of evaluation not only of the report or certification of the fiscal but also of the supporting documents was further explained in People vs. Inting,lxv[65] where this Court specified what the documents may consist of, viz., “the affidavits, the transcripts of stenographic notes (if any), and all other supporting documents behind the Prosecutor’s certification which are material in assisting the Judge to make his determination of probable cause. Thus:

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

First, the determination of probable cause is a function of the Judge. It is not for the Provincial Fiscal or Prosecutor nor the Election Supervisor to ascertain. Only the Judge and the Judge alone makes this determination.

Second, the preliminary inquiry made by a Prosecutor does not bind the Judge. It merely assists him to make the determination of probable cause. The Judge does not have to follow what the Prosecutor presents to him. By itself, the Prosecutor’s certification of probable cause is ineffectual. It is the report, the affidavits, the transcripts of stenographic notes (if any), and all other supporting documents behind the Prosecutor’s certification which are material in assisting the Judge to make his determination.

In adverting to a statement in People vs. Delgadolxvi[66] that the judge may rely on the resolution of the Commission on Elections (COMELEC) to file the information by the same token that it may rely on the certification made by the prosecutor who conducted the preliminary investigation in the issuance of the warrant of arrest, this Court stressed in Lim vs. Felixlxvii[67] that

Reliance on the COMELEC resolution or the Prosecutor’s certification presupposes that the records of either the COMELEC or the Prosecutor have been submitted to the Judge and he relies on the certification or resolution because the records of the investigation sustain the recommendation. The warrant issues not on the strength of the certification standing alone but because of the records which sustain it.

And noting that judges still suffer from the inertia of decisions and practice under the 1935 and 1973 Constitutions, this Court found it necessary to restate the rule “in greater detail and hopefully clearer terms.” It then proceeded to do so, thus:

We reiterate the ruling in Soliven vs. Makasiar that the Judge does not have to personally examine the complainant and his witnesses. The Prosecutor can perform the same functions as a commissioner for the taking of the evidence. However, there should be a report and necessary documents supporting the Fiscal’s bare certification. All of these should be before the Judge.

The extent of the Judge’s personal examination of the report and its annexes depends on the circumstances of each case. We cannot determine beforehand how cursory or exhaustive the Judge’s examination should be. The Judge has to exercise sound discretion for, after all, the personal determination is vested in the Judge by the Constitution. It can be as brief as or detailed as the circumstances of each case require. To be sure, the Judge must go beyond the Prosecutor’s certification and investigation report whenever, necessary. He should call for the complainant and witnesses themselves to answer the court’s probing questions when the circumstances of the case so require.

This Court then set aside for being null and void the challenged order of respondent Judge Felix directing the issuance of the warrants of arrest against petitioners Lim, et al., solely on the basis of the prosecutor’s certification in the informations that there existed probable cause “without having before him any other basis for his personal determination of the existence of a probable cause.”

In Allado vs. Diokno,lxviii[68] this Court also ruled that “before issuing a warrant of arrest, the judge must satisfy himself that based on the evidence submitted there is sufficient proof that a crime has been committed and that the person to be arrested is probably guilty thereof.”

In the recent case of Webb vs. De Leon,lxix[69] this Court rejected the thesis of the petitioners of absence probable cause and sustained the investigating panel’s and the respondent Judge’s findings of probable cause. After quoting extensively from Soliven vs. Makasiar,lxx[70] this Court explicitly pointed out:

Clearly then, the Constitution, the Rules of Court, and our case law repudiate the submission of petitioners that respondent judges should have conducted “searching examination of witnesses” before issuing warrants of arrest against them. They also reject petitioners’ contention that a judge must first issue an order of arrest before issuing a warrant of arrest. There is no law or rule requiring the issuance of an Order of Arrest prior to a warrant of arrest.

In the case at bar, the DOJ Panel submitted to the trial court its 26-page report, the two (2) sworn statements of Alfaro and the sworn statements of Carlos Cristobal and Lolita Birrer as well as the counter- affidavits of the petitioners. Apparently, the painstaking recital and analysis of the parties’ evidence made in the DOJ Panel Report satisfied both judges that there is probable cause to issue warrants of arrest against petitioners. Again, we stress that before issuing warrants of arrest, judges merely determine personally the probability, not the certainty of the guilt of an accused. In doing so, judges do not conduct a de novo hearing to determine the existence of probable cause. They just personally review the initial determination of the prosecutor finding a probable cause to see if it is supported by substantial evidence. The sufficiency of the review process cannot be measured by merely counting minutes and hours. The fact that it took the respondent judges a few hours to review and affirm the Probable cause determination of the DOJ Panel does not mean they made no personal evaluation of the

evidence attached to the records of the case. (italics supplied)

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

Unfortunately, in Criminal Case No. Q-93-43198, nothing accompanied the information upon its filing on 12 April 1993 with the trial court. As found by the Court of Appeals in its resolution of 1 July 1993, a copy of the Joint Resolution was forwarded to, and received by, the trial court only on 22 April 1993. And as revealed by the certificationlxxi[71] of Branch Clerk of Court Gibson Araula, Jr., no affidavits of the witnesses, transcripts of stenographic notes of the proceedings during the preliminary investigation, or other documents submitted in the course thereof were found in the records of Criminal Case No. Q-93-43198 as of 19 May 1993. Clearly, when respondent Judge Asuncion issued the assailed order of 17 May 1993 directing, among other things, the issuance of warrants of arrest, he had only the information, amended information, and Joint Resolution as bases thereof. He did not have the records or evidence supporting the prosecutor’s finding of probable cause. And strangely enough, he made no specific finding of probable cause; he merely directed the issuance of warrants of arrest “after June 21, 1993.” It may, however, be argued that the directive presupposes a finding of probable cause. But then compliance with a constitutional requirement for the protection of individual liberty cannot be left to presupposition, conjecture, or even convincing logic.

III.

As earlier stated, per its 1st Indorsement of 21 April 1993, the DOJ gave due course to the petitioners’ petition for review pursuant to the exception provided for in Section 4 of Circular No. 7, and directed the Office of the City Prosecutor of Quezon City to forward to the Department the records of the cases and to file in court a motion for the deferment of the proceedings. At the time it issued the indorsement, the DOJ already knew that the information had been filed in court, for which reason it directed the City Prosecutor to inform the Department whether the accused have already been arraigned and if not yet arraigned, to move to defer further proceedings. It must have been fully aware that, pursuant to Crespo vs. Mogul, a motion to dismiss a case filed by the prosecution either as a consequence of a reinvestigation or upon instructions of the Secretary of Justice after a review of the records of the investigation is addressed to the trial court, which has the option to grant or to deny it. Also, it must have been still fresh in its mind that a few months back it had dismissed for lack of probable cause other similar complaints of holders of “349” Pepsi crowns.lxxii[72] Thus, its decision to give due course to the petition must have been prompted by nothing less than an honest conviction that a review of the Joint Resolution was necessary in the highest interest of justice in the light of the special circumstances of the case. That decision was permissible within the “as far as practicable” criterion in Crespo.

Hence, the DOJ committed grave abuse of discretion when it executed on 23 July 1993 a unilateral volte-face, which was even unprovoked by a formal pleading to accomplish the same end, by dismissing the petition for review. It dismissed the petition simply because it thought that a review of the Joint Resolution would be an exercise in futility in that any further action on the part of the Department would depend on the sound discretion of the trial court, and that the latter’s denial of the motion to defer

arraignment filed at the instance of the DOJ was clearly an exercise of that discretion or was, in effect, a signal to the Department that the determination of the case is within the court’s exclusive jurisdiction and competence. This infirmity becomes more pronounced because the reason adduced by the respondent Judge for his denial of the motions to suspend proceedings and hold in abeyance issuance of warrants of arrest and to defer arraignment finds, as yet, no support in Crespo.

IV.

If the only issue before the Court of Appeals were the denial of the petitioners’ Motion to Suspend Proceedings and to Hold in Abeyance Issuance of Warrants of Arrest and the public prosecutor’s Motion to Defer Arraignment, which were both based on the pendency before the DOJ of the petition for the review of the Joint Resolution, the dismissal of CA-G.R. SP No. 31226 on the basis of the dismissal by the DOJ of the petition for review might have been correct. However, the petition likewise involved the issue of whether respondent Judge Asuncion gravely abused his discretion in ordering the issuance of warrants of arrest despite want of basis. The DOJ’s dismissal of the petition for review did not render moot and academic the latter issue.

In denying in its resolution of 1 July 1993 the petitioners’ application for a writ of preliminary injunction to restrain respondent Judge Asuncion from issuing warrants of arrest, the Court of Appeals ,justified its action in this wise:

The Joint Resolution was sufficient in itself to have been relied upon by respondent Judge in convincing himself that probable cause indeed exists for the purpose of issuing the corresponding warrants of arrest. The mere silence of the records or the absence of any express declaration in the questioned Order of May 17, 1993 as to where the respondent Judge based his finding of probable cause does not give rise to any adverse inference on his part. The fact remains that the Joint Resolution was at respondent Judge’s disposal at the time he issued the Order for the issuance of the warrants of arrest. After all, respondent Judge enjoys in his favor the presumption of regularity in the performance of official actuations. And this presumption prevails until it is overcome by clear and convincing evidence to the contrary. Every reasonable intendment will be made in support of the presumption, and in case of doubt as to an officer’s act being lawful or unlawful it should be construed to be lawful. (31 C.J.S., 808-810. See also Mahilum, et al. vs. Court of Appeals, 17 SCRA 482; People vs. Cortez, 21 SCRA 1228; Government of the P.I. vs. Galarosa, 36 Phil. 338).

We are unable to agree with this disquisition, for it merely assumes at least two things: (1) that respondent Judge Asuncion had read and relied on the Joint Resolution and (2) he was convinced that probable cause exists for the issuance of the warrants of arrest against the petitioners. Nothing in the records provides reasonable basis for these assumptions. In his assailed order, the respondent Judge made no mention of the Joint Resolution, which was attached to the records of Criminal Case No. Q-93-43198 on 22 April 1993. Neither did he state that he found probable cause for the issuance of warrants of arrest. And, for an undivinable reason, he directed the issuance of warrants of arrest only “after June 21, 1993.” If he did read the Joint Resolution and, in so reading, found probable cause, there was absolutely no reason at all to delay for more than one month the issuance of warrants of arrest. The most probable explanation for such delay could be that the respondent Judge had actually wanted to wait for a little while for the DOJ to resolve the petition for review.

It is, nevertheless, contended in the dissenting opinion of Mr. Justice Reynato S. Puno that whatever doubts may have lingered on the issue of probable cause was dissolved when no less than the Court of Appeals sustained the finding of probable cause made by the respondent Judge after an evaluation of the Joint Resolution. We are not persuaded with that opinion. It is anchored on erroneous premises. In its 1 July 1993 resolution, the Court of Appeals does not at all state that it either sustained

respondent Judge Asuncion’s finding of probable cause, or found by itself probable cause. As discussed above, it merely presumed that Judge Asuncion might have read the Joint Resolution and found probable cause from a reading thereof. Then too, that statement in the dissenting opinion erroneously assumes that the Joint Resolution can validly serve as sufficient basis for determining probable cause. As stated above, it is not.

V.

In criminal prosecutions, the determination of probable cause may either be an executive or a judicial prerogative. In People vs. Inting,lxxiii[73] this Court aptly stated:

And third, Judges and Prosecutors alike should distinguish the preliminary inquiry which determines probable cause for the issuance of a warrant of arrest from a preliminary investigation proper which ascertains whether the offender should be held for trial or released. Even if the two inquiries are conducted in the course of one and the same proceeding, there should be no confusion about the objectives. The determination of probable cause for the warrant of arrest is made by the Judge. The preliminary investigation proper - whether or not there is reasonable ground to believe that the accused is guilty of the offense charged and, therefore, whether or not he should be subjected to the expense, rigors and embarrassment of trial- is the function of the Prosecutor.

xxx xxx xxx

We reiterate that preliminary investigation should be distinguished as to whether it is an investigation for the determination of a sufficient ground for the filing of the information or it is an investigation for the determination of a probable cause for the issuance of a warrant of arrest. The first kind of preliminary investigation is executive in nature. It is part of the prosecution’s job. The second kind of preliminary investigation which is more properly called preliminary examination is judicial in nature and is lodged with the judge x x x.

Ordinarily, the determination of probable cause is not lodged with this Court. Its duty in an appropriate case is confined to the issue of whether the executive or judicial determination, as the case may be, of probable cause was done without or in excess of jurisdiction or with grave abuse of discretion amounting to want of jurisdiction. This is consistent with the general rule that criminal prosecutions may not be restrained or stayed by injunction, preliminary or final. There are, however, exceptions to this rule. Among the exceptions are enumerated in Brocka vs. Enrilelxxiv[74] as follows:

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, 1953). (cited in Regalado, Remedial Law Compendium, p. 188, 1988 Ed.)

In these exceptional cases, this Court may ultimately resolve the existence or non-existence of probable cause by examining the records of the preliminary investigation, as it did in Salonga vs. Paño,lxxv[75] Allado, and Webb.

There can be no doubt that, in light of the several thousand private complainants in Criminal Case No. Q-93-43198 and several thousands more in different parts of the country who are similarly situated as the former for being holders of “349” Pepsi crowns, any affirmative holding of probable cause in the said case may cause or provoke, as justly feared by the petitioners, the filing of several thousand cases in various courts throughout the country. Inevitably, the petitioners would be exposed to the harassments of warrants of arrest issued by such courts and to huge expenditures for premiums on bailbonds and for travels from one court to another throughout the length and breadth of the archipelago for their arraignments and trials in such cases. Worse, the filing of these staggering number of cases would necessarily affect the trial calendar of our overburdened judges and take much of their attention, time, and energy, which they could devote to other equally, if not more, important cases. Such a frightful scenario would seriously affect the orderly administration of justice, or cause oppression or multiplicity of actions - a situation already long conceded by this Court to be an exception to the general rule that criminal prosecutions may not be restrained or stayed by injunction.lxxvi[76]

We shall not, however, reevaluate the evidence to determine if indeed there is probable cause for the issuance of warrants of arrest in Criminal Case No. Q-93-43298. For, as earlier stated, the respondent Judge did not, in fact, find that probable cause exists, and if he did he did not have the basis therefor as mandated by Soliven, Inting, Lim, Allado, and even Webb. Moreover, the records of the preliminary investigation in Criminal Case No. Q-93-43198 are not with this Court. They were forwarded by the Office of the City Prosecutor of Quezon City to the DOJ in compliance with the latter’s 1st Indorsement of 21 April 1993. The trial court and the DOJ must be required to perform their duty.

WHEREFORE, the instant petition is granted and the following are hereby SET ASIDE:

(a)Decision of 28 September 1993 and Resolution of 9 February 1994 of respondent Court of Appeals in CA-G.R. SP No. 31226;

(b)The Resolution of the “349” Committee of the Department of Justice of 23 July 1993 dismissing the petitioners’ petition for review and of 3 February 1994 denying the motion to reconsider the dismissal; and

(c) The Order of respondent Judge Maximiano C. Asuncion of 17 May 1993 in Criminal Case No. Q-93-43198.

The Department of Justice is DIRECTED to resolve on the merits, within sixty (60) days from notice of this decision, the petitioners’ petition for the review of the Joint Resolution of Investigating Prosecutor Ramon Gerona and thereafter to file the appropriate motion or pleading in Criminal Case No. Q-93-43198, which respondent Judge Asuncion shall then resolve in light of Crespo vs. Mogul, Soliven vs. Makasiar,

People vs. Inting, Lim vs. Felix, Allado vs. Diokno, and Webb vs. De Leon.

In the meantime, respondent Judge Asuncion is DIRECTED to cease and desist from further proceeding with Criminal Case No. Q-93-43198 and to defer the issuance of warrants of arrest against the petitioners.

No pronouncement as to costs.

SO ORDERED.

Padilla, Bellosillo, and Hermosisima, Jr., JJ., concur.Narvasa, C.J. (Chairman), see separate concurring opinion.Regalado, J., joins the dissent of J. Puno, pro hac vice.Romero, Melo and Mendoza, JJ., join in the dissent of Justice Puno.Puno, J., dissents.Vitug, J., concurs in the opinions of the ponente and the Chief Justice.Kapunan, J., in the result.Francisco, J., No part. Ponente of the assailed decision.Panganiban, J, No Part. Daughter is a management officer of Pepsi Cola, Head

Office, NY, USA.

i[1] Annex “A” of Petition; Rollo, 64-68. Per Justice, now Associate Justice of this Court, Francisco, R., with Tayao-Jaguros, L. and Verzola, E., JJ., concurring.

ii[2] Annex “B” of Petition; Rollo, 69-72.

iii[3] Annex “C”, Id.; Id., 3-74.

iv[4] Annexes “D” and “E”, Id.; Id., 75-78.

v[5] Rollo, 19.

vi[6] Those represented alone by Atty. Bonifacio Manansala are enumerated, single space, in 91 pages of legal size bond paper, with an average of 55 names, more or less, per page (Id., Vol.2, 913-1003) and in his Memorandum-Explanation dated 16 February 1995, he discloses that he is “presently representing more than 7,000 claimants” (Id., Vol. 1, 648). Atty. Jose Espinas revealed in his Comment that he represents “700 INDIVIDUAL COMPLAINANTS, MORE OR LESS” (Id., Vol. 1,567). Atty. Julio Contreras claims in his Compliance of 10 September 1995 to represent “4,406” (Id., Vol.2, unpaginated).

vii[7] Originally held from 17 February to 8 May 1992, but later extended from 11 May to 12 June 1992.

viii[8] Entitled, “Strengthening the Rule-Making and Adjudicatory Powers of the Minister of Trade and Industry in order to further Protect Consumers.”

ix[9] Entitled, “An Act to Penalize Fraudulent Advertising, Mislabeling or Misbranding of Any Product, Stocks, Bonds, Etc..”

x[10] Rollo, Vol. 1, 152-168; 191-212.

xi[11] id., 209-210.

xii[12] Rollo, Vol. 1, 210.

xiii[13] Records (OR), Criminal Case No. Q-93-43198, Vol. 1 (hereinafter referred to as OR-RTC, Vol. 1), 1-3.

xiv[14] OR-RTC, Vol. 1, 4-24.

xv[15] OR-RTC, Vol. 1, 28-49.

xvi[16] Id. 25-27, 67-68.

xvii[17] OR-RTC, Vol. 1, 291.

xviii[18] See stamped entry on top of page 1 of the Information; Id., 1.

xix[19] Id., 299.

xx[20] Id., 232-240.

xxi[21] OR-RTC Vol. 1, 288.

xxii[22] Id., 289-290.

xxiii[23] Id., Vol. 2, 1-3.

xxiv[24] Id., 4.

xxv[25] Id., 5.

xxvi[26] Id., 6-11.

xxvii[27] Id., 12-17, 48-54.

xxviii[28] OR-RTC, Vol. 1, 55-64.

xxix[29] Id., Vol. 2, 65-66.

xxx[30] Rollo, CA-G.R. SP No. 31226 (hereinafter referred to as Rollo-CA), 1-39; see also OR-RTC, Vol. 2, 79-116.

xxxi[31] Id., 157; Id., 229.

xxxii[32] OR-RTC, Vol. 2, 233.

xxxiii[33] Rollo-CA, 193-194.

xxxiv[34] Id., 196-201.

xxxv[35] Rollo-CA, 288.

xxxvi[36] Id., 296.

xxxvii[37] Id., 334-335.

xxxviii[38] Id., 336-337.

xxxix[39] Id., 488-493.

xl[40] Rollo-CA, 336-337; 490-491.

xli[41] Per Justice, now Associate Justice of this Court, Francisco, R., with Tayao-Jaguros, L. and Verzola, E., JJ., concurring.

xlii[42] Should be “petitioners.”

xliii[43] Rollo, Vol. 1, 77-78.

xliv[44] Rollo-CA, 500-507.

xlv[45] Id., 575-577.

xlvi[46] Rollo, Vol. 1, 425-431.

xlvii[47] Id., 456-484.

xlviii[48] Id., 533-539.

xlix[49] Id., 526-530.

l[50] Id., 555.

li[51] 151 SCRA 462 [1987].

lii[52] Supra note 51, at 471-472.

liii[53] 235 SCRA 39 [1994].

liv[54] The said paragraph reads as follows:

If upon petition by a proper party, the Minister of Justice reverses the resolution of the provincial or city fiscal or chief state prosecutor, he shall direct the fiscal concerned to file the corresponding information without conducting another preliminary investigation or to dismiss or move for the dismissal of the complaint or information. (italics supplied)

lv[55] The said section reads:

SEC. 4. Non-appealable cases; Exceptions. -No appeal may be taken from a resolution of the Chief State Prosecutor/Regional State Prosecutor/Provincial or City Prosecutor finding probable cause except upon showing of manifest error or grave abuse of discretion. Notwithstanding the showing of manifest error or grave abuse of discretion, no appeal shall be entertained where the appellant had already been arraigned. If the appellant is arraigned during the pendency of the appeal, said appeal shall be dismissed motu proprio by the Secretary of Justice.

An appeal/motion for reinvestigation from a resolution finding probable cause, however, shall not hold the filing of the information in court.

lvi[56] Revised Rules on Appeals from Resolutions in Preliminary Investigations/Reinvestigations.

lvii[57] Supra note 51, at 471

lviii[58] 237 SCRA 575, 585-586 [1994]. See also Dee vs. Court of Appeals, 238 SCRA 254 [1994].

lix[59] Third paragraph, Section 87, The Judiciary Act of 1948 (R.A. No. 269), as amended by R.A. Nos. 2613 and 3828, which provides:

No warrant of arrest shall be issued by any municipal judge in any criminal case filed with him unless he first examines the witness or witnesses personally, and the examination shall be under oath and reduced to writing in the form of searching questions and answers.

lx[60] Second paragraph, Section 10, 1983 Rule on Summary Procedure, which provides:

Failure on the part of the defendant to appear wherever required shall cause the issuance of a warrant for his arrest if the court shall find that a probable cause exists after an examination in writing and under oath or affirmation of the complainant and his witnesses.

Section 16, 1991 Revised Rule on Summary Procedure, which provides:

The court shall not order the arrest of the accused except for failure to appear whenever required. Release of the person arrested shall either be on bail or on recognizance by a responsible citizen acceptable to the court.

lxi[61] Section 6(b), Rule 112, Rules of Court, which reads:

If the municipal trial judge conducting the preliminary investigation is satisfied after an examination in writing and under oath of the complainant and his witnesses, in the form of searching questions and answers, that a probable cause exists and that there is a necessity of placing the respondent under immediate custody in order not to frustrate the ends of justice.

Section 37, The Judiciary Reorganization Act of 1980 (B.P. Blg. 129), which reads in part as follows:

No warrant of arrest shall be issued by the Judge in connection with any criminal complaint filed with him for preliminary investigation, unless after an examination in writing and under oath or affirmation of the complainant and his witnesses he finds that probable cause exists.

lxii[62] 62 Section 6(a), Rule 112, Rules of Court, which reads:

Section 6. When warrant of arrest may issue. –

(a) By the Regional Trial Court. - Upon the filing of an information, the Regional Trial Court may issue a warrant for the arrest of the accused.

lxiii[63] 167 SCRA 393 [1988].

lxiv[64] Id., 398.

lxv[65] 187 SCRA 788, 792 [1990].

lxvi[66] 189 SCRA 715 [1990].

lxvii[67] 194 SCRA 292, 305 [1991].

lxviii[68] 232 SCRA 192,201 [1994].

lxix[69] G.R. No. 121234 and companion cases, 23 August 1995.

lxx[70] Supra, note 63.

lxxi[71] OR-RTC, Vol. 2, 68

lxxii[72] See for instance the resolutions of 12 January 1993 in the case filed by Merelita Napuran in the Office of the Provincial Prosecutor of Palo, Leyte (Rollo, Vol. 1, 223); and 14 January 1993 in cases filed with the office of the City Prosecutor of Lucena City (Id., 227). It did likewise on 8 November 1993 in cases filed before the Provincial Prosecutor of Pangasinan (Id., 236); and 10 November 1993 in cases filed with the City Prosecutor of Ozamiz City (Id., 245).

lxxiii[73] Supra note 65.

lxxiv[74] 192 SCRA 183, 188-189 [1990].

lxxv[75] 134 SCRA 438 [1985].

lxxvi[76] Dimayuga vs. Fernandez, 43 Phil. 304 [1922], and Fortun vs. Labang, 104 SCRA 607 [1981], cited in Brocka vs. Enrile, supra note 75

FIRST DIVISION

HEIRS OF FEDERICO C.

DELGADO and ANNALISA

PESICO,

Petitioner

s,

- versus -

LUISITO Q. GONZALEZ and

ANTONIO T. BUENAFLOR,

Responden

ts.

G.R. No. 184337

Present:

CARPIO, Chairperson,

CARPIO MORALES,*

VELASCO, JR.,*

LEONARDO-DE CASTRO,

and

BERSAMIN, JJ.

Promulgated:

August 7, 2009

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

x

DECISION

CARPIO, J.:

The Case

Before the Court is a petition for review on certiorari[1] assailing the Amended

Decision[2] dated 29 August 2008 of the Court of Appeals’ Former Special Seventh

Division, which reversed the Original Decision[3] dated 18 March 2008 of the Court of

Appeals’ Seventh Division, in CA-G.R. SP No. 101196.

The Antecedent Facts

O11 March 2007, the police found the dead body of Federico C. Delgado

(Delgado) at his residence in Mayflower Building, 2515 Leon Guinto corner Estrada

Streets, Malate, Manila. The police was alerted by Annalisa D. Pesico (Pesico), who

allegedly was present at the time of the commission of the crime and was likewise

injured in the incident.[4]

On 1 June 2007, on behalf of Pesico and the heirs of Delgado

(petitioners),[5] the Manila Police District (MPD), represented by

Alejandro B. Yanquiling Jr., Chief of the Homicide Section, filed a

complaint-affidavit[6] with the Office of the City Prosecutor of Manila.

The MPD charged respondents Luisito Q. Gonzalez (Gonzalez) and

Antonio T. Buenaflor (Buenaflor) with the murder of Delgado and

frustrated murder of Pesico. Gonzalez is the stepbrother of the

deceased and Buenaflor was a former driver for 15 years of Citadel

Corporation, owned by the Delgado family.

Together with the complaint-affidavit, the police presented the

following documents:

1. Sworn Statement (“Sinumpaang Salaysay”) of Pesico dated

11 March 2007;[7]

2. Supplemental Sworn Statement (“Karagdagang

Sinumpaang Salaysay”) of Pesico dated 15 March 2007;[8]

and

3. Crime and Progress Reports of Senior Police Officer 2

(SPO2) Virgo Ban Villareal dated 23 March 2007.[9]

At petitioners’ request, the case was transferred to the

Department of Justice (DOJ) for preliminary investigation.[10] On 20

June 2007, the MPD filed a Supplemental Complaint-Affidavit[11] and

attached the following additional documents:

1. Scene of the Crime Operation (SOCO) Report dated 11 March

2007;[12]

2. Medical Certificate of Pesico from the Ospital ng Maynila dated

7 June 2007;[13]

3. Cartographic Sketch of one of the suspects dated 13 March 2007,

drawn by an artist sketcher of the MPD, as described by Pesico;[14]

4. Photographs of criminals and Delgado’s family members, relatives,

friends and employees, shown to Pesico, where she recognized

Gonzalez and Buenaflor as the ones who mauled her and murdered

Delgado;[15]

5. Affidavit of SPO2 Virgo Ban Villareal dated 15 June 2007 attesting to

the identification made by Pesico after viewing said photographs;[16]

6. Affidavit of Retired Police Superintendent Leonito Manipol Cantollas,

the forensic document examiner who analyzed the questioned

handwritten word “FRANCO,” the inscription on a wall found at the

crime scene;[17]

7. Questioned Document Examination Report No. 004-07 of Leonito

Manipol Cantollas;[18]

8. Curriculum Vitae of Leonito Manipol Cantollas;[19]

9. Complaint-Affidavit for Robbery filed by Jose Mari C. Delgado,

stepbrother of Gonzalez, against Ruby Q. Gonzalez-Meyer, sister of

Gonzalez;[20]

10. Letter via electronic mail dated 4 July 2003 written by Ruby Q.

Gonzalez-Meyer to her and Gonzalez’s mother, Vicky Quirino

Gonzalez-Delgado;[21]

11. Newspaper clipping taken from the Philippine Daily Inquirer

dated 26 March 2007, where Gonzalez’s wife, Kuh Ledesma,

talked about him, their relationship and the accusations that

her husband was facing;[22]

12. Newspaper clipping taken from the Philippine Daily Inquirer

dated 22 March 2007, referring to the family feud between the

Delgado and Gonzalez siblings;[23] and

13. Police Blotter dated 16 March 2007 reported by Atty. Augusto

M. Perez, Jr., lawyer of Francisco “Franco” Delgado III,

regarding a threatening phone call by an unknown caller made

on 15 March 2007 at the latter’s residence.[24]

Gonzalez and Buenaflor filed their Counter-Affidavits,

respectively.[25] Together with his counter-affidavit, Gonzalez attached

relevant documents[26] establishing his confinement at the Neuro-

Psychiatric Unit of the Makati Medical Center from 7 March 2007 until

18 March 2007 and the corroborative affidavits of 29 impartial and

independent witnesses composed of physicians, nurses and personnel

of said hospital.[27] On the other hand, Buenaflor presented the

affidavit of his employer, who attested that Buenaflor was on duty and

driving for him at the time of Delgado’s death.[28]

Acting City Prosecutor of Manila Cielitolindo A. Luyun

(Investigating Prosecutor) conducted the preliminary investigation and

evaluated the evidence submitted by the MPD, as well as

respondents’ Counter-Affidavits, corroborating affidavits of 29

witnesses, and supporting documentary evidence. In a Resolution

dated 10 September 2007, the Investigating Prosecutor dismissed the

complaint for lack of probable cause that respondents committed the

crimes of murder and frustrated murder.[29]

On 18 September 2007, petitioners filed a Petition for Review

with the Secretary of Justice. On 15 October 2007, then Acting

Secretary of Justice Agnes VST Devanadera (Acting Secretary

Devanadera) reversed the finding of the Investigating Prosecutor and

directed the filing of separate informations for murder and less serious

physical injuries against respondents.[30]

On 18 October 2007, respondents filed a Motion for

Reconsideration which was denied by Acting Secretary Devanadera in

a Resolution dated 26 October 2007.[31]

On 30 October 2007, the corresponding Informations were filed.

The charge for the crime of murder was filed before the Regional Trial

Court (RTC) of Manila, Branch 32, docketed as Criminal Case No. 07-

257487. The charge of less serious physical injuries was filed before

the Metropolitan Trial Court of Manila, Branch 9, docketed as Criminal

Case No. 441878.[32]

Thereafter, respondents filed with the Court of Appeals a petition

for certiorari and prohibition under Rule 65, docketed as CA-G.R. SP

No. 101196, assailing the Resolutions of Acting Secretary Devanadera

dated 15 October 2007 and 26 October 2007.[33]

The Ruling of the Court of Appeals

On 18 March 2008, the Court of Appeals, in its Original Decision,

dismissed the petition and denied respondents’ application for

preliminary and/or permanent injunctive writ. The appellate court

found no grave abuse of discretion on the part of Acting Secretary

Devanadera in issuing the Resolutions dated 15 October 2007 and 26

October 2007. It affirmed the existence of probable cause when

Pesico, the lone eyewitness of the commission of the crime, positively

identified respondents as the perpetrators. The relevant portion of

the Original Decision states:

As held by public respondent, probable cause was met, and rightly so,

when Pesico, the lone eyewitness of the commission of the crime

positively identified petitioners as the authors of the bestial act. To

cast doubt on Pesico’s positive identification of petitioners, the latter

pointed to the alleged inconsistencies in the two affidavits that the

former has executed and such other circumstances surrounding the

commission of the crime showing the improbability of identification.

But as correctly ruled by public respondent, these are minor

inconsistencies and matters which are not enough, at that stage in

time, to overthrow the possibility and credibility of identification.

On the one hand are the following facts, established by the complaints: (1)

That Pesico, who was likewise injured, witnessed the commission of the crime; (2)

Her condition, despite the injury caused by the blunt object that was used to maul

her, with swollen eyes, tied in the arms and legs, does not totally forestall the

possibility that she could have seen and identified the assailants; (3) Pesico

identified petitioners as the authors of the complained acts; and (4) No evidence

to show that Pesico and petitioners know each other as to entertain any possibility

that her identification may have been prompted by ill-motive. On the other, are

petitioners’ defense of alibi and denial which they assert were not considered by

public respondent.

In order to overthrow the jurisprudential injunction of giving superior regard

to positive identification over the defenses of alibi and denial, these defenses

should be clearly established and must not leave any room for doubt as to its

plausibility and verity. It (alibi) cannot prevail over the positive testimonies of the

prosecution witnesses who have no motive to testify falsely against the accused.

The burden of evidence, thus, shifts on the respondents to show that their

defenses of alibi and denial are strong enough to defeat probable cause, which

was engendered by the prosecution’s alleged eyewitness’ positive identification of

them as the assailants to the crime under investigation. Moreover, for alibi to

prosper, there must be proof that it was physically impossible for the accused to

be at the scene of the crime at the time it was committed. At this juncture, We

note the undisputed fact, concerning the accessibility of the distance between the

crime scene and the hospital where petitioner Gonzale[z] alleged to have been

detailed/admitted. The same is true with petitioner Buenaflor who was only in the

vicinity of Roxas Boulevard. Considering the distance of the locus criminis and the

places petitioners alleged they were at the time of the commission of the crime,

neither their arguments nor the affidavits of their witnesses draw out the

possibility, nay create physical impossibility, that they may have been at the

scene of the crime when it was committed.

x x x

IN VIEW OF THE FOREGOING, We find no grave abuse of discretion on the

part of the Acting Secretary of Justice in issuing the Resolutions dated 15 October

2007 and 26 October 2007.

ACCORDINGLY, the present Petition is hereby DISMISSED and petitioners’

application for preliminary (and/or permanent) injunctive writ is necessarily

denied.

SO ORDERED.[34]

Respondents then filed a Motion for Reconsideration with the

Court of Appeals on 27 March 2008.[35]

Meanwhile, on 3 July 2008, the RTC ordered that warrants of

arrest be issued against respondents.[36] On 16 and 21 July 2008,

Gonzalez and Buenaflor, respectively, surrendered voluntarily to the

police.[37] On 28 July 2008, respondents filed with the RTC a Motion

for Reconsideration (of the Order dated 3 July 2008).

To address the motion for reconsideration filed by respondents,

the Court of Appeals held oral arguments on 17 July 2008. After said

hearing, the appellate court issued an Amended Decision dated 29

August 2008. In the Amended Decision, the Court of Appeals granted

the motion for reconsideration and ordered that the Informations

charging petitioners with murder and less serious physical injuries be

quashed and dismissed. The relevant portion of the Amended

Decision states:

This Court has carefully evaluated the evidence of the parties

once more, and its reassessment of the evidence compels it to

reconsider its previous affirmation of public respondent Acting

Secretary of Justice’s finding of probably cause. The Court’s incisive

scrutiny of the evidence led it to the conclusion that there was really

insufficient evidence to support public respondent Acting Secretary of

Justice’s finding of probable cause. It is significant to stress at this

point that while “probable guilt” and “evidence less than sufficient for

conviction” is the threshold in probable cause determinations, it is

also important nay indispensable that there be sufficient and credible

evidence to demonstrate the existence of probable cause.

x x x

Public respondent Acting Secretary of Justice’s finding of probable

cause against the petitioners is based solely on the account of the

prosecution’s lone eyewitness, private respondent Annalisa Pesico. x x

x

It is once apparent that public respondent Acting Secretary of Justice did not

really dwell on the essential facts of the case, much less dig through the crucial

details of private respondent Pesico’s account. Curiously, a close reading of

public respondent Acting Secretary of Justice’s assailed resolution reveals that

except for the rather sweeping finding that private respondent Pesico “positively

identified” the petitioners, most of it were re-statements, without more, of broad

principles and presumptions in criminal law, such as the doctrines on alibi, denial,

and positive identification. Such disposition utterly falls short of the admonitions

enunciated in Salonga and reiterated in Allado. Indeed, while probable cause

should be determined in a summary manner, there is a need to examine the

evidence with care to prevent material damage to a potential accused’s

constitutional right to liberty and the guarantees of freedom and fair play, and to

protect the State from the burden of unnecessary expenses in prosecuting alleged

offenses and holding trials arising from false, fraudulent or groundless charges. x

x x

The pivotal question then is, was there really positive identification of the

petitioners?

In People vs. Teehankee, Jr., the Supreme Court explained the procedure for

out-of-court identification and the test to determine the admissibility of such

identification, thus:

“x x x Out-of-court identification is conducted by the

police in various ways. It is done thru show-ups where the

suspect alone is brought face to face with the witness for

identification. It is done thru mug shots where

photographs are shown to the witness to identify the

suspect. It is also done thru line-ups where a witness

identifies the suspect from a group of persons lined up for

the purpose. Since corruption of out-of-court

identification contaminates the integrity of in-court

identification during the trial of the case, courts have

fashioned out rules to assure its fairness and its

compliance with the requirements of constitutional due

process. In resolving the admissibility of and relying on

out-of-court identification of suspects, courts have

adopted the totality of circumstances test where they

consider the following factors, viz: (1) the witness’

opportunity to view the criminal at the time of the crime;

(2) the witness’ degree of attention at that time; (3) the

accuracy of any prior description given by the witness;

(4) the level of certainty demonstrated by the witness at

the identification; (5) the length of time between the

crime and the identification; and (6) the suggestiveness of

the identification procedure.”

Taking into consideration the foregoing test, this Court finds sufficient

reasons to seriously doubt the identification made by private respondent Pesico

pointing to the petitioners as the culprits.

First, a careful analysis of private respondent Pesico’s account would reveal

that she did not really have sufficient opportunity to view the assailants at the

time of the commission of the crime. By her own account, private respondent

Pesico narrated that as they were about to enter Federico’s room, two (2) men

suddenly came out from the room and immediately stabbed Federico, while she

was also hit with a hard object on her head and body. Considering the

suddenness of the attack plus the fact that the assailants had “covers” or masks

on their faces, it was certainly not possible, at that instance, that she could have

seen their faces. In a later statement which she executed four (4) days after, she

nonetheless repaired her account by explaining that while petitioners had

“covers” on their faces and while her own face was covered with towel and some

pieces of clothing, she nevertheless, can still see through them, as in fact, she

saw the face of petitioner Luisito Gonzale[z] when the latter allegedly removed

the cover in his face because of the humidity inside the room. At this point,

private respondent Pesico was obviously referring at that particular instance when

she was lying down on the floor inside the dressing room. This Court entertains

nagging doubts in this respect. x x x

Second, private respondent Pesico utterly missed out important details in

her first narration of the events that transpired during the commission of the

crime. Significant details such as the “covers” or masks on the faces of the

assailants, the strong Visayan accent of one of the assailant, that the television

was turned “on”, that the assailants removed their masks because of the heat in

the room, that her face was covered with towel and some pieces of clothing, etc.,

were entirely lacking in her first sworn statement, and were only supplied later in

her second sworn statement. While her first sworn statement undoubtedly counts

as a “fresh account” of the incident, there are valid reasons to suspect that the

second sworn statement could have been tainted, if not supplied or suggested,

considering the intervening time between the execution of the first and second

statements.

Third, there was little certainty in private respondent Pesico’s identification.

There was no mention at all of any distinguishing characteristics like the height,

weight, built, complexion, hair, moles, mustache, etc. of the assailants, not to

mention the attire or the color of their clothing, individual mannerisms or

gestures, accessories, if any, that could perhaps specifically identify the

petitioners as the assailants. There was of course private respondent Pesico’s

account that one of the assailants had a strong Visayan accent, fierce eyes and

pointed face but such was rather too general a description to discriminate

petitioners against a thousand and one suspects who would similarly possess such

description. Furthermore, while private respondent Pesico claimed to have seen

the faces of both the assailant, there was only one cartographic sketch of one

suspect. Oddly enough, the cartographic sketch does not even strike any close

resemblance to the facial features of anyone of the petitioners.

Fourth, there was sufficient lapse of time between the time of the

commission of the crimes when private respondent Pesico allegedly saw the

assailants and the time she made her identification. The intervening period, i.e.,

four (4) days to be exact, was more than sufficient to have exposed what was

otherwise accurate and honest perception of the assailants to “extraneous

influences”, which more or less leads this Court to conclude that private

respondent Pesico’s identification of the petitioners could not have been

uncontaminated. This, in light of the fact that prior to the identification, private

respondent Pesico was part of the joint inspection of the crime scene conducted

by the police investigators with the members of the Delgado family, who, at that

time floated the “family feud” theory of the case.

Fifth, this Court finds the “photo line-up” identification conducted by the

police investigators to be totally unreliable and particularly dangerous, the same

being impermissibly suggestive. The pictures shown to private respondent Pesico

consisted mainly of the members of the Delgado family, employees and close

associates, let alone the fact that in the particular picture from which petitioner

Luisito Gonzale[z] was identified by private respondent Pesico as one of the

assailants, he was the only male individual. Juxtaposed with the “family feud”

angle of the case, there is compelling reason to believe that petitioner Luisito

Gonzale[z] was isolated and suggested, wittingly or unwittingly, by the police

investigators as a prime suspect in the case.

In sum, this Court is of the view that petitioner Luisito Gonzale[z]’s

identification was less than trustworthy and could not have been positive but

merely derivative.

x x x

In light of the significant improbabilities, uncertainties and inconsistencies in

private respondent Pesico’s account, as well as the total unreliability of the

identification she made, the petitioners’ alibi and denial thus assume

commensurate strength. Their alibi and denial assume particular importance in

this case as the same are corroborated by no less than twenty-nine (29) impartial

and disinterested witnesses. x x x Thus taking into account these 29 sworn

statements, it was certainly impossible for the petitioners to have been at the

locus criminis. x x x Alibi is not always undeserving of credit, for there are times

when the accused has no other possible defense for what could really be the truth

as to his whereabouts at the crucial time, and such defense may in fact tilt the

scales of justice in his favor.[38]

The Solicitor General, who is now Agnes VST Devanadera, did not

appeal the appellate court’s Amended Decision which reversed her

Resolutions of 15 October 2007 and 26 October 2007 when she was

Acting Secretary of Justice. In G.R. No. 184507, the Solicitor General

filed a Motion for Extension of Time to file a Petition for Review under

Rule 45 before this Court. However, the 30 day extension given had

lapsed without the filing of said petition. Thus, the Court, in a

Resolution dated 8 December 2008, declared G.R. No. 184507 closed

and terminated.

On 10 September 2008, respondents filed with the Court of

Appeals an Urgent Motion to Order the Amended Decision dated 29

August 2008 as Immediately Executory.[39]

On 18 September 2008, petitioners filed a Petition for Review

under Rule 45 before this Court.[40] Respondents, in connection with

the Petition for Review, filed a “Motion for the Release (On Bond, If

Required).”

On 2 October 2008, the Court of Appeals issued a Resolution

denying the motion filed on 10 September 2008.[41] Thereafter,

respondents filed a Motion for Reconsideration.

Meanwhile, on 7 October 2008, the RTC issued an Order

suspending the proceedings in Criminal Case No. 07-257487 and

effectively deferred the resolution of respondents’ Motion for

Reconsideration (of the Order dated 3 July 2008) pending a decision

by this Court on the Petition for Review filed by petitioners. The RTC

also ordered that both respondents remain in custody.[42]

On 5 November 2008, the Court of Appeals issued another

Resolution denying the motion for reconsideration of its 2 October

2008 Resolution, stating that with due deference to the Supreme

Court as the final arbiter of all controversies, the Court of Appeals

forbids itself from declaring the 29 August 2008 Amended Decision as

immediately executory. It held further that since an appeal by

certiorari to the Supreme Court had already been filed by petitioners,

any motion for execution pending appeal should now be filed with the

Supreme Court.[43]

Hence, this petition.

On 10 December 2008, this Court conducted oral arguments to

hear the respective parties’ sides. In a Resolution dated 17 December

2008, this Court, acting upon the “Motion for the Release (On Bond, If

Required)” filed by respondents, ordered the RTC of Manila, Branch

32, to hear respondents’ application for bail with deliberate dispatch,

since this Court is not in a position to grant bail to respondents as

such grant requires evidentiary hearing that should be conducted by

the trial court where the murder case is pending.

On 5 January 2009, respondents filed a Motion for

Reconsideration of this Court’s Resolution dated 17 December 2008.

On 16 March 2009, this Court denied the motion for reconsideration

and directed the RTC of Manila, Branch 32, to conduct a summary

hearing on bail and to resolve the same within thirty (30) days from

receipt of the resolution.

The RTC of Manila, Branch 32, issued an Order dated 27 March

2009 setting a hearing on bail on 2 April 2009. On 7 April 2009,

respondents filed with this Court a Manifestation Waiving the “Motion

for the Release (On Bond, If Required)” dated 17 November 2008.

Respondents manifested that they waive and abandon their motion

for bail.

The Issues

Petitioners submit the following issues for our consideration:

1. Whether petitioners possess the legal standing to sue and whether petitioners can be considered as the real parties in interest; that the DOJ Secretary as represented by the Solicitor General is a mere nominal party; that the “People” as represented by the City Prosecutor of Manila was not an impleaded party before the Court of Appeals; that, unnotified of, and unserved with the amended decision of the Court of Appeals, the “People” is not bound thereby; and that, therefore, neither the Secretary of Justice nor the “People” were called upon to appeal to the Supreme Court.[44]

2. Whether the amended decision of the Court of Appeals is final and can be the subject of execution pending appeal.[45]

3. Whether the Court of Appeals committed reversible and whimsical errors of law in the amended decision warranting reversal of the same[46] in view of the following reasons:

a. There were plain, speedy and adequate remedies available

to respondents prior to their filing of certiorari before the

Court of Appeals.[47]

b. The Secretary of Justice did not commit grave abuse of

discretion in her determination of probable cause.[48]

c. The Court of Appeals strayed from the determination of

grave abuse of discretion and instead evaluated the evidence

de novo, and erroneously increased the quantum of evidence

required for determining probable cause.[49]

d. The Court of Appeals erroneously substituted its judgment for the

Secretary of Justice.[50]

e. The Court of Appeals undermined the jurisdiction of the RTC over

the criminal proceedings by virtue of the filing of the Information

therein.[51]

The Court’s Ruling

On petitioners’ standing to file the petition and

the finality of the Amended Decision

Petitioners contend that the parties impleaded in the Petition for

Certiorari filed by respondents before the Court of Appeals in CA-G.R.

SP No. 101196 were Acting Secretary Devanadera, Heirs of Federico

C. Delgado and Annalisa D. Pesico. The “People of the Philippines”

was never made as one of the parties and neither was it notified

through the City Prosecutor of Manila.[52] Petitioners claim that in

criminal proceedings where the only issue is probable cause or grave

abuse of discretion in relation thereto, the private complainant and

the private respondent are the parties. In such proceedings, the

“People of the Philippines” is not yet involved as it becomes a party to

the main criminal proceedings only when the Information is filed with

the trial court.[53]

Petitioners allege that although Informations were filed before

the lower courts after respondents filed a Petition for Review with the

Court of Appeals, it does not change the reality that all the

proceedings before the DOJ, Court of Appeals and this Court involve

only the issues on (1) probable cause, (2) the alleged grave abuse of

discretion by the Acting Secretary of Justice, and (3) the reversible

errors of law and grave abuse of discretion on the part of the Court of

Appeals in promulgating the assailed Amended Decision.

It is petitioners’ contention that while the Acting Secretary of

Justice is a public respondent, she is at best a nominal or pro forma

party. Hence, the Solicitor General had no obligation to appeal the

case to this Court to represent the Secretary of Justice as a nominal

party.[54] Further, the Solicitor General’s non-participation in this case

is not a fatal defect that jeopardizes petitioners’ legal standing as

complainants in the preliminary investigation proceedings, appellants

before the Secretary of Justice, respondents in the Court of Appeals

and petitioners before this Court.[55]

Petitioners state that they are the real parties in interest who can

naturally be expected to file a case for the death of their brother.

Citing Narciso v. Sta. Romana-Cruz,[56] petitioners claim that a sister of

the deceased is a proper party-litigant who is akin to the offended

party.

Respondents argue that petitioners cannot claim that the instant

proceeding is not part of the criminal case proper because the

preliminary investigation has already been concluded.[57] Quoting

Section 9 of the 2000 National Prosecution Service Rule on Appeal, [58]

respondents claim that an information may be filed even if the review

of the resolution by the Secretary of Justice is still available. The

preliminary investigation, having been concluded, the private

offended parties no longer have the personality to participate by

themselves in the succeeding proceedings. Respondents insist that

when petitioners asserted their right to prosecute a person for a

crime, through the filing of an information, the State, through its

prosecutorial arm, is from that point on, the only real party in interest.

[59]

Respondents maintain that only the Solicitor General may

represent the State in appellate proceedings of a criminal case.[60] The

Acting Secretary of Justice cannot be properly characterized as a

nominal party because it is the real party in interest, whose right to

prosecute offenses is at stake. The Acting Secretary of Justice, in

issuing a resolution that there is probable cause to charge a person

with an offense, asserts the right of the State to prosecute a person

for the commission of a crime.[61] Thus, the participation of the private

offended parties before the Court of Appeals is not necessary for

complete relief to be had, and it is certainly not indispensable for a

final determination of the case.[62]

Section 35, Chapter 12, Title III, Book IV of the Administrative Code

of 1987 states that the Office of the Solicitor General shall

represent the Government of the Philippines, its agencies and

instrumentalities and its officials and agents in any litigation,

proceeding, investigation or matter requiring the services of

lawyers. Likewise, the Solicitor General shall represent the

Government in the Supreme Court and the Court of Appeals in all

criminal proceedings, thus:

Section 35. Powers and Functions. — The Office of the

Solicitor General shall represent the Government of the

Philippines, its agencies and instrumentalities and its

officials and agents in any litigation, proceeding,

investigation or matter requiring the services of lawyers.

When authorized by the President or head of the office

concerned, it shall also represent government owned or

controlled corporations. The Office of the Solicitor General

shall constitute the law office of the Government and, as

such, shall discharge duties requiring the services of

lawyers. It shall have the following specific powers and

functions:

(1) Represent the Government in the Supreme Court and

the Court of Appeals in all criminal proceedings ; represent the

Government and its officers in the Supreme Court, the Court of

Appeals, and all other courts or tribunals in all civil actions and special

proceedings in which the Government or any officer thereof in his

official capacity is a party. (Emphasis supplied)

The law clearly requires the Office of the Solicitor General to

represent the Government in the Supreme Court in all criminal

proceedings before this Court. As in every case of statutory

construction, we begin our analysis by looking at the plain and literal

language of the term “criminal proceeding.” Criminal proceeding is

defined as “a proceeding instituted to determine a person’s guilt or

innocence or to set a convicted person’s punishment.”[63] Proceeding is

defined as “any procedural means for seeking redress from a tribunal

or agency. It is the business conducted by a court or other official

body.”[64]

Section 1(a) of Rule 110 of the Rules of Court provides:

Section 1. Institution of criminal actions. — Criminal

actions shall be instituted as follows:

(a) For offenses where a preliminary investigation is required pursuant to

section 1 of Rule 112, by filing the complaint with the proper officer for the

purpose of conducting the requisite preliminary investigation.

It should be observed that a criminal action shall be instituted by

filing the complaint with the proper officer for the purpose of

conducting the preliminary investigation. In this case, the criminal

action was instituted when Alejandro Yanquiling, Jr., Chief of the

Homicide Section of the MPD filed the Complaint-Affidavit with the

Office of the City Prosecutor of Manila.[65] The Complaint-Affidavit was

supported by Pesico’s sworn statement, affidavit of consent from the

heirs of Delgado, crime report, progress report, SOCO report, and

cartographic sketch.[66]

Preliminary investigation, although an executive function, is part

of a criminal proceeding. In fact, no criminal proceeding under the

jurisdiction of the Regional Trial Court is brought to trial unless a

preliminary investigation is conducted. We explained, thus:

‘ [T]he right to have a preliminary investigation conducted

before being bound over for 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.’ A preliminary investigation should

therefore be scrupulously conducted so that the

constitutional right to liberty of a potential accused can be

protected from any material damage.[67]

In Ricafort v. Fernan,[68] this Court had the occasion to rule:

As stated by counsel for the respondents, the petition herein is

an offshoot, an incident of said criminal case for qualified theft. For all

purposes, therefore, it is a continuation of that case and partakes of

the nature of a criminal proceeding. This being so, the party defeated

by the order of the respondent Judge dismissing the information in

Criminal Case No. 2819 of the court of First Instance of Davao must be

the People of the Philippines and not the petitioner, the complaining

witness. Consequently, the proper party to bring this petition is the

State and the proper legal representation should be the Solicitor

General and not the attorney for the complaining witness who was the

private prosecutor in said Criminal Case No. 2819. It is true that under

the Rules of Court the offended party may take part in the prosecution

of criminal cases and even appeal in certain instances from the order

or judgment of the courts, but this is only so in cases where the party

injured has to protect his pecuniary interest in connection with the

civil liability of the accused. Petitioner did not institute the case at bar

for the purpose of protecting his pecuniary interest as supposed

offended party of the crime charged in the information that was

dismissed, but to cause the restoration of the case and to have it tried

as if nothing had happened. This, certainly, falls within the province of

the representative of the People who in this case has not appealed

nor joined the private prosecutor in bringing this case before Us.

Based on the above discussion, the term criminal proceeding

includes preliminary investigation. In any event, this issue is academic

because on 30 October 2007, the Informations against respondents

were filed with the trial court. Petitioners admit that the “People of

the Philippines” becomes a party in interest in a criminal proceeding

when an information is filed with the trial court.

We have ruled in a number of cases[69] that only the Solicitor

General may bring or defend actions in behalf of the Republic of the

Philippines, or represent the People or State in criminal proceedings

before the Supreme Court and the Court of Appeals. However,

jurisprudence lays down two exceptions where a private complainant

or offended party in a criminal case may file a petition directly with

this Court. The two exceptions are: (1) when there is denial of due

process of law to the prosecution and the State or its agents refuse to

act on the case to the prejudice of the State and the private offended

party,[70] and (2) when the private offended party questions the civil

aspect of a decision of a lower court.[71]

The first exception contemplates a situation where the State and

the offended party are deprived of due process because the

prosecution is remiss in its duty to protect the interest of the State

and the offended party. This Court recognizes the right of the

offended party to appeal an order of the trial court which denied him

and the State of due process of law.

In Merciales v. Court of Appeals,[72] this Court granted the petition

of the offended party and ruled as invalid the dismissal of the case in

the trial court for lack of a fundamental prerequisite, that is, due

process. The public prosecutor who handled the case deliberately

failed to present an available witness which led the trial court to

declare that the prosecution had rested its case. In this sense, the

public prosecutor was remiss in his duty to protect the interest of the

offended party. As a result, the public prosecutor was found guilty of

blatant error and abuse of discretion, causing prejudice to the

offended party. The trial court was likewise found guilty for serious

nonfeasance for passively watching the public prosecutor bungle the

case notwithstanding its knowledge that the evidence for the

prosecution was insufficient to convict and it could have, motu

proprio, called for additional witnesses. Thus, petitioner, who was the

mother of the private offended party in the criminal cases for rape

with homicide, had been deprived of her day in court. She could do

nothing during the proceedings, having entrusted the conduct of the

case in the hands of the public prosecutor. All she could do was

helplessly watch as the public prosecutor, who was under legal

obligation to pursue the action on the family’s behalf, renege on that

obligation and refuse to perform his sworn duty. This Court explained

that it is not only the State, but also the offended party, that is

entitled to due process in criminal cases. The issue on whether

private complainant can bring an action was, however, rendered moot

when the Solicitor General, in representation of the People, changed

his position and joined the cause of petitioner, thus fulfilling the

requirement that all criminal actions shall be prosecuted under the

direction and control of the public prosecutor.

Likewise, in People v. Nano,[73] this Court took cognizance of the

offended party’s petition because of the gravity of the error

committed by the judge against the prosecution resulting in denial

of due process. Aside from the denial of due process, the Solicitor

General also manifested to adopt the petition as if filed by his office.

Thus, we ruled in Nano:

The petition being defective in form, the Court could have

summarily dismissed the case for having been filed merely by private

counsel for the offended parties, though with the conformity of the

provincial prosecutor, and not by the Solicitor General. While it is the

public prosecutor who represents the People in criminal cases before

the trial courts, it is only the Solicitor General that is authorized to

bring or defend actions in behalf of the People or Republic of the

Philippines once the case is brought up before this Court or the Court

of Appeals (People v. Calo, 186 SCRA 620 [1990]; citing Republic v.

Partisala, 118 SCRA 320 [1982]; City Fiscal of Tacloban v. Espina, 166

SCRA 614 [1988]). Defective as it is, the Court, nevertheless,

took cognizance of the petition in view of the gravity of the

error allegedly committed by the respondent judge against

the prosecution – denial of due process – as well as the

manifestation and motion filed by the Office of the Solicitor

General praying that the instant petition be treated as if filed

by the said office. In view thereof, We now consider the People as

the sole petitioner in the case duly represented by the Solicitor

General. Payment of legal fees is therefore no longer necessary in

accordance with Sec. 16, Rule 141 of the Rules of Court. (Emphasis

supplied)

In the second exception, it is assumed that a decision on the

merits had already been rendered by the lower court and it is the civil

aspect of the case which the offended party is appealing. The

offended party, who is not satisfied with the outcome of the case, may

question the amount of the grant or denial of damages made by the

court below even without the participation of the Solicitor General.

In Mobilia Products, Inc. v. Umezawa,[74] we ruled that in criminal

cases, the State is the offended party. Private complainant’s interest

is limited to the civil liability arising therefrom. We explained:

Hence, if a criminal case is dismissed by the trial court

or if there is an acquittal, a reconsideration of the order of

dismissal or acquittal may be undertaken, whenever legally

feasible, insofar as the criminal aspect thereof is concerned

and may be made only by the public prosecutor; or in the

case of an appeal, by the State only, through the OSG. The

private complainant or offended party may not undertake

such motion for reconsideration or appeal on the criminal

aspect of the case. However, the offended party or private

complainant may file a motion for reconsideration of such

dismissal or acquittal or appeal therefrom but only insofar

as the civil aspect thereof is concerned.

In De la Rosa v. Court of Appeals,[75] citing People v. Santiago,[76]

we held:

In a special civil action for certiorari filed under Section

1, Rule 65 of the Rules of Court wherein it is alleged that the

trial court committed a grave abuse of discretion amounting

to lack of jurisdiction or on other jurisdictional grounds, the

rules state that the petition may be filed by the person

aggrieved. In such case, the aggrieved parties are the State

and the private offended party or complainant. The

complainant has an interest in the civil aspect of the case

so he may file such special civil action questioning the

decision or action of the respondent court on jurisdictional

grounds. In so doing, complainant should not bring the

action in the name of the People of the Philippines. The

action may be prosecuted in (the) name of said

complainant.

These two exceptions do not apply in this case.

In the Memorandum, petitioners allege that the Court of Appeals

committed reversible and whimsical errors of law in the Amended

Decision. Petitioners raised the following errors:

a. There were plain, speedy and adequate remedies

available to respondents prior to their filing of certiorari

before the Court of Appeals.[77]

b. The Secretary of Justice did not commit grave abuse of

discretion in her determination of probable cause.[78]

c. The Court of Appeals strayed from the determination of grave

abuse of discretion and instead evaluated the evidence de novo, and

erroneously increased the quantum of evidence required for

determining probable cause.[79]

d. The Court of Appeals erroneously substituted its judgment for

the Secretary of Justice.[80]

e. The Court of Appeals undermined the jurisdiction of

the RTC over the criminal proceedings by virtue of the filing

of the Information therein.[81]

Petitioners do not claim that the failure of the Solicitor General to

appeal the Court of Appeals’ decision before this Court resulted in the

denial of due process to the State and the petitioners. Petitioners do

not assert that the prosecution and the Solicitor General were remiss

in their duty to protect the interest of the State and the offended

party. Neither do petitioners claim that the Solicitor General is guilty

of blatant error or abuse of discretion in not appealing the Court of

Appeals’ decision.

The Solicitor General did not manifest to adopt petitioners’

appeal before this Court. On the contrary, the Solicitor General

manifested on 3 December 2008 its refusal to participate in the

oral arguments of this case held on 10 December 2008. This Court

cannot take cognizance of the petition because there is clearly no

denial of due process to the State and the petitioners. In short, the

first exception does not apply because petitioners do not claim, and

neither is there any showing in the records, that the State and the

petitioners have been denied due process in the prosecution of the

criminal cases.

The Solicitor General, on 19 September 2008, had filed before

this Court a Motion for Extension of Time to file a Petition for Review

under Rule 45, docketed as G.R. No. 184507. However, the 30-day

extension given had lapsed without the filing of the petition. [82]

Consequently, this Court, in a Resolution dated 8 December 2008,

declared G.R. No. 184507 closed and terminated.

Petitioners are also not appealing the civil aspect of the criminal

case since the lower courts had not yet decided the merits of the

case. In People v. Santiago,[83] this Court explained that in criminal

cases where the offended party is the State, the interest of the private

offended party is limited to the civil liability. If a criminal case is

dismissed by the trial court or if there is an acquittal, an appeal from

the criminal aspect may be undertaken only by the State through the

Solicitor General. Only the Solicitor General may represent the People

of the Philippines on appeal. The private complainant or offended

party may not appeal the criminal, but only the civil, aspect of the

case.

Here, since there was no decision promulgated on the merits by

the lower court and the Informations had been quashed, petitioners

have nothing to appeal on the civil aspect that is deemed impliedly

instituted with the criminal cases. There is no longer any criminal

case on which a civil case can be impliedly instituted. Petitioners’

recourse is to file an independent civil action on their own.

On 31 March 2009, the Solicitor General filed a Motion for Leave

to Admit Attached Comment in G.R. No. 184337.[84] The Solicitor

General reasoned that she opted not to file a petition for review in

G.R. No. 184507 because she learned that a similar petition was filed

before she could prepare the intended petition for review. In her

comment, the Solicitor General stated that she is not a direct party to

the case. However, the Solicitor General alleged that she would file a

comment as it is undeniable that she issued the Resolutions of the

Department of Justice at the time she held the position of Acting

Secretary of Justice concurrent with her being the Solicitor General.

The Solicitor General submitted that her position on the issue of

probable cause should be heard.

On 17 April 2009, respondents filed an Opposition and Motion to

Strike “Motion for Leave to Admit Attached Comment” and

“Comment.” Respondents contended that the Solicitor General is not

a party to the case and has no personality to participate in any

manner. Respondents claimed that the Solicitor General failed to file

a Petition for Review on Certiorari within the prescribed period and

she cannot now use a “Comment” as a substitute for a lapsed appeal.

In a Resolution dated 1 June 2009, this Court expunged from the

records the motion for leave to admit attached comment and the

aforesaid comment filed by the Solicitor General. The Court ruled that

the Solicitor General is not a party in G.R. No. 184337.

We reiterate that it is only the Solicitor General who may bring or

defend actions on behalf of the State in all criminal proceedings

before the appellate courts. Hence, the Solicitor General’s non-filing

of a petition within the reglementary period before this Court

rendered the assailed decision of the Court of Appeals final and

executory with respect to the criminal aspect of the case. The Solicitor

General cannot trifle with court proceedings by refusing to file a

petition for review only to subsequently, after the lapse of the

reglementary period and finality of the Amended Decision, file a

comment.

In view of our holding that petitioners have no standing to file the

present petition, we shall no longer discuss the other issues raised in

this petition.

WHEREFORE, we DENY the petition. We AFFIRM the 29 August

2008 Amended Decision of the Court of Appeals in CA-G.R. SP

No. 101196. No pronouncement as to costs.

SO ORDERED.

ANTONIO T. CARPIO

Associate Justice

WE CONCUR:

CONCHITA CARPIO MORALES

Associate Justice

PRESBITERO J. VELASCO, JR. TERESITA J. LEONARDO-

Associate Justice DE CASTRO

Associate Justice

LUCAS P. BERSAMIN

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been

reached in consultation before the case was assigned to the writer of

the opinion of the Court’s Division.

ANTONIO T. CARPIO

Associate Justice

Chairperson, First Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the

Division Chairperson’s Attestation, I certify that the conclusions in the

above Decision had been reached in consultation before the case was

assigned to the writer of the opinion of the Court’s Division.

REYNATO S. PUNO

Chief Justice