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CRIMINAL PROCEDURE: PRELIMINARY

INVESTIGATION CASES
TABLE OF CONTENTS
G.R. No. 168811 Marilyn Co vs Republic .................................................................................................................... 2
G.R. No. 158236 Ligaya Santos vs Domingo Orda Jr. ........................................................................................... 10
G.R. No. 149148 Mendoza-Arce vs Office of Ombudsman ................................................................................. 22
G.R. No. 131144 Advincula vs CA................................................................................................................................. 31
G.R. No. 127107 Dimatulac vs Villon .......................................................................................................................... 37
G.R. No. 72301 Ponsica vs Ignalaga ............................................................................................................................ 63
G.R. No. 164268 Torres Jr. vs Aguinaldo .................................................................................................................. 77
G.R. No. 106087 Go vs CA................................................................................................................................................ 87

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G.R. NO. 168811 MARILYN CO VS REPUBLIC

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 168811

November 28, 2007

MARILYN H. CO and WILSON C. CO, Petitioners,

vs.
REPUBLIC OF THE PHILIPPINES, HON. EUFRONIO K. MARISTELA, Presiding Judge, Regional
Trial Court, San Jose, Camarines Sur, Branch 30, and JOCELYN FRANCIA, Respondents.
DECISION
CARPIO, J.:
The Case
Before the Court is a petition for review1 assailing the 3 January 2005 Decision2 and 30 June 2005
Resolution3 of the Court of Appeals in CA-G.R. SP No. 82155.
The Antecedent Facts
On 15 May 2001, at around 5:00 p.m., Miguel Antonio Francia (Miguel) was shot dead in front of his
house in Caramoan, Camarines Sur by Sgt. Roberto Reyes4 (Sgt. Reyes), a member of the Philippine
Army. Jocelyn Francia (Jocelyn), Miguels widow, filed a complaint for Murder against Sgt. Reyes
and John Does. Mayor Marilyn H. Co (Mayor Co) and Wilson C. Co (petitioners)5 were included as
principals by induction. The motive for the killing was allegedly Miguels shift of loyalty to Mayor
Cos political opponent. Sgt. Reyes and the John Does in the complaint were allegedly Mayor Cos
bodyguards.
While Miguel was at the Caramoan Municipal Hospital, Sgt. Reyes, SPO2 Ramil Araas (SPO2
Araas), and a John Doe allegedly entered the Francias house against Jocelyns will. They searched
for papers and other effects, and caused chaos and disarray in the house. Accordingly, Jocelyn also
filed a complaint for Violation of Domicile against Sgt. Reyes, SPO2 Araas, and John Doe.
The accused alleged that Miguel was drunk and unruly, and indiscriminately fired his 9 mm pistol.
Sgt. Reyes, who was at the vicinity, accosted Miguel and fired a warning shot. However, Miguel
pointed his pistol at Sgt. Reyes. Sgt. Reyes was forced to shoot Miguel who was hit at his right thigh.
Sgt. Reyes and his companions brought Miguel to the Caramoan Municipal Hospital where he died
due to loss of blood.

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After the preliminary investigation, the Office of the Provincial Prosecutor of San Jose, Camarines
Sur issued a Joint Resolution6 dated 30 August 2001, as follows:
WHEREFORE, in the light of the foregoing consideration, let the case against SPO2 Ramil Araas,
Roberto Reyes, Mayor Marilyn Co, Wilson Co and other John Does for Murder be dismissed for lack
of probable cause and an information for Homicide be filed against Sgt. Gilbert Reyes, P.A.[,] with
the proper court[,] his allegations of self-defense being evidentiary in nature and another
information for Violation of Domicile against Sgt. Gilbert Reyes and another John Doe be filed with
the proper court, as the case against SPO2 Ramil Araas, for lack of probable cause[,] is hereby
dismissed.
SO RESOLVED.7
Jocelyn filed a petition for review before the Department of Justice (DOJ). In a
Resolution8 promulgated on 25 June 2002, the DOJ resolved:
WHEREFORE, the assailed resolution is hereby MODIFIED. The Office of the Provincial Prosecutor
of Camarines Sur is hereby directed to file the Information for murder against respondents SPO2
Ramil Araas, Sgt. Gilbert Reyes, Mayor Marilyn Co, Wilson Co and John Does, and another
information for violation of domicile against respondents SPO2 Ramil Araas, Sgt. Gilbert Reyes and
a certain John Doe. The Provincial Prosecutor is further directed to report to this Office the action
taken within ten (10) days from receipt thereof.
SO ORDERED.9
On 2 July 2002,10 Provincial Prosecutor Agapito Rosales filed a new Information for Murder against
the accused.
The accused filed a motion to suspend proceedings pending the motion for reconsideration of the
DOJs 25 June 2002 Resolution. Jocelyn, through a private prosecutor, filed a motion for issuance of
warrants of arrest against the accused. Jocelyn thereafter filed a motion for inhibition of Judge
Alfredo Cabral (Judge Cabral) for loss of trust and confidence due to the delay in the issuance of the
warrants of arrest. Judge Cabral granted Jocelyns motion and the cases were transferred to the sala
of Judge Eufronio K. Maristela of the Regional Trial Court of San Jose, Camarines Sur, Branch 30
(trial court).
In an Order11 dated 13 September 2002, the trial court denied the motion to suspend proceedings
as well as the motion for the issuance of warrants of arrest. Instead, the trial court set the cases for
preliminary investigation of Jocelyn and her witnesses to determine probable cause.
During the scheduled preliminary investigation on 23 September 2002, only Dr. Minerva BalmaceaAguirre of Caramoan Municipal Hospital appeared. Jocelyn and her witnesses did not appear for
fear for their lives. The private prosecutor moved for the suspension of the judicial determination of
probable cause as he was filing a petition for change of venue. In an Order dated 14 October 2002,
the trial court held in abeyance the presentation of additional evidence for judicial determination of
probable cause. However, this Court subsequently denied the private prosecutors motion for
change of venue.

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In an Order dated 19 May 2003,12 the trial court held that no probable cause exists against the
accused for the crime of Murder. The trial court dismissed the Information for Murder but upheld
the Information for Homicide against Sgt. Reyes. The trial court issued another warrant of arrest
against Sgt. Reyes.
The private prosecutor moved for reconsideration of the 19 May 2003 Order. On 13 August
2003,13 the trial court granted the motion and set the presentation of additional evidence for
judicial determination of probable cause on 29 August 2003. Meanwhile, on 12 August 2003,
Jocelyn executed an Affidavit of Retraction/Desistance absolving the accused, particularly
petitioners, from liability for Miguels death. On 28 August 2003, the private prosecutor filed an
Omnibus Motion to Admit Affidavit of Desistance of Private Complainant Jocelyn Francia and to
Dismiss the Case. On 29 August 2003, neither the government nor the private prosecutor appeared
at the scheduled hearing. None of the witnesses stated in the subpoena appeared.
In an Order dated 21 October 2003,14 the trial court dismissed the Information for Murder against
SPO2 Araas, Sgt. Reyes, John Does, and petitioners for lack of probable cause. The trial court again
sustained the Information for Homicide against Sgt. Reyes. The private prosecutor filed a motion for
reconsideration. In its Order dated 17 December 2003,15 the trial court denied the motion.
Jocelyn, joined by Miguels sons Antonio Francia II and Mark Anthony Francia (collectively, the heirs
of Miguel), filed a petition for certiorari before the Court of Appeals assailing the 21 October 2003
Order of the trial court. The heirs of Miguel alleged that the 21 October 2003 Order was issued
despite Jocelyns submission of an Affidavit withdrawing her Affidavit of Desistance and despite her
lack of affirmation in open court of the Affidavit of Desistance. The heirs of Miguel further alleged
that the trial court committed grave abuse of discretion in dismissing the Information for Murder
for lack of probable cause to sustain the charges against the accused.
The Ruling of the Court of Appeals
In its 3 January 2005 Decision, the Court of Appeals set aside the trial courts 21 October 2003 and
17 December 2003 Orders.
The dispositive portion of the 3 January 2005 Decision reads:
WHEREFORE, premises considered, the instant petition is impressed with merit. Perforce, the
questioned Orders dated October 21, 2003 and December 17, 2003 are hereby reversed and set
aside for being issued with grave abuse of discretion amounting to lack and/or in excess of
jurisdiction. The respondent court, therefore, is hereby ordered to enforce the Resolution of the
Secretary of Justice promulgated on 25 June 2002 (Annex I, pp. 153 to 161, Rollo) and in pursuance
thereto, to re-admit the information filed by Provincial Prosecutor Agapito B. Rosales dated July 4,
2002 (Annex "J", p. 162, Rollo).
SO ORDERED.16
The Court of Appeals distinguished between a preliminary investigation for the determination of
sufficient ground for the filing of information on one hand, and preliminary examination for the
determination of probable cause for the issuance of a warrant of arrest on the other. The Court of
Appeals ruled that in this case, the incident before the trial court was the determination of probable
cause for the issuance of warrants of arrest against the accused. The trial court was not tasked to
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determine whether there was a probable cause to prosecute the accused for the crime of Murder.
The determination of probable cause to prosecute the accused for Murder falls within the
jurisdiction of the prosecutor. This was already settled with the issuance of the 25 June 2002
Resolution by the Secretary of Justice and with the filing of an Information for Murder before the
trial court. The Court of Appeals ruled that the trial court went beyond its jurisdiction when it
assumed the duty and function of the prosecutor.
Petitioners filed a motion for reconsideration. In its 30 June 2005 Resolution, the Court of Appeals
denied the motion.
Hence, petitioners came to this Court, raising the following arguments:17
1. The Court of Appeals erred when it reversed the order of the trial court considering that
there was clearly no probable cause for the issuance of warrants of arrest against
petitioners.
2. The Court of Appeals committed a reversible error when it found that the trial court
arrogated unto itself the functions of the public prosecutor.
The Issue
The sole issue in this case is:
Whether the Court of Appeals committed a reversible error in reversing the trial courts 21 October
2003 Order which dismissed the Information for Murder against petitioners, SPO2 Araas, Sgt.
Reyes, and John Does for lack of probable cause.
The Ruling of this Court
The petition has no merit.
Preliminary Investigation Should be Distinguished from
Preliminary Examination
In this case, what was brought before the trial court was the preliminary examination. The trial
courts jurisdiction is limited to the determination of whether there is probable cause for the
issuance of warrants of arrest against the accused. Instead, the trial court assumed the function of
the prosecutor by determining whether there was probable cause for the filing of the information
for Murder.
In Salta v. Court of Appeals,18 the Court already ruled that Section 2 of the 1985 Rules on Criminal
Procedure no longer authorizes Regional Trial Court Judges to conduct preliminary investigations.
In Castillo v. Villaluz,19 the Court reiterated:
Judges of Regional Trial Courts (formerly Court of First Instance) no longer have authority to
conduct preliminary investigations. That authority, at one time reposed in them under Sections 13,
14 and 16, Rule 112 of the Rules of Court of 1964, was removed from them by the 1985 Rules on

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Criminal Procedure, effective on January 1, 1985, which deleted all provisions granting that power
to said Judges. x x x
The 1988 Amendments to the 1985 Rules on Criminal Procedure, declared effective on October 1,
1988, did not restore that authority to Judges of Regional Trial Courts; said amendments did not in
fact deal at all with the officers or courts having authority to conduct preliminary investigations.
This is not to say, however, that somewhere along the line RTC Judges also lost the power to make
a preliminary examination for the purpose of determining whether probable cause exists to justify the
issuance of a warrant of arrest (or search warrant). Such a power indeed, it is as much a duty as it
is a power has been and remains vested in every judge by the provision in the Bill of Rights in the
1935, the 1973 and the present (1987) Constitutions securing the people against unreasonable
searches and seizures, thereby placing it beyond the competence of mere Court rule or statute to
revoke. The distinction must, therefore, be made clear while an RTC Judge may no longer conduct
preliminary investigations to ascertain whether there is sufficient ground for the filing of a criminal
complaint or information, he retains the authority, when such a pleading is filed with his court, to
determine whether there is probable cause justifying the issuance of a warrant of arrest. x x x.20
The Court again reiterated this rule in People v. Inting21 where we further explained:
Judges and Prosecutors alike should distinguish the preliminary inquiry which determines
probable cause for the issuance of a warrant of arrest from the preliminary investigation proper
which ascertains whether the offender should be held for trial or released. Even if the two inquiries
are conducted in the course of 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
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 prosecutions 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 x22
Clearly, the trial court committed grave abuse of discretion in assuming the function of the
prosecutor.1wphi1 It should have limited itself to the determination of the existence of probable
cause for the purpose of issuing warrants of arrest against the accused. The Court of Appeals did
not err in reversing the trial courts Order which dismissed the information for Murder filed against
the accused.
Petitioners Arguments are Evidentiary in Nature
Petitioners further allege that the Court of Appeals erred in reversing the order of the trial court
because there is clearly no probable cause for the issuance of the warrants of arrest against them.
Petitioners allege that the admitted facts show that their co-accused who are law enforcers were
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performing their functions to maintain order and enforce the law. Petitioners further allege that the
physical evidence, consisting of the injuries suffered by Miguel, eliminates the element of treachery.
Petitioners allege that the location of the wound totally negates intent to kill. Petitioners also allege
that there is no evidence of abuse of superior strength. The fact that Miguel was taken to the
hospital only 15 minutes after he was shot was nobodys fault and should not be taken as an
attempt to hide intent to kill. Finally, petitioners allege that the only evidence linking them to the
crime is hearsay in character.
Again, the trial court went beyond the determination for the issuance of warrants of arrest. The trial
court made a judicial determination of probable cause for the filing of an information against the
accused. Petitioners arguments are matters of defense and are evidentiary in nature. They are best
left for the trial court to resolve after a full-blown trial on the merits.23
WHEREFORE, we DENY the petition. We AFFIRM the 3 January 2005 Decision and 30 June 2005
Resolution of the Court of Appeals in CA-G.R. SP No. 82155.
SO ORDERED.
ANTONIO T. CARPIO
Associate Justice
WE CONCUR:
ANGELINA SANDOVAL-GUTIERREZ*
Associate Justice
CONCHITA CARPIO MORALES
Associate Justice

DANTE O. TINGA
Associate Justice

PRESBITERO J. VELASCO, JR.

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 Courts Division.
ANTONIO T. CARPIO**
Associate Justice
Acting Chairperson
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairpersons 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 Courts Division.

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CONSUELO YNARES-SANTIAGO
Acting Chief Justice

Footnotes
As replacement of Justice Leonardo A. Quisumbing who is on official leave per
Administrative Circular No. 84-2007.
*

Acting Chairperson.

**

Under Rule 45 of the 1997 Rules of Civil Procedure.

Rollo, pp. 65-83. Penned by Associate Justice Bienvenido L. Reyes with Associate Justices
Eugenio S. Labitoria and Rosalinda Asuncion-Vicente, concurring.
2

Id. at 84-85.

Also referred to as Sgt. Gilbert Reyes.

Sgt. Reyes, SPO2 Araas, John Does, and petitioners are collectively referred to as the
accused in this Decision.
5

Rollo, pp. 111-130. Signed by 3rd Asst. Provincial Prosecutor and OIC Esperidion R. Solano,
with 2nd Asst. Provincial Prosecutor Eulogio I. Prima recommending approval. Provincial
Prosecutor Agapito B. Rosales approved and signed the Joint Resolution.
6

Id. at 130.

Id. at 180-187.

Id. at 187.

10

Id. at 189. 5 July 2002 in the RTC Order of 13 September 2002.

11

Id. at 189-193.

12

Id. at 200-202.

13

12 August 2003 in the CA Decision.

14

Rollo, pp. 194-198.

15

CA rollo, p. 36.

16

Rollo, pp. 82-83. Emphasis in the original.

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17 Id. at 28.
18

227 Phil. 213 (1986).

19

G.R. No. 34285, 8 March 1989, 171 SCRA 39.

20

Id. at 42-43. Emphasis in the original.

21

G.R. No. 88919, 25 July 1990, 187 SCRA 788.

22

Id. at 792-794. See also AAA v. Carbonell, G.R. No. 171465, 8 June 2007.

23

See Redulla v. Sandiganbayan, G.R. No. 167973, 28 February 2007, 517 SCRA 110.

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G.R. NO. 158236 LIGAYA SANTOS VS DOMINGO ORDA JR.

Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 158236

September 1, 2004

LIGAYA V. SANTOS, petitioner,

vs.
DOMINGO I. ORDA, JR., respondent.
DECISION
CALLEJO, SR., J.:
This is a petition for review on certiorari of the Decision1 of the Court of Appeals in CA-G.R. SP No. 72962
granting the petition for certiorari filed by Domingo I. Orda, Jr. and nullifying the Orders2 of the Regional
Trial Court of Paraaque City, Branch 258 dated July 5, 2002 and July 23, 2002 in People v. Ligaya V.
Santos, et al., for murder, docketed as Criminal Cases Nos. 01-0921 and 01-0425.
The Antecedents
On January 17, 2001, Dale B. Orda, a college student and son of respondent, Assistant City Prosecutor of
Manila Domingo Orda, Jr., was shot by a male person on a motorcycle at the corner of Ayala Boulevard
and San Marcelino Street, Manila. Dale was then seated at the passengers seat at the back of their car,
while his father was at the wheel. Fortunately, Dale survived the shooting.3
At about 6:20 p.m. on April 2, 2001, another son of the respondent, Francis Orda, a twenty-year-old
senior engineering student of the Mapua Institute of Technology, was shot to death at Saudi Arabia
Street corner Sierra Leone Street, Better Living Subdivision, Barangay Don Bosco, Paraaque City. Gina
Azarcon, a helper at the Bakers Brew Coffee Shop at the corner of Saudi Arabia and Somalia Streets,
Barangay Don Bosco, gave a sworn statement to the police investigators on April 1, 2001, declaring that
three male persons perpetrated the crime, two of whom shot the victim inside his car.4
On April 7, 2001, Azarcon gave a supplemental affidavit pointing to and identifying Rolly Tonion and
Jhunrey Soriano as two of the assailants.5 An Information was filed in the RTC of Paraaque City,
docketed as Criminal Case No. 01-0425 on April 18, 2001, charging Rolly Tonion alias "Komang" and
Jhunrey Soriano with murder for the killing of Francis Orda.6
The accused filed a petition for bail. The prosecution presented Gina Azarcon as its witness in opposition
to the petition.

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On June 7, 2001, Ernesto M. Regala and his son, Dennis C. Regala, a barangay tanod of Barangay 659,
Arroceros, Ermita, Manila, executed separate affidavits before the Assistant City Prosecutor of
Paraaque City. Ernesto narrated that at about 10:00 p.m. on April 1, 2001, he sent his son, Dennis, to
deliver collections from the public toilet at Arroceros to Barangay Chairman Ligaya Santos. When Dennis
had not yet arrived by 11:00 p.m., he decided to fetch his son. While they were in Santos office, Dennis
and Ernesto heard Santos saying, "Gusto ko malinis na trabaho at walang bulilyaso, baka makaligtas na
naman si Orda." They saw Santos give a gun to Rolly Tonion, who was then with Edna Cortez, a certain
Nognog, Ronnie Ybaez, and another male companion. Dennis then gave Ernestos collection amounting
to P400 to Santos. At 11:00 p.m. on April 2, 2001, Cortez told Ernesto that the son of the assistant city
prosecutor was ambushed at the Better Living Subdivision, and that the latter was fortunate because
the bullet intended for him hit his son instead.7 For his part, Dennis alleged that at 9:00 a.m. on April 3,
2001, Tonion asked him to return the gun to Santos for him, but that he refused to do so. On April 15,
2001, Santos asked him to monitor the activities of the respondent and his son at the store owned by
the latter, located at the LRT Station at Arroceros.
The respondent executed an affidavit-complaint dated June 7, 2001 and filed the same in the Office of
the City Prosecutor of Paraaque City, charging Santos, Cortez and Ybaez with murder for the death of
his son Francis.8The case was docketed as I.S. No. 01-F-2052.
In her counter-affidavit, Santos denied the charge and claimed that the affidavits executed by Ernesto
and Dennis were all lies. She averred that she was in their house in Cavite City on April 1, 2001 and
returned to Manila only in the early morning of April 2, 2001. Her alibi was corroborated by the
affidavits of Anthony Alejado, Marianito Fuentes, Normita Samonte, and Lilian Lemery. She also denied
Dennis claims that she asked him to monitor the activities of the respondent and his son on April 15,
2001. She alleged that the respondent filed the charge and other baseless charges against her to enable
him to gain control over Plaza Lawton where his store was located.
Cortez also denied the charge. She claimed in her affidavit that Santos was not in her office on April 1,
2001, it being a Sunday. She alleged that the affidavits of Dennis and Ernesto were lies.
On July 31, 2001, the investigating prosecutor issued a Resolution finding probable cause against Santos
and Cortez for murder.9 An Information for murder was, thereafter, filed on August 29, 2001 against
Santos and Cortez, docketed as Criminal Case No. 01-0921.10
On August 30, 2001, Azarcon executed an affidavit implicating Barangay Kagawad Christopher Castillo,
his brother Girlie Castillo, and Robert Bunda for the killing of Francis. On the same day, the respondent
executed an affidavit-complaint charging them for the same crime.11 On September 7, 2001, the trial
court issued an Order requiring the prosecutor to submit additional evidence against Cortez.12 Sabino M.
Frias, thereafter, executed an affidavit on September 18, 2001, implicating Santos, Cortez, the Castillo
brothers, Bunda, and Pedro Jimenez, the driver of Santos, in the killing of Francis.13
Meanwhile, Santos, Cortez, and Ybaez filed a petition for review of the resolution of the prosecutor in
I.S. No. 01-F-2052 in the Department of Justice (DOJ).14 On their motion, the trial court suspended the
proceedings against Santos and Cortez and the issuance of warrants for their arrest. However, on
September 12, 2001, Azarcon executed an affidavit recanting her statement against the Castillo brothers
and Bunda.15

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In the meantime, during the hearing on October 23, 2001, the prosecution terminated the presentation
of its testimonial evidence in Criminal Case No. 01-0425 on the accused Tonion and Sorianos petition
for bail and offered its documentary evidence. The accused presented Azarcon as their first witness to
prove their innocence of the crime charged.
On November 12, 2001, the public prosecutor issued a Resolution in I.S. No. 01-H-3410 finding probable
cause for murder against the Castillo brothers and Bunda. On November 28, 2001, the public prosecutor
filed a motion to amend information and to admit amended information against them as additional
accused.16 The accused, thereafter, filed a petition for review of the resolution of the public prosecutor
before the DOJ on January 7, 2002.17 They also filed a motion to suspend proceedings and the issuance
of warrants of arrest in Criminal Cases Nos. 01-0425 and 01-0921 and a motion to admit newly
discovered evidence, namely, Azarcons affidavit of recantation.18 The public prosecutor opposed the
motion and filed a motion to admit second amended information with Pedro Jimenez as additional
accused.19 On February 5, 2002, the trial court issued an Order denying the motion of the accused
Castillo brothers and Bunda and ordering the issuance of warrants for the arrest of Santos and
Cortez.20 The court then issued the said warrants based on its finding of probable cause against
them21 for lack of probable cause to recall the warrants of arrest, and to examine the witnesses. The
court, however, denied the motion on the ground that it had not yet acquired jurisdiction over their
persons and it had not yet received any resolution from the Secretary of Justice on their petition for
review. On February 20, 2002, the trial court issued an Order denying the petition for bail by Tonion and
Soriano,22 ruling that the evidence of guilt was strong. In the meantime, Ernesto and Dennis recanted
their affidavits.23
During the trial on April 23, 2002 in Criminal Case No. 01-0425, accused Tonion and Soriano presented
Dennis as their witness.24
On April 26, 2002, the trial court issued an Order admitting the second amended Information against the
Castillo brothers, Bunda, and Jimenez and ordering the issuance of warrants for their arrest.25 On April
29, 2002, the said warrants were issued by the court.
On June 11, 2002, Secretary of Justice Hernando B. Perez issued a Joint Resolution reversing the assailed
resolution of the public prosecutor and directing the latter to withdraw the Informations against Santos,
Cortez, Bunda, the Castillo brothers, and Jimenez. The Secretary of Justice found Azarcon, Frias, Dennis,
and Ernesto incredible witnesses because of their recantations, to wit:
WHEREFORE, the petition is GRANTED and the assailed resolutions are hereby REVERSED AND
SET ASIDE. The City Prosecutor of Paraaque City is hereby directed to cause the withdrawal of
the criminal Informations for murder filed before the Regional Trial Court, Branch 258,
Paraaque City, against respondents LIGAYA SANTOS, EDNA CORTEZ and RONNIE YBAEZ (I.S.
No. 01-F-2052) and against respondents CHRISTOPHER and GIRLIE CASTILLO and ROBERT
BUNDA (I.S. No. 01-H-3410) and to report to this Department the action taken within ten (10)
days from receipt hereof.
SO ORDERED.26
On June 27, 2002, the respondent filed a motion for reconsideration thereof. However, the public
prosecutor filed a motion to withdraw the Informations in the two cases on June 20, 2002 in compliance
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with the joint resolution of the Secretary of Justice. On July 2, 2002, the respondent filed a
comment/opposition to the motion to withdraw the Informations filed by the public prosecutor,
contending:
I- THAT COMPLAINANT HEREBY ADOPTS ITS POSITION RAISED IN ITS MOTION FOR
RECONSIDERATION FILED WITH THE DEPARTMENT OF JUSTICE (COPY ATTACHED AS ANNEX "A").
HENCE, THE DETERMINATION OF THE INSTANT MOTION IS STILL PREMATURE ESPECIALLY SO
THAT ALL THE ACCUSED-MOVANTS ARE STILL AT LARGE, EVADING SERVICE OF ARREST
WARRANT, IN WHICH CASE THEY ARE NOT ENTITLED TO ANY RELIEF;
II- THAT THE LATE (SIC) FINDINGS OF NO PROBABLE CAUSE FOR THE ACCUSED BY THE
DEPARTMENT OF JUSTICE IS NOT BINDING;
III- THAT THE HONORABLE COURT HAS JUDICIOUSLY AND SOUNDLY ADJUDGED THE EXISTENCE
OF PROBABLE CAUSE; and,
IV- THAT TO GIVE DUE COURSE TO THE INSTANT MOTION WOULD ONLY CREATE CHAOS AND
INJUSTICE.27
Pending resolution of the motion for reconsideration, the trial court issued an Order on July 5, 2002
granting the motion of the public prosecutor to withdraw the Informations in the interest of justice and
equity.28 The trial court ruled that such withdrawal would not prevent the refiling of the Informations
against the accused who would not be able to invoke double jeopardy, considering that the court had
not yet acquired jurisdiction over their persons. The private complainant filed a motion for
reconsideration of the order which was not opposed by the public prosecutor. Nonetheless, on July 23,
2002, the trial court issued an Order denying the motion on the ground that it could not order the
refiling of the Informations if the DOJ and the public prosecutor refused to do so.29
The respondent forthwith filed a petition for certiorari with the Court of Appeals (CA) assailing the
orders of the trial court.
On March 19, 2003, the CA rendered a Decision granting the petition. The appellate court ruled that the
trial court abused its discretion in granting the withdrawal of the Informations without making an
independent evaluation on the merits of the case. Santos filed a motion for reconsideration of the
decision and a supplement to the said motion, which was opposed by the respondent. On May 6, 2003,
Santos and Cortez were arrested based on the warrants issued by the trial court. On May 22, 2003, the
CA issued a resolution denying the said motion for reconsideration for lack of merit.
Santos filed a petition for review on certiorari with this Court contending as follows:
A.) THE COURT OF APPEALS ERRED GRAVELY AND ACTED ARBITRARILY IN NULLIFYING THE
ORDER OF THE TRIAL COURT GRANTING THE PROSECUTIONS MOTION TO WITHDRAW THE
INFORMATIONS IN CRIMINAL CASES NOS. 01-0921 AND 01-0425 PURSUANT TO DOJ JOINT
RESOLUTION DATED 11 JUNE 2002.
B.) THE COURT OF APPEALS COMMITTED GRAVE ERROR IN DIRECTLY REINSTATING THE
CRIMINAL COMPLAINTS, INCLUDING THE WARRANTS OF ARREST, WITHOUT AFFORDING THE
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TRIAL COURT THE OPPORTUNITY TO EXERCISE ITS JUDICIAL PREROGATIVE OF DETERMINING
WHETHER TO PURSUE OR DISMISS THE COMPLAINTS PURSUANT TO ITS OWN EVALUATION OF
THE CASE AND EVIDENCE IN LIGHT OF THE DOJ JOINT RESOLUTION FINDING LACK OF PROBABLE
CAUSE.30
The threshold issue is whether or not the trial court committed grave abuse of its discretion amounting
to excess or lack of jurisdiction in granting the public prosecutors motion to withdraw the Informations
and in lifting the warrant of arrest against the petitioner on the Secretary of Justices finding that there
was no probable cause for the filing of the said Informations.
The petitioner avers that the trial court did not abuse its judicial discretion when it granted the motion
of the public prosecutor to withdraw the two Informations as ordered by the Secretary of Justice in his
Joint Resolution on the finding that there was no probable cause against the accused therein to be
charged with murder. The petitioner asserts that, by allowing the withdrawal of the Informations
without an independent assessment of the merit of the evidence and without prejudice to the refiling
thereof, the court did not thereby order the dismissal of the cases for insufficiency of evidence. The
petitioner posits that, after all, the trial court had not yet acquired complete criminal jurisdiction to
resolve the cases because it had not yet acquired jurisdiction over the persons of all the accused. The
petitioner argues that the CA erred in relying on the rulings of this Court in Crespo v. Mogul31 and Perez
v. Hagonoy Rural Bank, Inc.32 because the said cases involve the withdrawal of the Informations and the
dismissal of the cases for insufficiency of evidence. In contrast, the public prosecutor filed a motion
merely to withdraw the Informations and not to dismiss the cases due to insufficiency of evidence.
In its comment on the petition, the Office of the Solicitor General (OSG) avers that the decision of the CA
is in conformity with the rulings of this Court in Balgos, Jr. v. Sandiganbayan,33 Dee v. Court of
Appeals,34 Roberts, Jr. v. Court of Appeals,35 Ledesma v. Court of Appeals,36 Jalandoni v. Drilon37 and
Solar Team Entertainment, Inc. v. How.38 The OSG asserts that the rulings of this Court apply whether
the motion filed by the public prosecutor was for the withdrawal of the Informations due to lack of
probable cause or insufficiency of evidence. The OSG avers that the trial court had acquired jurisdiction
over the persons of all the accused, either by their respective arrests or by the filing of pleadings before
the court praying for affirmative reliefs.
In her reply to the comment of the OSG, the petitioner insisted that she did not submit herself to the
jurisdiction of the trial court by filing her motion to quash the Informations for lack of probable cause
and to examine the witnesses before the issuance of the warrant of arrest against her. As the trial court
itself held, it had not yet acquired jurisdiction over her person.
In nullifying the assailed orders of the trial court, the appellate court ratiocinated as follows:
To support these assigned errors, petitioner contends that the respondent Judge committed
grave abuse of discretion when he granted the Motion to Withdraw Informations filed by his
trial prosecutor based on the Joint Resolution of the Department of Justice and in denying
petitioners motion for reconsideration.
We resolve to grant this petition considering that this contention is impressed with merit.

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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 which 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 (Crespo v.
Mogul, 151 SCRA 462).
However, if the trial court has failed to make an independent finding of the merits of the case or
make an independent evaluation or assessment of the merits of the case, but merely anchored
the dismissal of the case on the revised position of the prosecution, the trial court has
relinquished the discretion he was duty-bound to exercise because, in effect, it is the
prosecution through the Department of Justice which decides what to do and that the trial court
was reduced into a mere rubber stamp, in violation of the ruling in Crespo vs. Mogul (Martinez
vs. Court of Appeals, 237 SCRA 576, 577), which is the situation obtaining in this case
considering that the dismissal of the criminal cases against private respondents was based solely
on [the] recommendation of the Secretary of Justice because the reliance of public respondent
Judge was based solely on the prosecutors averment that the Secretary of Justice had
recommended the dismissal of the case against private respondent which is an abdication of the
trial courts duty and jurisdiction to determine a prima facie case, in blatant violation of the
courts pronouncement in Crespo vs. Mogul (Perez vs. Hagonoy Rural Bank, 327 SCRA 588).
Moreover, public respondent having already issued the warrants of arrest on private
respondents which, in effect, means that a probable cause exists in those criminal cases, it was
an error to dismiss those cases without making an independent evaluation especially that the
bases of the probable cause are the same evidence which mere made the bases of the Joint
Resolution dated June 11, 2002 of the Secretary of Justice.
Consequently, the dismissal order dated July 5, 2002 having been issued upon an erroneous
exercise of judicial discretion, the same must have to be set aside.39
We agree with the appellate court.
In Crespo v. Mogul,40 the Court held that once a criminal complaint or information is filed in court, any
disposition of the case or dismissal or acquittal or conviction of the accused rests within the exclusive
jurisdiction, competence, and discretion of the trial court. The trial court is the best and sole judge on
what to do with the case before it. A motion to dismiss the case filed by the public prosecutor should be
addressed to the court who has the option to grant or deny the same. Contrary to the contention of the
petitioner, the rule applies to a motion to withdraw the Information or to dismiss the case even before
or after arraignment of the accused.41 The only qualification is that the action of the court must not
impair the substantial rights of the accused or the right of the People or the private complainant to due
process of law.42 When the trial court grants a motion of the public prosecutor to dismiss the case, or to
quash the Information, or to withdraw the Information in compliance with the directive of the Secretary
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of Justice, or to deny the said motion, it does so not out of subservience to or defiance of the directive
of the Secretary of Justice but in sound exercise of its judicial prerogative.43
In resolving a motion to dismiss the case or to withdraw the Information filed by the public prosecutor
on his own initiative or pursuant to the directive of the Secretary of Justice, either for insufficiency of
evidence in the possession of the prosecutor or for lack of probable cause, the trial court should not rely
solely and merely on the findings of the public prosecutor or the Secretary of Justice that no crime was
committed or that the evidence in the possession of the public prosecutor is insufficient to support a
judgment of conviction of the accused. As the Court emphasized in Martinez v. Court of Appeals,44 the
trial court must make an independent evaluation or assessment of the merits of the case and the
evidence on record of the prosecution:
Secondly, the dismissal was based merely on the findings of the Acting Secretary of Justice that
no libel was committed. The trial judge did not make an independent evaluation or assessment
of the merits of the case. Reliance was placed solely on the conclusion of the prosecution that
"there is no sufficient evidence against the said accused to ascertain the allegation in the
information" and on the supposed lack of objection to the motion to dismiss, this last premise
being, however, questionable, the prosecution having failed, as observed, to give private
complainant a copy of the motion to dismiss.
In other words, the grant of the motion to dismiss was based upon considerations other than
the judges own personal individual conviction that there was no case against the accused.
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 judges own assessment of such evidence, it not being
sufficient for the valid and proper exercise of judicial discretion merely to accept the
prosecutions word for its supposed insufficiency.
As aptly observed by 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 v.
Mogul.
The dismissal order having been issued in violation of private complainants right to due process
as well as upon an erroneous exercise of judicial discretion, the Court of Appeals did not err in
setting aside said dismissal order and remanding the case to the trial court for arraignment of
petitioner as accused therein and for further proceedings.
Indeed, it bears stressing that the trial court is not bound to adopt the resolution of the
Secretary of Justice since it is mandated to independently evaluate or assess the merits of the
case and it may either agree or disagree with the recommendation of the Secretary of Justice.
Reliance alone on the resolution of the Secretary of Justice would be an abdication of the trial
courts duty and jurisdiction to determine a prima facie case.45
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The trial court may make an independent assessment of the merits of the case based on the affidavits
and counter-affidavits, documents, or evidence appended to the Information; the records of the public
prosecutor which the court may order the latter to produce before the court;46 or any evidence already
adduced before the court by the accused at the time the motion is filed by the public prosecutor.
In this case, the trial court failed to make an independent assessment of the merits of the cases and the
evidence on record or in the possession of the public prosecutor. In granting the motion of the public
prosecutor to withdraw the Informations, the trial court relied solely on the joint resolution of the
Secretary of Justice, as gleaned from its assailed order:
For resolution is the Motion to Withdraw Criminal Informations filed on June 21, 2002 by the Office of
the City Prosecutor, this jurisdiction, to which a Comment/Opposition thereto was filed by private
complainant Domingo I. Orda, Jr. on July 2, 2002.
It appears that the motion is in compliance with the Joint Resolution of the Department of Justice (DOJ)
promulgated on June 11, 2002 directing said Office to cause the withdrawal of the criminal informations
for murder against the accused, Ligaya V. Santos, Edna Cortez, and Ronnie Ybaez, in Crim. Case No. 010921 (I.S. No. 01-F-2052) and against Christopher Castillo, Girlie Castillo, and Robert Bunda in Crim. Case
No. 01-0425 (I.S. No. 01-H-3410), copy of which was received by this Court on June 19, 2002.
The Court, after going over the Comment/Opposition filed by the private complainant, vis--vis the Joint
Motion for Reconsideration of the Resolution of the DOJ, is of the firm belief and honest opinion and so
holds that meanwhile that the Motion for Reconsideration of the private complainant is pending before
the DOJ, justice and equity dictates that this Court has to give due course to the Motion to Withdraw the
Criminal Informations, specially so that warrants for the arrest of all the accused have been issued. No
injustice, prejudice, or damage will be suffered by the private complainant considering that if ever his
Motion for Reconsideration will be granted by the DOJ, said criminal informations may be refiled and
the principle of double jeopardy cannot be invoked by all the accused as the Court has not yet acquired
jurisdiction over the persons. Upon the other hand, the warrants of arrest will serve as swords of
damocles hanging over the heads of the accused if the Court will rule otherwise.47
In granting the public prosecutors motion, the trial court abdicated its judicial power and acted as a
mere surrogate of the Secretary of Justice.
Worse, as gleaned from the above order, the trial court knew that the Joint Resolution of the Secretary
of Justice had not yet become final and executory because the respondent, the private complainant, had
filed a timely motion for the reconsideration thereof which had not yet been resolved by the Secretary
of Justice. It behooved the trial court to wait for the resolution of the Secretary of Justice on the motion
for reconsideration of the respondent before resolving the motion of the public prosecutor to withdraw
the Informations. In fine, the trial court acted with inordinate haste.
Had the trial court bothered to review its records before issuing its assailed order, it would have recalled
that aside from the affidavits of Azarcon, Ernesto and Dennis, there was also the affidavit of Frias
implicating the petitioner and the other accused to the killing of Francis and that it even gave credence
to the testimony and affidavit of Azarcon when it denied Tonion and Sorianos petition for bail.
Moreover, the trial court found probable cause against the petitioner and issued a warrant for her arrest

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despite the pendency of her petition for review in the Department of Justice, only to make a complete
volte face because of the Joint Resolution of the Secretary of Justice.
The bare fact that the trial court had issued warrants of arrest against Santos, Cortez, the Castillo
brothers, and Bunda, who were the petitioners in the Department of Justice, did not warrant an outright
grant of the public prosecutors motion to withdraw the Informations. The court had already acquired
jurisdiction over the cases when the Informations were filed; hence, it had jurisdiction to resolve the
motion of the public prosecutor, one way or the other, on its merits. While it may be true that the
accused could be incarcerated, as warrants of arrest had already been issued against them pending the
resolution of the respondents motion for reconsideration, the same does not justify ignoring the rules
and running roughshod over the rights of the respondent. Justice and equity is not for the accused
alone; the State and the private complainant are entitled thereto, as well. Moreover, the petitioner had
submitted herself to the jurisdiction of the court when she filed her motion to examine the witnesses,
and suspend the proceedings and the issuance of a warrant for her arrest.
The trial court committed another travesty when it denied the motion for reconsideration of its July 5,
2002 Order, on its ratiocination that
In todays hearing on the Motion for Reconsideration, considering that the Public Prosecutor
informed the Court that their office will no longer file any opposition thereto, the said Motion
for Reconsideration is denied considering that the filing and the withdrawal of an Information is
purely an executive function and the Court cannot order the refiling if the Department of Justice
or the Public Prosecutors Office refuses to do so. 48
This is so because the July 5, 2002 Order of the court had not yet become final and executory when the
private complainant filed her motion for reconsideration of the said order.49 Until and unless the July 5,
2002 Order shall have become final and executory, the Informations filed with the court were not yet
considered withdrawn. On the other hand, if the trial court had granted the motion for reconsideration
of the respondent and set aside its July 5, 2002 Order, there would no longer be a need to refile the
Informations.
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED DUE COURSE. The assailed Decision of the
Court of Appeals is AFFIRMED.
SO ORDERED.
Puno*, Austria-Martinez**, Tinga, and Chico-Nazario, JJ., concur.
Footnotes
*

On official leave.

**

Acting Chairman.

Penned by Associate Justice Mercedes Gozo-Dadole, with Associate Justices Bennie A. AdefuinDela Cruz and Mariano C. Del Castillo, concurring.

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2
Penned by Judge Raul E. De Leon.
3

Rollo, p. 263.

Id. at 11.

Id. at 134.

Id. at 136.

Id. at 140-142.

Id. at 139.

Id. at 174-176.

10

Id. at 177.

11

Id. at 179.

12

Id. at 502.

13

Id. at 195-197.

14

Id. at 182-190.

15

Id. at 193-194.

16

Id. at 229.

17

Id. at 233-245.

18

Id. at 246-248.

19

Id. at 249.

20

Id. at 251-252.

21

Id. at 253.

22

Id. at 254-262.

23

Id. at 267-270.

24

Id. at 271-306.

25

Id. at 307.
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26
Id. at 321.
27

Id. at 340-341.

28

Id. at 68-69.

29

Id. at 70.

30

Id. at 26.

31

151 SCRA 462 (1987).

32

327 SCRA 588 (2000).

33

176 SCRA 287 (1989).

34

238 SCRA 254 (1994).

35

254 SCRA 307 (1996).

36

278 SCRA 656 (1997).

37

327 SCRA 107 (2000).

38

338 SCRA 511 (2000).

39

Rollo, pp. 62-63.

40

Supra, note 31.

41

Odin Security Agency, Inc. v. Sandiganbayan, 365 SCRA 351 (2001).

42

Martinez v. Court of Appeals, 237 SCRA 575 (1994).

43

Roberts, Jr. v. Court of Appeals, supra.

44

Supra, note 42.

45

Solar Team Entertainment, Inc. v. How, supra.

46

Section 8, Rule 112 of the Revised Rules of Criminal Procedure.

47

Rollo, pp. 68-69.

48

Id. at 70.

49

Section 13 of DOJ Circular No. 70 provides:

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SECTION 13. Motion for reconsideration. The aggrieved party may file a motion for
reconsideration within a non-extendible period of ten (10) days from receipt of the
resolution on appeal, furnishing the adverse party and the Prosecution Office concerned
with copies thereof and submitting proof of such service. No second or further motion
for reconsideration shall be entertained.

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G.R. NO. 149148 MENDOZA-ARCE VS OFFICE OF OMBUDSMAN

SECOND DIVISION

[G.R. No. 149148. April 5, 2002]

SUSAN MENDOZA-ARCE, petitioner, vs. HONORABLE OFFICE OF THE OMBUDSMAN (VISAYAS),

PRIMO C. MIRO, DEPUTY OMBUDSMAN, REGIONAL TRIAL COURT ROXAS CITY,
EXECUTIVE JUDGE, HONORABLE SALVADOR GUBATON, OFFICE OF THE CITY FISCAL,
HONORABLE JULIUS ABELA, SANTIAGO B. VILLARUZ, respondents.
DECISION
MENDOZA, J.:
This is a petition for certiorari to annul the resolution, dated April 20, 2001, of the Office of the
Ombudsman (Visayas), finding a prima facie case for violation of 3(e) of R.A. No. 3019 (Anti-Graft
and Corrupt Practices Act) and Art. 171 of the Revised Penal Code against petitioner Susan
Mendoza-Arce, and the order, dated June 29, 2001, denying her motion for reconsideration.
The facts are as follows:
Respondent Santiago B. Villaruz is one of the oppositors in Special Proceeding Case No. V-6433,
entitled In the Matter of the Petition to Approve the Will of Remedios Bermejo-Villaruz,
deceased, v.Nicolas P. Villaruz.[1] The case, originally assigned to the Regional Trial Court (RTC),
Branch 15, Roxas City, of which Judge Roger B. Patricio was presiding judge, was later re-assigned
to Branch 19 of the same court, presided over by Judge (now Justice of the Court of Appeals) Sergio
Pestao.[2]
Respondent Santiago B. Villaruz was originally the administrator of the estate of his mother
Remedios Bermejo Villaruz. However, in an order issued by the trial court on June 10, 1998, he was
removed as such for patent neglect of his legal duties and failure to comply with the court orders. In
his place, respondents eldest brother, Nicolas B. Villaruz, Jr., was appointed regular administrator,
upon filing and approval by this Court of an Administrators Bond in the amount of fifty thousand
pesos (P50,000.00).[3]
In a motion, dated July 1, 1998, Nicolas filed a motion for the approval of his bond, furnished by
the Philippine Surety & Insurance, Inc., in the amount of P50,000.00. Santiago and his brother Jose
Ma. Villaruz opposed Nicolas motion and prayed that Jose Maria be instead appointed regular
administrator.[4] Attached to their opposition was a certification, dated August 31, 1988, executed
by their mother Remedios before she passed away, authorizing Santiago to take possession of
and/or to manage her nipa lands, which were then in his care, for a period of 20 years or during her
lifetime, whichever was longer. Remedios Bermejo-Villaruz also gave Santiago the option of leasing
the properties for P120,000.00 a year plus land taxes.[5] The oppositors likewise submitted an
agreement, dated February 6, 1993, executed by the three children of Remedios Bermejo-Villaruz,
in which they agreed to honor the lease until August 23, 2008.[6]

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In an order, dated September 22, 1998, Judge Patricio denied the oppositors opposition, while
recognizing the validity of the certification executed by Remedios Bermejo-Villaruz and the
agreement of the heirs, and stated that the administration of the new administrator was subject to
them. No mention of the agreement was, however, made in the dispositive portion of the order,
which simply read:
WHEREFORE, premises considered, for lack of merit, oppositors Opposition and Motion dated July
15, 1998 is denied, while action on petitioners Motion to Approve Administrators Bond dated July
1, 1998 is held in abeyance until after petitioner submits to this Court, within ten (10) days from
receipt of this order, an updated certification from the Supreme Court to the effect that the
Philippine Phoenix Surety & Insurance, Inc. has no pending obligation and/ or liability to the
government insofar as confiscated bonds in civil and criminal cases are concerned.[7]
On October 12, 1998, Judge Sergio Pestao, to whom the case was in the meantime reassigned,
approved the administrators bond of respondent Nicolas B. Villaruz, Jr. in an order which stated:
It appearing from the Certification issued by the Supreme Court that Philippine Phoenix Surety and
Insurance, Inc. has no pending obligation and/ or liabilities to the government insofar as
confiscated bonds in civil and criminal cases are concerned, the Administrators bond filed by
petitioner Nicolas B. Villaruz, is approved.
Send copy of this Order to petitioner through his counsel, to the Clerk of Court of this court, and to
the oppositors through their counsel.[8]
After receiving a copy of Judge Pestaos order, respondent Susan Mendoza-Arce, Clerk of Court
VI of the Regional Trial Court of Roxas City, prepared a Letter of Administration (LOA) which read:
KNOW ALL MEN BY THESE PRESENTS:
That by order of this Court dated October 12, 1998, issued by Honorable Sergio Pestao, Judge of the
Regional Trial Court, Branch 19, Roxas City, Nicolas B. Villaruz, Jr. has been appointed
Administrator of the estate of Remedios Bermejo-Villaruz, deceased, with full authority to take
possession of all property/ies of said deceased in any province or provinces in which it may be
situated and to perform all other acts necessary for the preservation of said property, he having
filed a bond satisfactory to the Court. Said Administrator shall within three months from the date of
this appointment return to the Court a true inventory and appraisal of the real and personal estate
of the deceased which have come into his possession or knowledge and shall render a true and just
account of his administration to the Court within one year and at any other time when required by
the Court.
IN WITNESS WHEREOF, I sign and seal these presents in Roxas City, Philippines, this 16th day of
October 1998.
(sgd.) Susan Mendoza-Arce
(t)SUSAN MENDOZA-ARCE
The LOA was based on the form prescribed in the Manual for Clerks of Court.[9] Accordingly, on
December 7, 1998, administrator Nicolas B. Villaruz, Jr., accompanied by three armed security
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guards and respondents Deputy Sheriff Charles Aguiling, took possession of the entire estate of the
decedent, including the nipa lands which had been leased to respondent Santiago B. Villaruz.[10]
This gave rise to the present action. In a letter-complaint to the Ombudsman, dated March 25,
1999, respondent Santiago B. Villaruz alleged that petitioner committed two crimes in issuing the
LOA, to wit:
1. Falsification by a public officer under Article 171, par. 3 of the Revised Penal Code, by
attributing to persons who have participated in an act or proceeding statements other than those in
fact made by them.
2. Corrupt practice in violation of 3(e) of the Anti-Graft and Corrupt Practices Act (R.A. No.
3019) by causing any undue injury to any party, including the Government, or giving any private
party any unwarranted benefit, advantage or preference in the discharge of his official
administrative or judicial functions through manifest partiality, evident bad faith or gross
inexcusable negligence.[11]
Attached to his letter-complaint to the Ombudsman were affidavits executed by respondent
Santiago B. Villaruz and his employees, namely, Teresita B. Bechayda, Ramon Benliro, Jr., Garry B.
Bonales, Romeo S. Bolante, and Sulpico B. Blanco.[12] In his affidavit, respondent accused petitioner
of acting with manifest partiality, evident bad faith and gross inexcusable negligence by falsely
attributing to Judge Pestao the appointment of Nicolas B. Villaruz as new administrator and
investing him with full authority to take possession of all property/ies of the decedent, because the
fact was that it was Judge Patricio who had appointed Nicolas administrator of the estate subject to
the terms and conditions of the lease agreement in favor of respondent Santiago B. Villaruz.
Respondent claimed that he had been deprived of income in the amount of P33,000.00 every week,
as well as of the bancas and boats used in his business, as a result of the issuance of the order in
question.[13]
In her report, dated May 13, 1999, Graft Investigation Officer Estrela Alma A. Singco stated that
the allegations in the complaint warrant further investigation and recommended that petitioner be
ordered to file her counter-affidavit.[14]
In her counter-affidavit, dated June 23, 1999, petitioner admitted issuing the LOA in favor of
Nicolas B. Villaruz, Jr. She claimed, however, that she acted in compliance with the order of
Presiding Judge Sergio Pestao and that, in preparing the LOA, she merely adopted the legal form
prescribed in the Manual for Clerks of Court, which had been approved by this Court. She said she
issued the LOA in line [with] my official functions which [are] ministerial in nature and devoid of
any bad faith and with manifest partiality.[15]
In a reply-affidavit, dated June 29, 1999, respondent Santiago B. Villaruz reiterated the
arguments raised in his letter-complaint and asserted that legal forms are mere guidelines in the
preparation of legal documents and that respondent usurped the functions of the branch clerk of
court when she issued the LOA.[16]
In a resolution, dated April 20, 2001, Ricardo A. Rebollido, Graft Investigation Officer II, found
probable cause against petitioner. Based on the affidavits and counter-affidavits submitted by the
parties, he found petitioner guilty of the charge by making it appear that it was Judge Pestao,
instead of Judge Patricio, who had appointed Nicolas B. Villaruz as administrator, without regard to
the lease agreement in favor of respondent Santiago B. Villaruz. The Graft Investigation Officer
found that although petitioners duties were ministerial, she should have read the order recognizing
the lease. The resolution concluded,

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All things considered, respondent [now petitioner Susan Mendoza-Arce] in the discharge of her
official administrative or judicial functions, through manifest partiality, evident bad faith, or gross
inexcusable negligence caused undue injury to complainant and gave unwarranted benefit,
advantage or preference to Administrator Nicolas B. Villaruz, Jr. who has been the one reaping the
fruits and products of the said 120 hectares of nipa lands the fruits and products of which lawfully
and rightfully belong to complainant as lessee.
WHEREFORE, premises considered, this Office finds a prima facie case against respondent ATTY.
SUSAN MENDOZA-ARCE for violation of Section 3(e) of Republic Act 3019 otherwise known as
the Anti-Graft & Corrupt Practices Act, and for the crime of Falsification of Official Document
under paragraph 3, Article 171 of the Revised Penal Code. Let the corresponding Informations
be filed before the proper court.[17]
Petitioner moved for a reconsideration, maintaining that her official duties as a clerk of court
were ministerial in nature and that she merely tried to comply with the dispositive portion of
orders and decisions of the trial court. She pointed out that neither the order, dated June 10, 1998,
nor the order, dated September 22, 1998, issued by Judge Patricio mentioned the lease of nipa lands
and that it was only in the text of the order, dated September 22, 1998, that said lease was referred
to. In discharging her official duties, she argued, she could not be guilty of manifest partiality,
evident bad faith, or gross inexcusable negligence, as asserted by complainant.[18]
In an order, dated June 29, 2001, the Graft Investigation Officer found no new matters or issues
raised therein which would justify the reversal or modification of our earlier findings, and held that
in any event the grounds relied by respondent are evidentiary matters which could well be
ventilated before the court of justice. Hence, this petition.
We first dispose of a procedural issue raised by respondent Santiago B. Villaruz. In his
Comment, dated October 12, 2001, respondent invokes Rule 65, 4 of the 1997 Rules of Civil
Procedure and contends that the petition for certiorari in this case should have been filed in the
Court of Appeals. This provision states in pertinent parts:
SEC. 4. When and where petition filed.- The petition shall be filed not later than sixty (60) days from
notice of the judgment, order or resolution. In case a motion for reconsideration or new trial is
timely filed, whether such motion is required or not, the sixty (60) day period shall be counted from
notice of the denial of said motion.
The petition shall be filed in the Supreme Court or, if it relates to the acts or omissions of a lower
court or of a corporation, board, officer or person, in the Regional Trial Court exercising jurisdiction
over the territorial area as defined by the Supreme Court. It may also be filed in the Court of
Appeals whether or not the same is in aid of its appellate jurisdiction. If it involves the acts or
omissions of a quasi-judicial agency, unless otherwise provided by law or these rules, the petition
shall be filed in and cognizable only by the Court of Appeals.
No extension of time to file the petition shall be granted except for compelling reason and in no case
exceeding fifteen (15) days.
The contention has no merit. In Tirol, Jr. v. del Rosario,[19] we held that although as a
consequence of the decision in Fabian v. Desierto[20] appeals from the orders, directives, or decisions
of the Ombudsman in administrative cases are now cognizable by the Court of Appeals,
nevertheless in cases in which it is alleged that the Ombudsman has acted with grave abuse of
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discretion amounting to lack or excess of jurisdiction, a special civil action of certiorari under Rule
65 may be filed in this Court to set aside the Ombudsmans order or resolution. In Kuizon v.
Desierto,[21] we again held that this Court has jurisdiction over petitions for certiorari questioning
resolutions or orders of the Office of the Ombudsman in criminal cases.
Coming now to the merits, we find the petition meritorious.
To begin with, in Posadas v. Ombudsman,[22] we held: The rule, of course, is that a criminal
prosecution cannot be enjoined. But as has been held, infinitely more important than conventional
adherence to general rules of criminal procedure is respect for the citizens right to be free not only
from arbitrary arrest and punishment but also from unwarranted and vexatious prosecution. In
that case, the Ombudsman ordered the prosecution of certain officials of the University of the
Philippines in Diliman, Quezon City for preventing the National Bureau of Investigation from
arresting without warrants student-suspects in the killing of a fraternity member. The question was
whether there was probable cause for violation of P.D. No. 1829, which makes it unlawful for
anyone to obstruct the apprehension and prosecution of criminal offenders. The Court found none
and enjoined the Ombudsman and his agents from prosecuting the U.P. officials. The attempted
arrest was declared illegal and petitioners to be simply protecting the rights of the students.
Indeed, while this Courts policy is one of non-interference in the conduct of preliminary
investigations, leaving the investigating officers with a latitude of discretion in the determination of
probable cause,[23] nonetheless exceptions to the general rule have been recognized, to wit:
1. When necessary to afford adequate protection to the constitutional rights of the
accused;
2. When necessary for the orderly administration of justice or to avoid oppression or
multiplicity of actions;
3. When there is a prejudicial question which is sub judice;
4. When the acts of the officer are without or in excess of authority;
5. Where the prosecution is under an invalid law, ordinance or regulation;
6. When double jeopardy is clearly apparent;
7. Where the court has no jurisdiction over the offense;
8. Where it is a case of persecution rather than prosecution;
9. Where the charges are manifestly false and motivated by the lust for vengeance;
10. When there is clearly no prima facie case against the accused and a motion to quash on
that ground has been denied.[24]
In this case, we hold that the Office of the Ombudsman (Visayas) acted without or in excess of
its authority when it ordered the filing of informations against petitioner for violation of R.A. No.
3019, 3(e) and the Revised Penal Code, Art. 171, par. 3, despite the absence of probable cause,
defined as such ground as engenders a well-founded belief that a crime has been committed and the
respondent is probably guilty thereof, warranting the filing of the case in court.[25]
First. Petitioner Arce allegedly violated 3 (e) of Republic Act No. 3019 by including the phrase
with full authority to take possession of all property/ies of said deceased in any province or
provinces in which it may be situated . . . in the LOA she prepared in Special Proceeding Case No. V6433. This provision states:
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SEC. 3. Corrupt Practices of Public Officers. In addition to acts or omissions of public officers already
penalized by existing law, the following shall constitute corrupt practices of any public officer and
are hereby declared to be unlawful: ....
(e) Causing any undue injury to any party, including the Government, or giving any private party
any unwarranted benefits, advantage or preference in the discharge of his official, administrative or
judicial functions through manifest partiality, evident bad faith or gross inexcusable
negligence. This provision shall apply to officers and employees of offices or government
corporations charged with the grant of licenses or permits or other concessions.
The elements of the offense are:
1. That the accused are public officers or private persons charged in conspiracy with them;
2. That said public officers committed the prohibited acts during the performance of their
official duties or in relation to their public positions;
3. That they caused undue injury to any party, whether the Government or a private party;
4. That such injury is caused by giving unwarranted benefits, advantage or preference to such
parties; and
5. That the public officers have acted with manifest partiality, evident bad faith or gross
inexcusable negligence.[26]
These elements must all be proven.[27] In this case, there is no basis for the finding that in
issuing the LOA in question petitioner acted with partiality, or bias which excites a disposition to
see and report matters as they are wished for rather than as they are, with bad faith, which
connotes not only bad judgment or negligence but also a dishonest purpose or conscious
wrongdoing, a breach of duty amounting tofraud, nor with gross negligence, which is negligence
characterized by the want of even slight care, acting or omitting to act in a situation where there is a
duty to act, not inadvertently but willfully and intentionally, with a conscious indifference to
consequences as far as other persons are concerned.[28]
The Manual for Clerks of Court describes the clerk of court as an officer of the Court, a public
officer, and an officer of the law, [although] the position is not that of a judicial officer, nor is it
synonymous with the Court. . . . The office is essentially a ministerial one.[29] Petitioner performed a
ministerial duty in preparing the letter of administration based on the dispositive portions of the
orders dated September 22, 1998 and October 12, 1998. She merely copied substantially the form
for letters of administration prescribed in the Manual for Clerks of Courts. The LOA may not be
accurate for lack of reference to the lease agreement in favor of respondent Santiago B. Villaruz, but
it cannot be said with certainty that she acted either with gross negligence or from some corrupt
motive. The fact is that, instead of employing her own words, she used phrases in the Manual
prescribed by this Court.
Second. The Office of the Ombudsman (Visayas) found a prima facie case for falsification under
Article 171, par. 3 of the Revised Penal Code against petitioner because she stated in the letter of
administration that Nicolas B. Villaruz, Jr. had been appointed administrator by Judge Sergio Pestao
when what the latter did was to approve the administrators bond.
We disagree with the Ombudsmans findings. Art. 171, par. 3 of the Revised Penal Code
provides:

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Falsification by public officer, employee, or notary or ecclesiastical minister. The penalty of prision
mayor and a fine not to exceed 5,000 pesos shall be imposed upon any public officer, employee, or
notary who, taking advantage of his official position, shall falsify a document by committing any of
the following acts:
....
3. Attributing to persons who have participated in an act or proceeding statements other than those
in fact made by them.
Criminal intent must be shown in felonies committed by means of dolo, such as
falsification.[30] In this case, there is no reasonable ground to believe that the requisite criminal
intent or mens rea was present. Petitioner prepared the letter of administration on the basis of the
order of Judge Pestao, dated October 12, 1998, approving the administrators bond filed by Nicolas
B. Villaruz, Jr. By the approval of his bond, Nicolas B. Villaruz, Jr. qualified as administrator so that
in a sense, therefore, the statement in the letter of administration [t]hat by order of this Court dated
October 12, 1998, issued by Honorable Sergio Pestao, Judge of the Regional Trial Court, Branch 19,
Roxas City, Nicolas B. Villaruz, Jr. has been appointed Administrator of the estate of Remedios
Bermejo-Villaruz, deceased is correct. There was nothing willful or felonious in petitioners act
warranting her prosecution for falsification.
WHEREFORE, the petition is GRANTED and the resolution dated April 20, 2001, of the Graft
Investigation Officer, as approved by the Office of the Ombudsman, and his order, dated June 29,
2001, are hereby SET ASIDE and the complaint of respondent Santiago B. Villaruz against petitioner
Susan Mendoza-Arce for violation of R.A. No. 3019, 3(e) and for falsification committed by a public
officer under Art. 171 of the Revised Penal Code is DISMISSED.
SO ORDERED.
Bellosillo, (Chairman), and De Leon, Jr., JJ., concur.
Quisumbing, J., no part. Close relations to counsel of a party.

[1]

Order dated September 22, 2002; Rollo, pp. 38-40.

[2]

Orders dated June 10, 1998, September 22, 1998, and October 12, 1998; id., pp. 35-41.

[3]

Order dated June 10, 1998; id., pp. 35-37.

[4]

Order dated September 22, 1998; id., pp. 38-40.

[5]

Certification of Remedios B. Villaruz dated August 23, 1988; Records, p. 17.

Agreement of Nicolas B. Villaruz, Jr., Jose Ma. B. Villaruz, and Santiago B. Villaruz dated February
6, 1993; Records, p. 18.
[6]

[7]

Rollo, pp. 38-40.

[8]

Id., p. 41.

Rollo, p. 42; The Manual for Clerks of Court, p. 612 (1991) prescribed the form for Letters of
Administration as follows:
[9]

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Know All Men By These Presents:
That by order of this Court dated _______, 19__, issued by Hon. _____ _____, Judge of the _____ Court,
Branch _____ _____ has been appointed Administrator of the estate of _____, deceased, with full
authority to take possession of all property of said deceased in any province or provinces in which
it may be situated and to perform all other acts necessary for the preservation of said property, he/
she having filed a bond satisfactory to the Court. Said Administrator shall within three months from
the date of this appointment return to the Court a true inventory and appraisal of the real and
personal estate of the deceased which have come into his possession or knowledge, and shall
render a true and just account of his administration to the Court within one year and at any other
time when required by the Court.
IN WITNESS WHEREOF, I sign and seal these presents in _____, Philippines, this _____ day of _____,
19__.
[10]

Affidavit of Santiago B. Villaruz dated March 25, 1999; Records, pp. 3-8.

[11]

Letter-complaint dated March 25, 1999; Rollo, pp. 16-17.

[12]

Records, pp. 23-27.

[13]

Affidavit of Santiago B. Villaruz dated March 25, 1999; Records, pp. 3-8.

[14]

Records, pp. 46-47.

[15]

Id., pp. 50-51.

[16]

Id., pp. 59-66.

[17]

Rollo, pp. 21-28 (emphasis in the original).

[18]

Id., pp. 29-33.

[19]

317 SCRA 779 (1999).

[20]

295 SCRA 470 (1998).

[21]

G.R. Nos. 140619-24, March 9, 2001.

[22]

341 SCRA 388 (2000).

Sebastian, Sr. v. Garchitorena, 343 SCRA 463 (2000); Camanag v. Guerrero, 268 SCRA 473
(1997); Fernando v. Sandiganbayan, 212 SCRA 680 (1992).
[23]

Posadas v. Ombudsman, 341 SCRA 388 (2000); Venus v. Desierto, 298 SCRA 196 (1998);
Brocka v. Enrile, 192 SCRA 183 (1990).
[24]

[25]

Rules of Court, Rule 112, 1.

Bunye v. Sandiganbayan, 306 SCRA 663 (1999); Ingco v. Sandiganbayan, 272 SCRA 563 (1997);
Ponce de Leon v. Sandiganbayan, 186 SCRA 745 (1990).
[26]

Avila, Sr. v. Sandiganbayan, 307 SCRA 236 (1999); Fernando v. Sandiganbayan, 212 SCRA 680
(1992).
[27]

[28]

Fonacier v. Sandiganbayan 238 SCRA 656 (1994); Alejandro v. People, 170 SCRA 400 (1992).

[29]

Manual for Clerks of Court (1991), p. 2.

[30]

See Revised Penal Code, Art. 3.

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G.R. NO. 131144 ADVINCULA VS CA

Republic of the Philippines
SUPREME COURT
SECOND DIVISION
G.R. No. 131144

October 18, 2000

NOEL ADVINCULA, petitioner,

vs.
HON. COURT OF APPEALS, HON. SOLICITOR GENERAL, HON. EDELWINA PASTORAL, Presiding
Judge, RTC-Br. 91, Bacoor, Cavite, HON. HERMINIO P. GERVACIO, Provincial Prosecutor of
Cavite, AMANDO OCAMPO and ISAGANI OCAMPO, respondents.
BELLOSILLO, J.:
NOEL ADVINCULA, in this petition for review, assails the Decision of the Court of Appeals which set
aside the resolution of the Secretary of Justice ordering the Provincial Prosecutor of Cavite to file an
Information for Illegal Possession of Firearms against private respondents Amando Ocampo and
Isagani Ocampo.
As found by the Court of Appeals, on 1 October 1993 at around three o'clock in the afternoon,
private respondent Isagani Ocampo was on his way home when petitioner Noel Advincula and two
(2) of his drinking companions started shouting invectives at him and challenging him to a fight.
Petitioner, armed with a bolo, ran after Isagani who was able to reach home and elude his attackers.
Petitioner kept cursing Isagani who eventually left. A certain Enrique Rosas told private respondent
Amando Ocampo, father of Isagani, that petitioner had chased his son with a bolo. Amando then got
his .22 caliber gun, which he claimed was licensed, and confronted petitioner who continued
drinking with his friends. But petitioner threatened to attack Amando with his bolo, thus prompting
the latter to aim his gun upwards and fire a warning shot. Cooler heads intervened and Amando
was pacified. He left to check on his son. Later, however, he saw petitioner's drinking companions
firing at petitioner's house.1
Petitioner however has a different version. According to him, on 1 October 1993 he and his friends
were having a conversation outside his house when Isagani passed by and shouted at them. This led
to a heated argument between him and Isagani Then Isagani left but returned with his father
Amando and brother Jerry. Isagani and Amando were each armed with a gun and started petitioner
who ran home to avoid harm but private firing at respondents Isagani and Amando continued
shooting, hitting petitioner's residence in the process.2
A series of criminal complaints were filed by petitioner on one hand and private respondents on the
other. But the controversy in this petition arose from the complaint filed by petitioner on 5 April
1994 for Illegal Possession of Firearms against private respondents before the Provincial
Prosecutor of Cavite. Petitioner's complaint was supported by his complaint-affidavit, the affidavit
of one Federico San Miguel, photocopies of photographs showing bullet holes on petitioner's
residence, and certification of the Firearms and Explosives Unit of the Philippine National Police
that private respondents had no records in that office.
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After private respondents submitted their counter-affidavits, the Assistant Provincial Prosecutor,
with the approval of the Provincial Prosecutor, dismissed on 26 May 1994 petitioner's complaint
against private respondents for Illegal Possession of Firearms for lack of evidence. According to the
Provincial Prosecutor
After a close and careful study of the records of the instant case, undersigned finds and so
holds that the evidence presented by the complainant is not sufficient to engender a well
founded belief that the crime for Illegal Possession of Firearms has been committed and the
respondents are probably guilty thereof. While it is true that respondent Amando Ocampo
was possessing a gun on the date of the incident per the allegations in his counter-affidavit
that he fired a gun upwards to prevent complainant from further assaulting him yet the
possession of said firearm cannot be considered illegal or unlawful as the same is covered
by a firearm license duly issued by the chief of the Firearm and Explosives Office.
With respect to respondent Isagani Ocampo, no convincing evidence has been presented by
the complainant except the allegations appearing in his affidavit and that of his witness
which is not sufficient to establish a prima facie case for charging the former with Illegal
Possession of Firearms. Even the slug depicted in the xeroxed photo copies marked as
Annex "E" of the complaint do not show that said slugs were fired from different firearms
hence it can be presumed that the same were fired from the gun of respondent Amando
Ocampo an indication that during the incident, only the latter was in possession of a
firearm.3
On 21 October 1994 petitioner filed a petition for review with the Secretary of Justice insisting that
the pieces of evidence he presented before the Provincial Prosecutor were sufficient to make
a prima facie case against private respondents and prayed that the dismissal of his complaint be set
aside. Private respondents filed their opposition thereto stating in essence that Amando's gun was
licensed and that there was no proof other than petitioner's self-serving statement that Isagani had
carried a firearm.
In his Resolution of 6 June 1996 the Secretary of Justice granted petitioner's appeal and ordered the
Provincial Prosecutor of Cavite to file the corresponding charges of Illegal Possession of Firearms
against private respondents. As the Secretary of Justice held
There is no dispute as to the fact that respondent Amando Ocampo, by his own admission,
was in possession of a firearm. His defense that it was duly licensed, however, by the
records of the Firearms and Explosives Office (FEO). Granting, however, that said firearm
was duly licensed by the Philippine National Police, no evidence was submitted to prove
that he is possessed of the necessary permit to carry the firearm outside of his residence. In
other words, his possession of the firearm, while valid at first, became illegal the moment he
carried it out of his place of abode.
With regard to respondent Isagani Ocampo, his bare denial cannot overcome his positive
identification by complainant and his witnesses. Physical evidence, such as the bullet marks
on the walls of complainant's residence, indeed strengthen the latter's allegation that
respondents actually fired at him. The case was nevertheless dismissed on the ground of
lack of evidence. This is erroneous. In cases falling under violations of PD 1866, it is not
indispensable that the firearm used be presented in evidence as long as the possession and

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use thereof have been duly established by the testimony of several witnesses. (People v.
Jumanoy, 221 SCRA 333).4
On 25 June 1996, pursuant to the Resolution of the Secretary of Justice, the Provincial Prosecutor of
Cavite filed two (2) separate Informations against Amando and Isagani Ocampo for Illegal
Possession of Firearms before the Regional Trial Court of Bacoor, Cavite, docketed as Crim. Case No.
B-96-141 and B-96-142, respectively. On 17 December 1996, private respondents filed a Petition
for Certiorari and Prohibition under Rule 65 of the Rules of Court with a prayer for Preliminary
Injunction and Temporary Restraining Order with the Court of Appeals questioning the Resolution
of the Secretary of Justice.
In giving due course to private respondents' petition, the Court of Appeals agreed with the position
of the Solicitor General
A judicious examination of the records will show that there is no probable cause to hail
petitioners for trial for illegal possession of firearms.
The weakness of the case against petitioners is highlighted by the failure of the Information
to allege the identity of the firearms allegedly possessed by petitioners at the time of the
incident. No guns were seized or recovered from them. There is no corpus delicti. It could
not therefore be ascertained with verisimilitude that petitioners did not have the license to
possess or carry guns. Given the mutual recriminations which were generated by the
incident, it would have been facile for any of the protagonists to concoct a charge of illegal
possession of firearms against their adversary . . . In crimes involving illegal possession of
firearms, the prosecution has the burden of proving the elements thereof, viz.: The existence
of the subject firearm and the fact that the accused who owned or possessed the firearm
does not have the corresponding license or permit to possess the same. Negative allegation
of the lack of a license is an essential ingredient of the offense which the prosecution must
prove. How could the people prove beyond reasonable doubt that petitioners committed
the offense of illegal possession of firearms when the firearms are not even identified with
certainty . . .5
On the basis of the evidence on record, the Court of Appeals granted private respondents' petition
and set aside the disputed Resolution of the Secretary of Justice. Hence, this petition.
The main issue to be resolved is whether the Court of Appeals erred in granting private
respondents' petition and in setting aside the Resolution of the Secretary of Justice. In determining
this question, we need to address these questions: (a) Was there sufficient evidence to warrant the
filing of charges for Illegal Possession of Firearms against private respondents; and (b) May the
Court of Appeals set aside the Decision of the Secretary of Justice when the corresponding
Information has already been filed with the trial court?
The Court of Appeals found that no charges for Illegal Possession of Firearms could be filed against
private respondents for two (2) reasons: First, as to private respondent Amando Ocampo, he had
the requisite license to possess the firearm, which was established by sufficient evidence on record.
Second, as to private respondent Isagani Ocampo, there was no convincing evidence that he was in
possession of a gun during the incident involving him, his father and petitioner, except for the
eyewitness account of petitioner and one Federico San Miguel.

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Indeed, the rule is well settled that in cases of Illegal Possession of Firearms, two (2) things must be
shown to exist: (a) the existence of the firearm, and (b) the fact that it is not licensed.6 However, it
should be noted that inPeople v. Ramos,7 citing People v. Gy Gesiong,8 this Court ruled: " . . . Even if he
has the license, he cannot carry the firearm outside his residence without legal authority therefor."
This ruling is obviously a reiteration of the last paragraph of Sec. 1 of PD 1866
SECTION 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms
or Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms
or Ammunition . . . The penalty of prision mayor shall be imposed upon any person who shall
carry any licensed firearm outside his residence without legal authority therefor.
The Secretary of Justice, in his contested Resolution, thus made the following findings: Even if
Amando had the requisite license, there was no proof that he had the necessary permit to carry it
outside his residence; and Isagani's plain denial could not overcome his positive identification by
petitioner that he carried a firearm in assaulting him. These are findings of fact supported by
evidence which cannot be disturbed by this Court.
Besides, the rulings relied upon by the Court of Appeals and private respondents deal with the
quantum of evidence needed to convict persons for Illegal Possession of Firearms. This petition
arose from a case which was still in its preliminary stages, the issue being whether there was
probable cause to hold private respondents for trial. And probable cause, for purposes of filing
criminal information, has been defined as such facts as are sufficient to engender a well-founded
belief that a crime has been committed and that respondent is probably guilty thereof. The
determination of its existence lies within the discretion of the prosecuting officers after conducting
a preliminary investigation upon complaint of an offended party.9 Their decisions are reviewable by
the Secretary of Justice who may direct the filing of the corresponding information or to move for
the dismissal of the case.10 The procedure is in no wise in the nature of a trial that will finally
adjudicate the guilt or innocence of private respondents. The requisite evidence for convicting a
person of the crime of Illegal Possession of Firearms is not needed at this point. It is enough that the
Secretary of Justice found that the facts, as presented by both petitioner and private respondents,
would constitute a violation of PD 1866. Hence, the Secretary of Justice did not commit grave abuse
of discretion in directing the filing of criminal Informations against private respondents, and
clearly, it was error for the Court of Appeals to grant private respondents' petition for certiorari.
The Court of Appeals also took note of the fact that petitioner's appeal to the Secretary of Justice
was filed out of time. Per DOJ Circular No. 7 dated 25 January 1990, the aggrieved party has fifteen
(15) days to appeal resolutions of, among others, the Provincial Prosecutor dismissing a criminal
complaint. Petitioner filed his appeal four (4) months after receiving the Provincial Prosecutor's
decision dismissing his complaint. This notwithstanding, the Secretary of Justice gave due course to
the appeal. It can be surmised then that DOJ Circular No. 7, while aimed at facilitating the
expeditious resolution of preliminary investigations, does not tie the hands of the Secretary of
Justice if he thinks that injustice will result from the dismissal of the criminal complaint when there
is a good ground to file it.
Assuming arguendo that the Secretary of Justice was not able to establish probable cause to direct
the Provincial Prosecutor to file the charges of Illegal Possession of Firearms against private
respondents, the filing of the Petition for Certiorari with the Court of Appeals was not the proper
remedy for private respondents. It should be noted that when the Petition was filed, the
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Information was already filed by the Provincial Prosecutor with the Regional Trial Court of Bacoor,
Cavite. The criminal case commenced from that time at its course would now be under the direction
of the trial court. As we held in Crespo v. Mogul11
The preliminary investigation conducted by the fiscal for the purpose of determining
whether a prima facieexists warranting the prosecution of the accused is terminated upon
the filing of the information in the proper court. In turn, as above stated, the filing of said
information sets in motion the criminal action against the accused in Court . . . While it is
true that the fiscal has the quasi judicial discretion to determine whether or not a criminal
case should be filed in court, once the case had already been brought to court whatever
disposition the fiscal may feel should be proper in the case thereafter should be addressed
for the consideration of the Court. The only qualification is that the action of the Court must
not impair the substantial rights of the accused, or the right of the People to due process of
law.
Whatever irregularity in the proceedings the private parties may raise should be addressed to the
sound discretion of the trial court which has already acquired jurisdiction over the case. Certiorari,
being an extraordinary writ, cannot be resorted to when there are other remedies available. Private
respondents could file a Motion to Quash the Information under Rule 117 of the Rules of Court, or
let the trial proceed where they can either file a demurrer to evidence or present their evidence to
disprove the charges against them. It is well settled that criminal prosecutions may not be
restrained or stayed by injunction, preliminary or final, subject to certain exceptions, e.g., when the
determination of probable cause is done with grave abuse of discretion,12 or where a sham
preliminary investigation was hastily conducted,13 or where it is necessary for the courts to do so
for the orderly administration of justice or to prevent the use of the strong arm of the law in an
oppressive and vindictive manner.14 None of these exceptions is present in the instant case. Hence,
the Court of Appeals erred in granting private respondents' Petition for Certiorari and, worse,
setting aside the Resolution of the Secretary of Justice.
WHEREFORE, the instant petition for review is GRANTED and the assailed Decision of the Court of
Appeals is REVERSED. The Resolution dated 6 June 1996 of the Secretary of Justice is REINSTATED.
SO ORDERED.
Mendoza, Quisumbing and De Leon, Jr., JJ ., concur.
Buena, J., took no part, concurred in CA decision.

Footnotes:
See Affidavits of Isagani Ocampo and Amando Ocampo submitted to the police; CA Rollo,
pp. 34 and 36.
1

Rollo, pp. 6-7.

CA Rollo, pp. 79-80.

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4 Rollo, pp. 63-64.
5

Rollo, pp. 35-36.

People v. Ramos, G.R. Nos. 101804-07, 25 May 1993, 222 SCRA 557; People v. Arce, G. R.
Nos. 101833-34, 26 October 1993, 227 SCRA 406; People v. Luwalhati, G.R. Nos. 105289-90,
21 July 1994, 234 SCRA 327, cited by the Court of Appeals in its Decision, Rollo, pp. 38-39.
6

See Note 6.

60 Phil. 614 (1934).

Sec. 1, and Sec. 4, par. 1, Rule 112, Rules of Court.

10

Sec. 4, last par., Rule 112, Rules of Court.

11

G.R. No. 53373, 30 June 1987, 151 SCRA 462.

12

Roberts, Jr. v. Court of Appeals, G.R. No. 113930, 5 March 1996, 254 SCRA 307.

Brocka v. Enrile, G.R. Nos. 69863-65, 10 December 1990, 192 SCRA 183; Allado v. Diokno,
G.R. No. 113630, 5 May 1994, 232 SCRA 192.
13

14

See Note 11. But see also Allado v. Diokno, Note 13.

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G.R. NO. 127107 DIMATULAC VS VILLON

Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION

G.R. No. 127107 October 12, 1998

PETER PAUL DIMATULAC and VERONICA DIMATULAC, petitioners,
vs.
HON. SESINANDO VILLON in his capacity as Presiding Judge of the Regional Trial Court of Pampanga,
Branch 54; HON. TEOFISTO GUINGONA, in his capacity as Secretary of Justice; MAYOR SANTIAGO
YABUT, SERVILLANO YABUT, MARTIN YABUT and FORTUNATO MALLARI, respondents.

DAVIDE, JR., J.:

The issues raised by petitioners in their Memorandum 1 and by the Office of the Solicitor General in its
Comment 2 in this special civil action for certiorari, prohibition and mandamus under Rule 65 of the
Rules of Court filed by petitioners, children of the deceased Police Officer 3 (PO3) Virgilio Dimatulac of
Masantol, Pampanga, may be summarized as follows:
A. WHETHER THE OFFICE OF THE PROVINCIAL PROSECUTOR
COMMITTED GRAVE ABUSE OF DISCRETION IN: (1) GIVING DUE COURSE
TO THE MOTION FOR REINVESTIGATION BY PRIVATE RESPONDENTS
AGAINST WHOM WARRANTS OF ARREST WERE ISSUED BUT WHO HAD
NOT YET BEEN BROUGHT INTO THE CUSTODY Of THE LAW; and (2)
FILING THE INFORMATION FOR HOMICIDE DESPITE KNOWLEDGE OF THE
APPEAL FROM SAID PROSECUTOR'S RESOLUTION TO THE OFFICE OF THE
SECRETARY OF JUSTICE.
B. WHETHER PUBLIC RESPONDENT JUDGE ACTED IN EXCESS OF
JURISDICTION IN PROCEEDING WITH THE ARRAIGNMENT AND IN
DENYING PETITIONERS' MOTIONS TO SET ASIDE ARRAIGNMENT AND
RECONSIDERATION THEREOF DESPITE HIS KNOWLEDGE OF THE
PENDENCY OF THE APPEAL AND THE SUBMISSION OF VITAL EVIDENCE
TO PROVE THAT MURDER AND NOT HOMICIDE WAS COMMITTED BY
THE ACCUSED.
C. WHETHER PUBLIC RESPONDENT SECRETARY OF JUSTICE COMMITTED
GRAVE ABUSE OF DISCRETION IN RECONSIDERING HIS ORDER FINDING
THAT THE CRIME COMMITTED WAS MURDER AND DIRECTING THE
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PROVINCIAL PROSECUTOR TO AMEND THE INFORMATION FROM
HOMICIDE TO MURDER.
The records and the pleadings of the parties disclose the antecedents.
On 3 November 1995, SPO3 Virgilio Dimatulac was shot dead at his residence in Barangay San Nicolas,
Masantol, Pampanga.
On 5 November 1995, a complaint for Murder was filed before the Municipal Circuit Trial Court (MCTC)
of Macabebe-Masantol in Macabebe, Pampanga, by SPO1 Renato Layug of the Masantol Police Station
against private respondents Mayor Santiago Yabut, Martin Yabut, Servillano Yabut, Evelino David,
Justino Mandap, Casti David, Francisco Yambao, Juan Magat, Arturo Naguit, Fortunato Mallari, Jesus de
la Cruz, Joselito Miranda, SPO3 Gilberto Malabanan, Aniano Magnaye, Vladimir Yumul, a certain
"Danny," and a certain "Koyang/Arding." The complaint was docketed as Criminal Case No. 95-360. After
conducting a preliminary examination in the form of searching questions and answers, and finding
probable cause, Judge Designate Serafin B. David of the MCTC issued warrants for the arrest of the
accused and directed them to file their counter-affidavits.
Only accused Evelino David, Justino Mandap, Juan Magat and Francisco Yambao were arrested; while
only Francisco Yambao submitted his counter affidavit. 3
On 1 December 1995, after appropriate proceedings, Judge David issued a Resolution 4 in Criminal Case
No. 95-360 finding reasonable ground to believe that the crime of murder had been committed and that
the accused were probably guilty thereof. His findings of fact and conclusions were as follows:
That on or about November 3, 1995, all the accused under the leadership of Mayor
Santiago "Docsay" Yabut, including two John Does identified only as Dan/Danny and
Koyang/Arding, went to Masantol, Pampanga for the purpose of looking for a certain
PO3 Virgilio Dimatulac.
At first, the accused, riding on [sic] a truck, went to the Municipal Hall of Masantol,
Pampanga inquiring about PO3 Virgilio Dimatulac. Thereafter, they went to the house of
Mayor Lacap for the purpose of inquiring [about] the [the location of the] house of PO3
Virgilio Dimatulac, until finally, they were able to reach the house of said Virgilio
Dimatulac at San Nicolas, Masantol, Pampanga.
Upon reaching the house of PO3 Virgilio Dimatulac, the truck the accused were all
riding, stopped and parked in front of the house of said PO3 Virgilio Dimatulac, some of
the accused descended from the truck and positioned themselves around the house
while others stood by the truck and the Mayor stayed [in] the truck with a bodyguard.
Accused Billy Yabut, Kati Yabut and Francisco Yambao, went inside the house of Virgilio
Dimatulac [and] were even offered coffee.
[A]ccused Yabut brothers (Kati and Billy) strongly suggested to Virgilio Dimatulac to go
down to see the Mayor outside in front of his house to say sorry.

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[W]hen Virgilio Dimatulac went down his house, suddenly [a] gun shot was heard and
then, the son of Virgilio Dimatulac, Peter Paul, started to shout the following words:
"What did you do to my father?!"
One of the men of Mayor "Docsay" Yabut shot Virgilio Dimatulac, and as a consequence,
he died; and before he expired, he left a dying declaration pointing to the group of
Mayor "Docsay" Yabut as the one responsible.
That right after Virgilio Dimatulac was shot, accused "Docsay" Yabut ordered his men to
go on board the truck and immediately left away leaving Virgilio Dimatulac bleeding and
asking for help.
On their way home to Minalin, accused Santiago "Docsay" Yabut gave money to accused
John Doe Dan/Danny and Francisco "Boy" Yambao was asked to bring the accused John
Doe to Nueva Ecija which he did.
Further, accused Santiago "Docsay" Yabut told his group to deny that they ever went to
Masantol.
The court, after having conducted preliminary examination on the complainant and the
witnesses presented, [is] satisfied that there is a [sic] reasonable ground to believe that
the crime of murder was committed and that the accused in conspiring and
confederating with one another are probably guilty thereof.
Circumstantial evidence strongly shows the presence of conspiracy.
That in order not to frustrate the ends of justice, warrants of arrest were issued against
Santiago Yabut, Martin Yabut, Servillano Yabut, Francisco Yambao, Avelino David, Casti
David, Catoy Naguit, Fortunato Mallari, Boy dela Cruz, Lito Miranda and Juan Magat with
no bail recommended.
However, with respect to accused Dan/Danny and Koyang/Arding, the court directed
the police authorities to furnish the court [a] description personae of the accused for
the purpose of issuing the needed warrant of arrest.
The accused were furnish [sic] copies of the complaint and affidavits of witnesses for
them to file their counter-affidavits in accordance to [sic] law.
As of this date, only accused Francisco "Boy" Yambao filed his counter-affidavit and all
the others waived the filing of the same.
A close evaluation of the evidence submitted by the accused Francisco Yambao which
the court finds it [sic] straightforward and more or less credible and seems to be
consistent with truth, human nature and [the] natural course of things and lack of
motives [sic], the evidence of guilt against him is rather weak [compared to] the others,
which [is why] the court recommends a cash bond of P50,000.00 for his provisional
liberty, and the court's previous order of no bail for said accused is hereby reconsidered.
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WHEREFORE, premises considered, the Clerk of Court is directed to forward he entire
records of the case to the Office of the Provincial Prosecutor of Pampanga for further
action, together with the bodies of accused Francisco Yambao and Juan Magat to be
remanded to the provincial Jail of Pampanga. 5 (emphasis supplied)
In a sworn statement, 6 petitioner Peter Paul Dimatulac narrated that Mayor Santiago Yabut,
accompanied by a number of bodyguards, went to the residence of PO3 Virgilio Dimatulac to talk about
a problem between the Mayor and Peter Paul's uncle, Jun Dimatulac. Virgilio warmly welcomed the
group and even prepared coffee for them. Servillano and Martin Yabut told Virgilio to come down from
his house and apologize to the Mayor, but hardly had Virgilio descended when Peter Paul heard a
gunshot. While Peter Paul did not see who fired the shot, he was sure it was one of Mayor Yabut's
companions. Peter Paul opined that his father was killed because the latter spoke to the people of
Minalin, Pampanga, against the Mayor, Peter Paul added in a supplemental statement (Susog na
Salaysay) 7 that he heard Mayor Yabut order Virgilio killed.
It his Sinumpaang Salaysay, 8 Police Officer Leopoldo Soriano of the Masantol Municipal Police Station in
Masantol, Pampanga, declared that on 3 November 1995, between 3:30 and 4:00 p.m., while he was at
the polite station, three men approached him and asked for directions to the house of Mayor Epifanio
Lacap. Soriano recognized one of the men as SPO1 Labet Malabanan of Minalin, Pampanga. The group
left after Soriano gave them directions, but one of the three returned to ask whether PO3 Virgilio
Dimatulac was on duty, to which Soriano replied that Dimatulac was at home. The group left on board a
military truck headed for San Nicolas, Masantol, Pampanga. Later that day, SPO2 Michael Viray received
a telephone call at the police station reporting that someone had shot Virgilio Dimatulac.
Thereafter, Pampanga Assistant Provincial Prosecutor Sylvia Q. Alfonso-Flores conducted a
reinvestigation. However, it is not clear from the record whether she conducted the same motu
proprio or upon motion of private respondents Santiago Yabut, Servillano Yabut and Martin Yabut
(hereafter YABUTs). All of the accused who had not submitted their counter-affidavits before the MCTC,
except accused "Danny" and "Koyang/Arding," submitted their counter-affidavits to Assistant Provincial
Prosecutor Alfonso Flores.
In her Resolution dated 29 January 1996, 9 Assistant Provincial Prosecutor Alfonso-Flores found that the
YABUTs and the assailant Danny, to the exclusion of the other accused, were in conspiracy with one
another, but that the offense committed was only homicide, not murder. In support of such finding,
Alfonso-Flores reasoned thus:
The complainant in this case charges the crime of Murder qualified by treachery. It must
be noted that to constitute treachery, two conditions must be present, to wit, 1) the
employment of the [sic] means of execution were give [sic] the person attacked no
opportunity to defend himself or to retaliate; and 2) the means of execution were
deliberately or consciously adopted . . . .
In the instant case, the presence of the first requisite was clearly established by the
evidence, such that the attack upon the victim while descending the stairs was so
sudden and unexpected as to render him no opportunity to defend himself or to
retaliate. However, the circumstances, as portrayed by witness Peter Paul Dimatulac,
negate the presence of the second requisite. According to the said witness, the victim
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was already descending when Mayor Yabut commanded the assailant to shoot him, and
immediately thereafter, he heard the gunshot. This would therefore show that the
assailant did not consciously adopt the position of the victim at the time he fired the
fatal shot. The command of Mayor Yabut to shoot came so sudden as to afford no
opportunity for the assailant to choose the means or method of attack. The act of
Mayor Yabut in giving the command to shoot further bolster[s] the fact that the
conspirator did not concert the means and method of attack nor the manner thereof.
Otherwise there would have been no necessity for him to give the order to the assailant.
The method and manner of attack was adopted by the assailant at the spur of the
moment and the vulnerable position of the victim was not deliberately and consciously
adopted. Treachery therefore could not be appreciated and the crime reasonably
believe[d] to have been committed is Homicide as no circumstance would qualify the
killing to murder.
Alfonso-Flores then ruled:
WHEREFORE, in view of the foregoing, it is hereby recommended that:
1. An information be filed with the proper court
charging Santiago, Servillano and Martin all surnamed
Yabut, and one John Doe alias Danny as conspirators in
the crime of Homicide;
2. The case be dismissed against accused Evelino David,
Justino Mandap a.k.a. Casti David, Francisco Yambao,
Juan Magat, Arturo Naguit, Bladimir Dimatulac,
Fortunato Mallari, Aniano Magnaye, Gilberto
Malabanan, Jesus dela Cruz and Joselito Miranda.
Bail of P20,000.00 for each of the accused is likewise recommended.
The Resolution discloses that Alfonso-Flores conducted a hearing on 11 January 1996 and clarificatory
questions were propounded only to Peter Paul Dimatulac.
On 23 February 1996, before the Information for homicide was filed, complainants, herein petitioners,
appealed the resolution of Alfonso-Flores to the Secretary of the Department of Justice (DOJ). 10 They
alleged in their appeal that:
1. THE ASSISTANT PROVINCIAL PROSECUTOR NOT ONLY ERRED IN
RULING THAT THERE WAS NO TREACHERY TO QUALIFY THE CRIME TO
MURDER, BUT LIKEWISE ERRED IN NOT APPRECIATING THE PRESENCE
OF OTHER QUALIFYING CIRCUMSTANCES, TO WIT:
(A) THAT THE ACCUSED COMMITTED THE CRIME WITH
THE AID OF ARMED MEN AND WITH THE USE OF A
PERSON TO INSURE OR AFFORD IMPUNITY;

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(B) THAT THE CRIME WAS COMMITTED IN
CONSIDERATION OF A PRICE, REWARD, OR PROMISE;
(C) THAT THE CRIME WAS COMMITTED ON THE
OCCASION OF A DESTRUCTIVE CYCLONE, WHEN THE
SUPER-TYPHOON "ROSING" WAS RAGING ON
NOVEMBER 3, 1995;
(D) THAT THE CRIME WAS COMMITTED WITH EVIDENT
PREMEDITATION;
2. THAT THE HONORABLE INVESTIGATING ASSISTANT PROSECUTOR
ERRED IN DISMISSING THE COMPLAINT AGAINST FORTUNATO MALLARI
AND FRANCISCO YAMBAO BY RULING OUT CONSPIRACY WITH THE
YABUT BROTHERS AS AGAINST FORTUNATO MALLARI AND NOT
CHARGING FRANCISCO YAMBAO AS AN ACCESSORY TO MURDER.
To refute Alfonso-Flores' finding that the means of execution were not deliberately adopted, petitioners
asserted that the meeting of the accused and the victim was not accidental as the former purposely
searched for the victim at the height of a typhoon, while accused Mayor Santiago Yabut even remarked
to his co-accused "Danny," "Dikitan mo lang, alam mo na kung ano ang gagawin mo, bahala ka na" (Just
stay close to him, you know what to do). Thus, Danny positioned himself near the stairs to goad the
victim to come out of his house, while Fortunato Mallari represented to the deceased that the latter was
being invited by a certain General Ventura. When the victim declined the invitation by claiming he was
sick, accused Servillano Yabut persuaded the victim to come down by saying, "[T]o settle this matter,
just apologize to the Mayor who is in the truck." In view of that enticement, the victim came down,
while Danny waited in ambush. To emphasize the accused's resolve to kill the deceased, petitioners
further narrated that when the deceased ran away after the first shot, the gunman still pursued him,
while Mayor Santiago Yabut, who was a doctor, kept away at a safe distance and told everyone in the
truck, "Tama na, bilisan ninyo," (That's enough, move quickly) without giving medical assistance to the
deceased and without exerting any effort to arrest the gunman.
The Office of the Provincial Prosecutor of Pampanga was furnished with a copy of the Appeal.
On 26 February 1996, Provincial Prosecutor Jesus Y. Manarang issued a Resolution 11 ordering the
release of accused Evelino David, Justino Mandap, Juan Magat and Arturo Naguit (who were then
detained) in view of the aforementioned resolution of Alfonso-Flores, which, as stated in the order, the
Provincial Prosecutor approved "on February 7, 1996."
On 28 February 1996, an Information 12 for Homicide, signed by Assistant Provincial Prosecutor Flores
and Provincial Prosecutor Jesus Y. Manarang, was filed before Branch 55 of the Regional Trial Court
(RTC) in Macabebe, Pampanga, against the YABUTs and John Doe alias "Danny Manalili" and docketed
as Criminal Case No. 96-1667(M). The accusatory portion of the information read as follows:
That on or about the 3rd day of November, 1995, in the municipality of Masantol,
province of Pampanga, Philippines and within the jurisdiction of this Honorable Court,
the above-named accused, conspiring and confederating together and mutually helping
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one another, with deliberate intent to take the life of PO3 Virgilio A. Dimatulac, did then
and there wilfully, unlawfully and feloniously shoot the said PO3 Virgilio A. Dimatulac on
his abdomen with the use of a handgun, thereby inflicting, upon him a gunshot wound
which cause[d] the death of the said victim.
All contrary to law.
The Information, although dated 29 January 1996 was signed by Provincial Prosecutor Manarang on
"2/27/96",i.e., a day before its filing in court.
On 28 February 1996, Judge Reynaldo V. Roura, presiding judge of Branch 55, approved the cash bonds
of the YABUTs, each in the amount of P20,000.00, and recalled the warrants for their arrest. 13
On 29 February 1996, Atty. Amado Valdez, who had entered his appearance as private prosecutor, filed
two (2) motions with the trial court: (1) a Motion to Issue Hold Departure Order Against All
Accuseds 14 [sic]; and an (2) Urgent Motion to Defer Proceedings, 15 copies of which were furnished the
Office of the Provincial Prosecutor of Pampanga. The second motion was grounded on the pendency of
the appeal before the Secretary of Justice and a copy thereof was attached to the motion. Judge Roura
set the motions for hearing on 8 March 1996. 16
On 7 March 1996, Judge Roura ordered the arrest of the remaining accused, Danny Manalili. 17
On 8 March 1996, the YABUTs filed their opposition 18 to the Motion to Issue Hold Departure Order and
the Motion to Defer Proceedings. The YABUTs asserted that, as to the first, by posting bail bonds, they
submitted to the jurisdiction of the trial court and were bound by the condition therein to "surrender
themselves whenever so required by the court, and to seek permission from the court should any one of
them desire to travel;" and, as to the second, the pendency of the appeal before the Secretary of Justice
was not a ground to defer arraignment; moreover, the trial court had to consider their right to a speedy
trial, especially since there was no definite date for the resolution of the appeal. Then invoking this
Court's rulings in Crespo v. Mogul 19 and Balgos v. Sandiganbayan, 20 the YABUTs further asserted that
petitioners should have filed a motion to defer the filing of the information for homicide with the Office
of the Provincial Prosecutor, or sought, from the Secretary of Justice, an order directing the Provincial
Prosecutor to defer the filing of the information in court.
In a Reply 21 to the opposition, the private prosecution, citing Section 20 of Rule 114 of the Rules of
Court, insisted on the need for a hold-departure order against the accused; argued that the accused's
right to a speedy trial would not be impaired because the appeal to the Secretary of Justice was filed
pursuant to Department Order No. 223 of the DOJ and there was clear and convincing proof that the
killing was committed with treachery and other qualifying circumstances not absorbed in treachery; and
contended that the accused's invocation of the right to a speedy trial was inconsistent with their filing of
various dilatory motions during the preliminary investigation. The YABUTs filed a Rejoinder 22 to this
Opposition.
On 26 March 1996, Judge Roura deferred resolution of the Motion to Issue a Hold Departure Order until
"such time that all the accused who are out on bail are arraigned," but denied the Motion to Defer
Proceedings as he found no compelling reason therefor, considering that although the appeal was filed
on 23 February 1996, "the private prosecution has not shown any indication that [the] appeal was given
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due course by the Secretary of Justice." Judge Roura also set the arraignment of the accused on 12 April
1996. 23
It would appear that the private prosecution moved to reconsider the order denying the Motion to
Defer Proceedings since, on 12 April 1996, Judge Roura issued an Order 24 giving the private prosecutor
"ten (10) days from today within which to file a petition for certiorari questioning the order of the Court
denying his motion for reconsideration of the order of March 26, 1996." Arraignment was then reset to
3 May 1996.
On 19 April 1996, petitioners filed a motion to inhibit Judge Roura 25 from hearing Criminal Case No. 961667(M) on the ground that he: (a) hastily set the case for arraignment while the former's appeal in the
DOJ was still pending evaluation; and (b) prejudged the matter, having remarked in open court that
there was "nothing in the records of the case that would qualify the case into Murder." At the same
time, petitioners filed a petition for prohibition 26 with the Court of Appeals docketed therein as CA-G.R.
SP No. 40393, to enjoin Judge Roura from proceeding with the arraignment in Criminal Case No. 961667(M).
On 24 April 1996, Public Prosecutor Olimpio R. Datu filed a Manifestation and Comment 27 with the trial
court wherein he opposed the motion to inhibit Judge Roura; manifested that "there is nothing in the
record . . . which shows that the subject killing is qualified into murder;" and announced that he "will no
longer allow the private prosecutor to participate or handle the prosecution of [the] case" in view of the
latter's petition to inhibit Judge Roura.
On 29 April 1996, Judge Roura voluntarily inhibited himself and ordered the case transferred to Branch
54 of the RTC, presided over by herein public respondent Judge Sesinando Villon. 28
On 30 April 1996, the Branch Clerk of Court of Branch 54 of the RTC received the record of Criminal Case
No. 96-1667(M). 29
On 30 April 1996, petitioners filed with the trial court a Manifestation 30 submitting, in connection with
their Motion to Defer Proceedings and Motion to Inhibit Judge Roura, documentary evidence to support
their contention that the offense committed was murder, not homicide. The documents which they
claimed were not earlier submitted by the public prosecution were the following:
a. Counter-Affidavit of SPO1 Gilberto D. Malabanan.
b. Sinumpaang Salaysay of Vladimir Yumul y Dimatulac.
c. Counter-Affidavit of Francisco I. Yambao.
d. Counter-Affidavit of SPO2 Fortunato Mallari.
e. Sinumpaang Salaysay of Aniano Magnaye.
f. Sinumpaang Salaysay of Leopoldo Soriano.

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g. Transcript of Stenographic Notes of the Preliminary Investigation of
Criminal Case No. 95-360, containing the testimony of:
a. Peter Paul Dimatulac
b. Vladimir D. Yumul
c. SPO1 Gilberto Malabanan
d. PO3 Alfonso Canilao
h. Investigation Report-dated November 4, 1995.
i. Dying declaration of Virgilio Dimatulac.
j. Sketch
k. Unscaled Sketch
Likewise on 30 April 1996, the Court of Appeals promulgated, in CA-G.R. SP No. 40393, a
Resolution 31 directing respondent therein to file his comment to the petition within ten days from
notice and to show cause within the same period "why no writ of preliminary injunction should be
issued as prayed for in the petition." However, the Court of Appeals "deferred action" on the prayer for
a temporary restraining order "until after the required comment [was] submitted."
On 3 May 1996, petitioners filed an Ex-Parte Manifestation 32 with the RTC, furnishing the trial court
with a copy of the aforementioned resolution of the Court of Appeals and drawing the attention of the
trial court to the rulings of this Court in "Valdez vs. Aquilisan, (133 SCRA 150), Galman vs.
Sandiganbayan, and Eternal Gardens Memorial Park Corp. vs. Court of Appeals . . . as well as the
decision in Paul G. Roberts vs. The Court of Appeals."
On 3 May 1996, Judge Villon issued an order resetting arraignment of the accused to 20 May 1996. 33 On
the latter date, the YABUTs each entered a plea of not guilty. 34
Alarmed by the conduct of arraignment, petitioners filed, on 27 May 1996, an Urgent Motion to Set
Aside Arraignment, 35 citing the resolution of 30 April 1996 of the Court of Appeals in CA-G.R. SP No.
40393 which, inter alia, deferred resolution on the application for a temporary restraining order "until
after the required comment is submitted by the respondent;" stressed that the filing of the information
for the lesser offense of homicide was "clearly unjust and contrary to law in view of the unquestionable
attendance of circumstances qualifying the killing to murder;" and asserted that a number of Supreme
Court decisions supported suspension of the proceedings in view of the pendency of their appeal before
the DOJ.
On 31 May 1997, Judge Villon issued an Order 36 directing the accused to file their comment on the
Urgent Motion to Set Aside Arraignment within fifteen days from notice.

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In a letter 37 addressed to the Provincial Prosecutor dated 7 June 1996, public respondent Secretary
Teofisto Guingona of the DOJ resolved the appeal in favor of petitioners. Secretary Guingona ruled that
treachery was present and directed the Provincial Prosecutor of San Fernando, Pampanga "to amend
the information filed against the accused from homicide to murder," and to include Fortunato Mallari as
accused in the amended information. The findings and conclusions of Secretary Guingona read as
follows:
Contrary to your findings, we find that there is treachery that attended the killing of PO3
Dimatulac. Undisputedly, the victim was suddenly shot while he was descending the
stairs. The attack was unexpected as the victim was unarmed and on his way to make
peace with Mayor Yabut, he was unsuspecting so to speak. From the circumstances
surrounding his killing, PO3 Dimatulac was indeed deprived of an opportunity to defend
himself or to retaliate.
Corollarily, we are also convinced that such mode of attack was consciously and
deliberately adopted by the respondents to ensure the accomplishment of their criminal
objective. The admission of respondent Malabanan is replete with details on how the
principal respondent, Mayor Yabut, in conspiracy with the assailant and others, had
consciously and deliberately adopted means to ensure the execution of the crime.
According to him, while they were on their way to the victim's house, Mayor Yabut
already instructed Danny, the assailant, that, "Dikitan mo lang, alam no na king ano ang
gagawin mo, bahala ka na" This explains why Danny positioned himself near the stairs of
the victim's house armed with a handgun, such positioning was precisely adopted as a
means to ensure the accomplishment of their evil design and Mayor Yabut ordered
nobody else but Danny to shoot the victim while descending the stairs as his position
was very strategic to ensure the killing of the victim.
As has been repeatedly held, to constitute treachery, two conditions must be present,
to wit: (1) employment of means of execution that gives the person [attacked] no
opportunity to defend himself or retaliate; and (2) the means of execution were
deliberately or consciously adopted (People vs. Talaver, 230 SCRA 281 [1994]). In the
case at bar, these two (2) requisites are present as established from the foregoing
discussion. Hence, there being a qualifying circumstance of treachery, the crime
committed herein is murder, not homicide (People vs. Gapasin, 231 SCRA 728 [1994]).
Anent the alleged participation of respondents Fortunato Mallari and Francisco Yambao,
we find sufficient evidence against Mallari as part of the conspiracy but not against
Yambao. As can be gleaned from the sworn-statement of Yambao, which appears to be
credible, Mallari tried also to persuade the victim to go with them, using as a reason
that he (victim) was being invited by General Ventura. He was also seen trying to fix the
gun which was used in killing the victim. These actuations are inconsistent with the
claim that his presence at the crime scene was merely passive.
On the other hand, we find credible the version and explanation of Yambao. Indeed,
under the obtaining circumstances, Yambao had no other option but to accede to the
request of Mayor Yabut to provide transportation to the assailant. There being an actual

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danger to his life then, and having acted under the impulse of an uncontrollable fear,
reason dictates that he should be freed from criminal liability. 38
The YABUTs moved to reconsider the resolution, 39 citing Section 4 of "Administrative/Administration
Order No. 223 of the DOJ." 40
In an Ex-Parte Manifestation 41 dated 21 June 1996, petitioners called the trial court's attention to the
resolution of the Secretary of Justice, a copy of which was attached thereto. Later, in a Manifestation
and Motion 42 dated 1 July 1996, petitioners asked the trial court to grant their motion to set aside
arraignment. Attached thereto was a copy of the Manifestation and Motion 43 of the Solicitor General
dated 18 June 1996 filed with the Court of Appeals in CA-G.R. SP No. 40393 wherein the Solicitor
General joined cause with petitioners and prayed that "in the better interest of justice, [the] Petition for
Prohibition be GRANTED and a writ of prohibition be ISSUED forthwith." In support of said prayer, the
Solicitor General argued:
2. There is merit to the cause of petitioners. If the Secretary of Justice
would find their Appeal meritorious, the Provincial Prosecutor would be
directed to upgrade the Information to Murder and extreme prejudice if
not gross injustice would thereby have been avoided.
3. Consequently, the undersigned counsel interpose no objection to the
issuance of a writ of prohibition enjoining respondent Judge from
holding further proceedings in Criminal Case No. 96-1667-M,
particularly in holding the arraignment of the accused, pending
resolution of the Appeals with the Secretary of Justice.
The YABUTs opposed 44 petitioner's Manifestation and Motion dated 1 July 1996 because they
had already been arraigned and, therefore, would be placed in double jeopardy; and that the
public prosecutor not the private prosecutor had control of the prosecution of the case.
In his letter 45 dated 1 July 1996 addressed to the Provincial Prosecutor of Pampanga, the Secretary of
Justice set aside his order to amend the information from homicide to murder considering that the
appeal was rendered moot and academic by the arraignment of the accused for homicide and their
having entered their pleas of not guilty. The Secretary stated:
Considering that Santiago Yabut, Servillano Yabut and Martin Yabut had already been
arraigned on May 20, 1996 and had pleaded not guilty to the charge of homicide, as
shown by a copy of the court order dated May 20, 1996, the petition for review insofar
as the respondents-Yabut are concerned has been rendered moot and academic.
However, the Secretary reiterated that Fortunato Mallari should be included in the information
for homicide.
On 30 July 1996, Public Prosecutor Jaime Bustos filed a Motion for Leave to Amend Information and to
Admit Amended Information. 46 The Amended Information 47 merely impleaded Fortunato Mallari as one
of the accused.

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In his Order 48 of 1 August 1996, Judge Villon denied petitioners' motion to set aside arraignment, citing
Section 4, DOJ Department Order No. 223, and the letter of the Secretary of Justice of 1 July 1996.
Petitioners forthwith moved for reconsideration 49 of the order, arguing that the Motion to Defer the
Proceedings filed by petitioners was meritorious and did not violate the accused's right to speedy trial;
and that the DOJ had ruled that the proper offense to be charged was murder and did not reverse such
finding. Petitioners also cited the Solicitor General's stand 50 in CA-G.R. SP No. 40393 that holding
accused's arraignment in abeyance was proper under the circumstances. Finally, petitioners contended
that in proceeding with the arraignment despite knowledge of a petition for prohibition pending before
the Court of Appeals, the trial court violated Section 3(d), Rule 71 of the Rules of Court on indirect
contempt. The YABUTs opposed the motion on the ground that it raised no argument which had not yet
been resolved. 51
On 3 September 1996, petitioners filed a Motion to Defer Arraignment of Accused Fortunato
Mallari, 52 which the trial court granted in view of petitioners' motion for reconsideration of the court's
order denying petitioners' motion to set aside private respondents' arraignment. 53 As expected, Mallari
moved to reconsider the trial court's order and clamored for consistency in the trial court's rulings. 54
In an order 55 dated 15 October 1996, Judge Villon denied reconsideration of the order denying
petitioners' motion to set aside arraignment, citing the YABUTs' right to a speedy trial and explaining
that the prosecution of an offense should be under the control of the public prosecutor, whereas
petitioners did not obtain the conformity of the prosecutor before they filed various motions to defer
proceedings. Considering said order, Judge Villon deemed accused Mallari's motion for reconsideration
moot and academic. 56
On 16 October 1996, the Court of Appeals promulgated its decision 57 in CA-G.R. SP No. 40393 dismissing
the petition therein for having become moot and academic in view of Judge Roura's voluntary inhibition,
the arraignment of the YABUTs and the dismissal, by the Secretary of Justice, of petitioners' appeal as it
had been mooted by said arraignment.
Judge Villon was later detailed to Branch 24 of the Regional Trial Court of Manila, and Judge Roura was
ordered by the Supreme Court to preside over cases pending in Branch 54 of the Regional Trial Court of
Macabebe, Pampanga, which was previously presided over by Judge Villon. 58 Judge Roura informed the
Office of the Court Administrator and this Court that he had already inhibited himself from hearing
Criminal Case No. 96-1667(M). 59
On 28 December 1996, petitioners filed the instant Petition for Certiorari/Prohibition and Mandamus.
They urge this Court to reverse the order of respondent Judge denying their Motion to Set Aside
Arraignment; set aside arraignment of private respondents; order that no further action be taken by any
court in Criminal Case No. 96-1667(M) until this petition is resolved; and order respondents Secretary of
Justice and the prosecutors concerned to amend the information from homicide to murder.
Petitioners insist that the killing of PO3 Virgilio Dimatulac was attended by treachery since private
respondents tricked the victim into coming out of his house and then shot him while he was going down
the stairs. There was, petitioners claim, "an orchestrated effort on the part of [private respondents] to
manipulate the rules on administrative appeals with the end in view of evading prosecution for the
[non-bailable] offense of murder," as shown by the following events or circumstances:

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(1) Assistant Provincial Prosecutor Alfonso-Flores downgraded the
nature of the crime committed to homicide, a bailable offense, on
strength of a motion for reinvestigation filed by the YABUTs who had
not yet been arrested.
(2) Respondent Mayor and his companions returned to Minalin after the
killing and went into hiding for four (4) months until the offense charged
was downgraded.
(3) The information for homicide was nevertheless filed despite notice
to the Office of the Provincial Prosecutor of the appeal filed with the
Secretary of Justice and request to defer any action on the case.
(4) The Office of the Public Prosecutor of Pampanga disallowed the
private prosecutor from further participating in the case.
(5) Judge Roura denied the motion to defer proceedings and declared in
open court that there was no prima facie case for murder,
notwithstanding the pendency of petitioners' appeal with respondent
Secretary of Justice.
(6) Even before receipt by petitioners of Judge Roura's order inhibiting
himself and the order regarding the transfer of the case to Branch 54,
public respondent Judge Villon set the case for arraignment and,
without notice to petitioners, forthwith arraigned the accused on the
information for homicide on 20 May 1996, despite the pendency of the
petition for prohibition before the Court of Appeals and of the appeal
before the DOJ.
(7) The Pampanga Provincial Prosecutor's Office did not object to the
arraignment nor take any action to prevent further proceedings on the
case despite knowledge of the pendency of the appeal.
(8) The Provincial Prosecutor did not comply with the resolution of 7
June 1996 of the Secretary of Justice directing the amendment of the
information to charge the crime of murder.
Petitioners argue that in light of Roberts, Jr., v. Court of Appeals, 60 respondent Judge acted in excess of
his jurisdiction in proceeding with private respondents' arraignment for homicide and denying
petitioners' motion to set aside arraignment. Moreover, although respondent Judge Villon was not the
respondent in CA-G.R. SP No. 40393; he should have deferred the proceedings just the same as the very
issue in said case was whether or not the RTC could proceed with the arraignment despite the pending
review of the case by respondent Secretary of Justice. Further, Judge Villon unjustly invoked private
respondents' right to a speedy trial, after a lapse of barely three (3) months from the filing of the
information on 23 February 1996; overlooked that private respondents were estopped from invoking
said right as they went into hiding after the killing, only to resurface when the charge was reduced to
homicide; and failed to detect the Provincial Prosecutor's bias in favor of private respondents. Judge
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Villon should have been more circumspect as he knew that by proceeding with the arraignment, the
appeal with the DOJ would be rendered technically nugatory.
Finally, petitioners submit that the DOJ rule prohibiting appeals from resolutions of prosecutors to the
Secretary of Justice once the accused had already been arraigned applies only to instances where the
appellants are the accused, since by submitting to arraignment, they voluntarily abandon their appeal.
In their comment, private respondents contend that no sufficient legal justification exists to set aside
private respondents' arraignment, it having already been reset twice from 12 April 1996 to 3 may 1996,
due to petitioners' pending appeals with the DOJ; and from 3 May 1996 to 20 May 1996, due to the
transfer of this case to Branch 54. Moreover, as of the latter date, the DOJ had not yet resolved
petitioners' appeal and the DOJ did not request that arraignment be held in abeyance, despite the fact
that petitioners' appeal had been filed as early as 23 February 1996, at least 86 days prior to private
respondents' arraignment. They point out that petitioners did not move to reconsider the RTC's 26
March 1996 denial of the Motion to Defer, opting instead for Judge Roura's recusal and recourse to the
Court of Appeals, and as no restraining order was issued by the Court of Appeals, it was but proper for
respondent Judge to proceed with the arraignment of private respondent, to which the public and
private prosecutors did not object.
Private respondents further argue that the decision of respondent Secretary, involving as it did the
exercise of discretionary powers, is not subject to judicial review. Under the principle of separation of
powers, petitioners' recourse should have been to the President. While as regards petitioners' plea that
the Secretary be compelled to amend the information from homicide to murder, private respondents
submit that mandamus does not lie, as the determination as to what offense was committed is a
prerogative of the DOJ, subject only to the control of the President.
As regards DOJ Department Order No. 223, private respondents theorize that appeal by complainants is
allowed only if the complaint is dismissed by the prosecutor and not when there is a finding of probable
cause, in which case, only the accused can appeal. Hence, petitioners' appeal was improper.
Finally, private respondents stress the fact that petitioners never appealed the withdrawal by the public
prosecutor of the private prosecutor's authority to handle the case.
In its comment for the public respondents, the Office of the Solicitor General (OSG) prays that the
petition be denied because: (a) in accordance with Section 4 of DOJ Order No. 223, upon arraignment of
the accused, the appeal to the Secretary of Justice shall be dismissed motu proprio; (b) the filing of the
information for homicide was in compliance with the directive under Section 4(2), D.O. No. 223, i.e., an
appeal or motion for reinvestigation from a resolution finding probable cause shall not hold the filing of
the information in court; (c) the trial court even accommodated petitioners by initially deferring
arraignment pending resolution by the Court of Appeals of the petition for prohibition, and since said
Court did not issue any restraining order, arraignment was properly had; and (d) reliance on Roberts is
misplaced, as there, accused Roberts and others had not been arraigned and respondent Judge had
ordered the indefinite postponement of the arraignment pending resolution of their petitions before
the Court of Appeals and the Supreme Court.
We now consider the issues enumerated at the outset of this ponencia.

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Plainly, the proceedings below were replete with procedural irregularities which lead us to conclude
that something had gone awry in the Office of the Provincial Prosecutor of Pampanga resulting in
manifest advantage to the accused, more particularly the YABUTs, and grave prejudice to the State and
to private complainants, herein petitioners.
First, warrants for the arrest of the YABUTs were issued by the MCTC, with no bail recommended for
their temporary liberty. However, for one reason or another undisclosed in the record, the YABUTs were
not arrested; neither did they surrender. Hence, they were never brought into the custody of the law.
Yet, Asst. Provincial Fiscal Alfonso Reyes, either motu proprio or upon motion of the YABUTs, conducted
a reinvestigation. Since said accused were at large, Alfonso-Reyes should not have done so. While it may
be true that under the second paragraph of Section 5, Rule 112 of the Rules of Court, the provincial
prosecutor may disagree with the findings of the judge who conducted the preliminary investigation, as
here, this difference of opinion must be on the basis of the review of the record and evidence
transmitted by the judge. Were that all she did, as she had no other option under the circumstance, she
was without any other choice but to sustain the MCTC since the YABUTs and all other accused, except
Francisco Yambao, waived the filing of their counter-affidavits. Then, further stretching her magnanimity
in favor of the accused, Alfonso-Reyes allowed the YABUTs to submit their counter-affidavits without
first demanding that they surrender because of the standing warrants of arrest against them. In short,
Alfonso-Reyes allowed the YABUTs to make a mockery of the law in order that they gain their
provisional liberty pending trial and be charged with the lesser offense of homicide.
Second, Alfonso-Reyes recommended a bond of only P20,000.00 for the YABUTs and co-accused
"Danny," despite the fact that they were charged with homicide and they were, at the time, fugitives
from justice for having avoided service of the warrant of arrest issued by the MCTC and having failed to
voluntarily surrender.
Third, Alfonso-Reyes was fully aware of the private prosecution's appeal to the DOJ from her resolution.
She could not have been ignorant of the fact that the appeal vigorously assailed her finding that there
was no qualifying circumstance attending the killing, and that the private prosecution had convincing
arguments to support the appeal. The subsequent resolution of the Secretary of Justice confirmed the
correctness of the private prosecution's stand and exposed the blatant errors of Alfonso-Reyes.
Fourth, despite the pendency of the appeal, Alfonso-Reyes filed the Information for homicide on 28
February 1996. It is interesting to note that while the information was dated 29 January 1996, it was
approved by the Provincial Prosecutor only on 27 February 1996. This simply means that the Office of
the Prosecutor was not, initially, in a hurry to file the Information. No undue prejudice could have been
caused to the YABUTs if it were filed even later for the YABUTs were still at large; in fact, they filed their
bonds of P20,000.00 each only after the filing of the Information. If Alfonso-Flores was extremely
generous to the YABUTs, no compelling reason existed why she could not afford the offended parties
the same courtesy by at least waiting for instructions from the Secretary of Justice in view of the appeal,
if she were unwilling to voluntarily ask the latter for instructions. Clearly, under the circumstances, the
latter course of action would have been the most prudent thing to do.
Fifth, as if to show further bias in favor of the YABUTs, the Office of the Provincial Prosecutor of
Pampanga did not even bother to motu proprio, inform the trial court that the private prosecution had
appealed from the resolution of Alfonso-Flores and had sought, with all the vigour it could muster, the
filing of an information for murder, as found by the MCTC and established by the evidence before it.
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Unsatisfied with what had been done so far to accommodate the YABUTs, the Office of the Provincial
Prosecutor did not even have the decency to agree to defer arraignment despite its continuing
knowledge of the pendency of the appeal. This amounted to defiance of the DOJ's power of control and
supervision over prosecutors, a matter which we shall later elaborate on. Moreover, in an
unprecedented move, the trial prosecutor, Olimpio Datu, had the temerity, if not arrogance, to
announce that "he will no longer allow the private prosecutor to participate or handle the prosecution
of [the] case" simply because the private prosecution had asked for the inhibition of Judge Roura. Said
prosecutor forgot that since the offended parties here had not waived the civil action nor expressly
reserved their right to institute it separately from the criminal action, then they had the right to
intervene in the criminal case pursuant to Section 16 of Rule 1l0 of the Rules of Court.
It is undebatable that petitioners had the right to appeal to the DOJ from the resolution of AlfonsoFlores. The last paragraph of Section 4 of Rule 112 of the Rules of Court provides:
If upon petition by a proper party, the Secretary 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.
It is clear from the above, that the proper party referred to therein could be either the offended
party or the accused.
More importantly, an appeal to the DOJ is an invocation of the Secretary's power of control over
prosecutors. Thus, in Ledesma v. Court of Appeals, 16 we emphatically held:
Decisions or resolutions of prosecutors are subject to appeal to the secretary of justice
who, under the Revised Administrative Code, 62 exercises the power of direct control
and supervision over said prosecutors; and who, may thus affirm, nullify, reverse or
modify their rulings.
Sec. 39, Chapter 8, Book IV in relation to Section[s] 5, 8, and 9, Chapter 2, Title III of the
Code gives the secretary of justice supervision and control over the Office of the Chief
Prosecutor and the Provincial and City Prosecution Offices. The scope of his power of
supervision and control is delineated in Section 38, paragraph 1, Chapter 7, Book IV of
the Code:
(1) Supervision and Control. Supervision and control shall include
authority to act directly whenever a specific function is entrusted by law
or regulation to a subordinate; direct the performance of duty; restrain
the commission of acts; review, approve, reverse or modify acts and
decisions of subordinate officials or units; . . . .
Supplementing the aforequoted provisions are Section 3 of R.A. 3783 and Section 37 of
Act 4007, which read:
Sec. 3. . . .

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The Chief State Prosecutor, the Assistant Chief State Prosecutors, the
Senior State Prosecutors, and the State Prosecutors shall . . . perform
such other duties as may be assigned to them by the Secretary of Justice
in the interest of public service.
xxx xxx xxx
Sec. 37. The provisions of the existing law to the contrary
notwithstanding, whenever a specific power, authority, duty, function,
or activity is entrusted to a chief of bureau, office, division or service,
the same shall be understood as also conferred upon the proper
Department Head who shall have authority to act directly in pursuance
thereof, or to review, modify, or revoke any decision or action of said
chief of bureau, office, division or service.
"Supervision" and "control" of a department head over his subordinates have been
defined in administrative law as follows:
In administrative law, supervision means overseeing or the power or
authority of an officer to see that subordinate officers perform their
duties. If the latter fail or neglect to fulfill them, the former may take
such action or step as prescribed by law to make them perform such
duties. Control, on the other hand, means the power of an officer to
alter or modify or nullify or set aside what a subordinate officer had
done in the performance of his duties and to substitute the judgment of
the former for that of the latter.
Review as an act of supervision and control by the justice secretary over the fiscals and
prosecutors finds basis in the doctrine of exhaustion of administrative remedies which
holds that mistakes, abuses or negligence committed in the initial steps of an
administrative activity or by an administrative agency should be corrected by higher
administrative authorities, and not directly by courts. As a rule, only after administrative
remedies are exhausted may judicial recourse be allowed.
DOJ Order No. 223 of 30 June 1993 recognizes the right of both the offended parties and the accused to
appeal from resolutions in preliminary investigations or reinvestigations, as provided for in Section 1 and
Section 4, respectively. Section 1 thereof provides, thus:
Sec. 1. What May Be Appealed. Only resolutions of the Chief State
Prosecutor/Regional State Prosecutor/Prosecutor or City Prosecutor dismissing a
criminal complaint may be the subject of an appeal to the Secretary of Justice except as
otherwise provided in Section 4 hereof.
While the section speaks of resolutions dismissing a criminal complaint, petitioners herein were not
barred from appealing from the resolution holding that only homicide was committed, considering that
their complaint was for murder. By holding that only homicide was committed, the Provincial
Prosecutor's Office of Pampanga effectively "dismissed" the complaint for murder. Accordingly,
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petitioners could file an appeal under said Section 1. To rule otherwise would be to forever bar redress
of a valid grievance, especially where the investigating prosecutor, as in this case, demonstrated what
unquestionably appeared to be unmitigated bias in favor of the accused. Section 1 is not to be literally
applied in the sense that appeals by the offended parties are allowed only in cases of dismissal of the
complaint, otherwise the last paragraph of Section 4, Rule 112, Rules of Court would be meaningless.
We cannot accept the view of the Office of the Solicitor General and private respondents that Section 1
of DOJ Department Order No. 223 is the controlling rule; hence, pursuant to the second paragraph
thereof the appeal of petitioners did not hold the filing of the information. As stated above, Section 4
applies even to appeals by the respondents or accused. The provision 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 a showing of manifest error or grave abuse of
discretion. Notwithstanding the showing of minifest 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. (emphasis supplied)
The underlined portion indisputably shows that the section refers to appeals by respondents or accused.
So we held in Marcelo v. Court of
Appeals, 63 that nothing in the ruling in Crespo v. Mogul, 64 reiterated in Roberts v. Court of
Appeals, 65 forecloses the power of authority of the Secretary of Justice to review resolutions of his
subordinates in criminal cases despite an information already having been filed in court. 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. In Roberts we went further by saying
that Crespo could not have foreclosed said power or authority of the Secretary of Justice "without doing
violence to, or repealing, the last paragraph of Section 4, Rule 112 of the Rules of Court" which is quoted
above.
Indubitably then, there was on the part of the public prosecution, indecent haste in the filing of the
information for homicide, depriving the State and the offended parties of due process.
As to the second issue, we likewise hold that Judge Roura acted with grave abuse of discretion when, in
his order of 26 March l996, 66 he deferred resolution on the motion for a hold departure order until
"such time that all the accused who are out on bail are arraigned" and denied the motion to defer
proceedings for the reason that the "private prosecution has not shown any indication that [the] appeal
was given due course by the Secretary of Justice." Neither rhyme nor reason or even logic, supports the
ground for the deferment of the first motion. Precisely, immediate action thereon was called for as the
accused were out on bail and, perforce, had all the opportunity to leave the country if they wanted to.
To hold that arraignment is a prerequisite to the issuance of a hold departure order could obviously
defeat the purpose of said order. As to the second motion, Judge Roura was fully aware of the pendency
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of petitioner's appeal with the DOJ, which was filed as early as 23 February 1996. In fact, he must have
taken that into consideration when he set arraignment of the accused only on 12 April 1996, and on that
date, after denying petitioners' motion to reconsider the denial of the motion to defer proceedings, he
further reset arraignment to 3 May 1996 and gave petitioners ten (10) days within which to file a
petition forcertiorari to question his denial of the motion to defer and of the order denying the
reconsideration. In any event, the better part of wisdom suggested that, at the very least, he should
have asked petitioners as regards the status of the appeal or warned them that if the DOJ would not
decide the appeal within a certain period, then arraignment would proceed.
Petitioners did in fact file the petition with the Court of Appeals on 19 April 1996 and, at the same time,
moved to inhibit Judge Roura. These twin moves prompted Judge Roura to "voluntarily" inhibit himself
from the case on 29 April 1996 67 and to transfer the case to the branch presided by public respondent
Judge Villon. The latter received the records of the case on 30 April 1996. From that time on, however,
the offended parties did not receive any better deal. Acting with deliberate dispatch, Judge Villon issued
an order on 3 May 1996 setting arraignment of the accused on 20 May 1996. If Judge Villon only
perused the record of the case with due diligence, as should be done by anyone who has just taken over
a new case, he could not have helped but notice: (a) the motion to defer further proceedings; (2) the
order of Judge Roura giving petitioners ten days within which to file a petition with the Court of Appeals;
(3) the fact of the filling of such petition in CA-G.R. SP No. 40393; (4) the resolution of the Court of
Appeals directing respondents to comment on the petition and show cause why the application for a
writ of preliminary injunction should not be granted and deferring resolution of the application for a
temporary restraining order until after the required comment was filed, which indicated a prima
facieshowing of merit; (5) the motion to inhibit Judge Roura precisely because of his prejudgment that
the crime committed was merely homicide; (6) Judge Roura's subsequent inhibition; (7) various pieces
of documentary evidence submitted by petitioners on 30 April 1996 supporting a charge of murder, not
homicide; and (8) most importantly , the pending appeal with the DOJ.
All the foregoing demanded from any impartial mind, especially that of Judge Villon, a cautious attitude
as these were unmistakable indicia of the probability of a miscarriage of justice should arraignment be
precipitately held. However, Judge Villon cursorily ignored all this. While it may be true that he was not
bound to await the DOJ's resolution of the appeal, as he had, procedurally speaking, complete control
over the case and any disposition thereof rested on his sound discretion, 68 his judicial instinct should
have led him to peruse the documents submitted on 30 April 1996 and to initially determine, for his own
enlightenment with serving the ends of justice as the ultimate goal, if indeed murder was the offense
committed; or, he could have directed the private prosecutor to secure a resolution on the appeal
within a specified time. Given the totality of circumstances, Judge Villon should have heeded our
statement inMarcelo 69 that prudence, if not wisdom, or at least, respect for the authority of the
prosecution agency, dictated that he should have waited for the resolution of the appeal then pending
before the DOJ. All told, Judge Villon should not have merely acquiesced to the findings of the public
prosecutor.
We do not then hesitate to rule that Judge Villon committed grave abuse of discretion in rushing the
arraignment of the YABUTs on the assailed information for homicide. Again, the State and the offended
parties were deprived of due process.
Up to the level then of Judge Villon, two pillars of the criminal justice system failed in this case to
function in a manner consistent with the principle of accountability inherent in the public trust character
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of a public office. Judges Roura and Villon and prosecutors Alfonso-Flores and Datu need be reminded
that it is in the public interest that every crime should be punished 70 and judges and prosecutors play a
crucial role in this regard for theirs is the delicate duty to see justice done, i.e., not to allow the guilty to
escape nor the innocent to
suffer. 71
Prosecutors must never forget that, in the language of Suarez v. Platon, 72 they are the representatives
not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is
as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is
not that it shall win every case but that justice be done. As such, they are in a peculiar and every definite
sense the servants of the law, whose two-fold aim is that guilt shall not escape or innocence suffer.
Prosecutors are charged with the defense of the community aggrieved by a crime, and are expected to
prosecute the public action with such zeal and vigor as if they were the ones personally aggrieved, but at
all times cautious that they refrain from improper methods designed to secure a wrongful
conviction. 73 With them lies the duty to lay before the court the pertinent facts at the judge's disposal
with strict attention to punctilios, thereby clarifying contradictions and sealing all gaps in the evidence,
with a view to erasing all doubt from the court's mind as to the accused's innocence or guilt.
The judge, on the other hand, "should always be imbued with a high sense of duty and responsibility in
the discharge of his obligation to promptly and properly administer justice." 74 He must view himself as a
priest, for the administration of justice is akin to a religious crusade. Thus, exerting the same devotion as
a priest "in the performance of the most sacred ceremonies of religious liturgy," the judge must render
service with impartiality commensurate with the public trust and confidence reposed in him. 75 Although
the determination of a criminal case before a judge lies within his exclusive jurisdiction and
competence, 76 his discretion is not unfettered, but rather must be exercised within reasonable
confines. 77 The judge's action must not impair the substantial rights of the accused, nor the right of the
State and offended party to due process of law. 78
Indeed, for justice to prevail, the scales must balance; justice is not to be dispensed for the accused
alone. The interests of society and the offended parties which have been wronged must be equally
considered. Verily, a verdict of conviction is not necessarily a denial of justice; and an acquittal is not
necessarily a triumph of justice, for, to the society offended and the party wronged, it could also mean
injustice. 79 Justice then must be rendered even-handedly to both the accused, on one hand, and the
State and offended party, on the other.
In this case, the abuse of discretion on the part of the public prosecution and Judges Roura and Villon
was gross, grave and palpable, denying, the State and the offended parties their day in court, or in a
constitutional sense,due process. As to said judges, such amounted to lack or excess of jurisdiction, or
that their court was ousted of the jurisdiction in respect thereto, thereby nullifying as having been done
without jurisdiction, the denial of the motion to defer further hearings, the denial of the motion to
reconsider such denial, the arraignment of the YABUTs and their plea of not guilty.
These lapses by both the judges and prosecutors concerned cannot be taken lightly. We must remedy
the situation before the onset of any irreversible effects. We thus have no other recourse, for as Chief
Justice Claudio Teehankee pronounced in Galman v. Sandiganbayan: 80

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The Supreme Court cannot permit such a sham trial and verdict and travesty of justice
to stand unrectified. The courts of the land under its aegis are courts of
law and justice and equity. They would have no reason to exist if they were allowed to
be used as mere tools of injustice, deception and duplicity to subvert and suppress the
truth, instead of repositories of judicial power whose judges are sworn and committed
to render impartial justice to all alike who seek the enforcement or protection of a right
or the prevention of redress of a wrong, without fear or favor and removed from the
pressures of politics and prejudice.
We remind all members of the pillars of the criminal justice system that theirs is not a mere
ministerial task to process each accused in and out of prison, but a noble duty to preserve our
democratic society under a rule of law.
Anent the third issue, it was certainly grave error for the DOJ to reconsider its 7 June 1996 resolution,
holding that murder was committed and directing the Provincial Prosecutor to accordingly amend the
information, solely on the basis of the information that the YABUTs had already been arraigned. In so
doing, the DOJ relinquished its power of control and supervision over the Provincial Prosecutor and the
Assistant Provincial Prosecutors of Pampanga; and meekly surrendered to the latter's inappropriate
conductor even hostile attitude, which amounted to neglect of duty or conduct prejudicial to the best
interest of the service, as well as to the undue haste of Judge Roura and Villon in respect of the
arraignment of the YABUTs. The sins of omission or commission of said prosecutors and judges resulted,
in light of the finding of the DOJ that the crime committed was murder, in unwarranted benefit to the
YABUTs and gross prejudice to the State and the offended parties. The DOJ should have courageously
exercised its power of control by taking bolder steps to rectify the shocking "mistakes" so far committed
and, in the final analysis, to prevent further injustice and fully serve the ends of justice. The DOJ could
have, even if belatedly, joined cause with petitioners to set aside arraignment. Further, in the exercise of
its disciplinary powers over its personnel, the DOJ could have directed the public prosecutors concerned
to show cause why no disciplinary action should be taken against them for neglect of duty or conduct
prejudicial to the best interest of the service in not, inter alia, even asking the trial court to defer
arraignment in view of the pendency of the appeal, informing the DOJ, from time to time, of the status
of the case, and, insofar as prosecutor Datu was concerned, in disallowing the private prosecutor from
further participating in the case.
Finally, the DOJ should have further inquired into the vicissitudes of the case below to determine the
regularity of arraignment, considering that the appeal was received by the DOJ as early as 23 February
1996.
We then rule that the equally hasty motu proprio "reconsideration" of the 7 June 1996 resolution of the
DOJ was attended with grave abuse of discretion.
It is settled that when the State is deprived of due process in a criminal case by reason of grave abuse of
discretion on the part of the trial court, the acquittal of the accused 81 or the dismissal of the case 82 is
void, hence double jeopardy cannot be invoked by the accused. If this is so in those cases, so must it be
where the arraignment and plea of not guilty are void, as in this case as above discussed.
WHEREFORE, the petition is GRANTED. The orders of Judge Reynaldo Roura of 26 March 1996 denying
the Motion to Defer Proceeding and of 12 April 1996 denying the motion to reconsider the denial of said
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Motion to Defer Proceedings, and the orders of respondent Judge Sesinando Villon of 3 May 1996
resetting the arraignment to 20 May 1998 and of 25 October 1996 denying the Motion to Set Aside
Arraignment in Criminal Case No. 96-1667(M) are declared VOID and SET ASIDE. The arraignment of
private respondents Mayor Santiago Yabut, Servillano Yabut and Martin Yabut and their separate pleas
of not guilty are likewise declared VOID and SET ASIDE. Furthermore, the order of public respondent
Secretary of Justice of 1 July 1996 is SET ASIDE and his order of 7 June 1996 REINSTATED.
The Office of the Provincial Prosecutor of Pampanga is DIRECTED to comply with the order (letter) of the
Secretary of Justice of 7 June 1996 by forthwith filing with the trial court the amended information for
murder. Thereafter the trial court shall proceed in said case with all reasonable dispatch.
No pronouncement as to costs.
SO ORDERED.
Bellosillo, Vitug, Panganiban and Quisumbing, JJ., concur.
Footnotes
1 Rollo, 90.
2 Id., 51-52.
3 Original Record (OR), 9.
4 Id., 19-21.
5 OR, 20-21.
6 Id., 5.
7 OR, 6.
8 Id., 7.
9 Id., 9-18.
10 OR, 36-50.
11 OR, 4.
12 Id., 1.
13 Id., 33.
14 OR, 52-53.
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15 Id., 54-56.
16 Id., 59.
17 Id., 62.
18 Id., 63-71.
19 151 SCRA 462 [1987].
20 176 SCRA 287 [1989].
21 OR, 78-83.
22 Id., 92-97.
23 Id., 100.
24 Id., 118.
25 OR, 139-141.
26 Id., 129-136.
27 Id., 142-143.
28 Id., 146-149.
29 Id., 210.
30 Id., 150-151.
31 OR, 224.
32 Id., 213-215.
33 Id., 218.
34 Id., 227-228.
35 OR, 231-237.
36 Id., 244.
37 Id., 247-252.
38 OR, 250-251.
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39 Id., 253-255.
40 The YABUTs must have had in mind DOJ Department Order (D.O.) No. 223 dated 30
June 1993 and entitled "1993 Revised Rules on Appeals from Resolutions in Preliminary
Investigations/Reinvestigations." Sec. 4 thereof states:
[N]o 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 dismissedmotu proprio by the Secretary of
Justice.
41 OR, 256-257.
42 Id., 260-265.
43 Id., 266-269.
44 OR, 270-273.
45 Id., 274-275.
46 OR, 300-301.
47 Id., 302.
48 Id., 306-307.
49 Id., 310-320.
50 Supra note 43.
51 OR, 346-362.
52 Id., 335-337.
53 Id., 339.
54 Id., 368-373.
55 OR, 376-379.
56 Id., 380.
57 Id., 382-385.
58 Id., 386.
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59 Id., 390.
60 254 SCRA 307 [1996].
61 278 SCRA 656, 676-678 [1997].
62 The 1987 Revised Administrative Code, Executive Order No. 292.
63 235 SCRA 39, 48-49 [1994].
64 Supra note 19.
65 Supra note 60.
66 OR, 100.
67 OR, 146-149.
68 Crespo v. Mogul, supra note 19 at 471.
69 Supra note 63.
70 United States v. Montaner, 8 Phil. 620, 629 [1907].
71 United States v. Mamintud, 6 Phil. 374, 376 [1906]; Suarez v. Platon, 69 Phil. 556, 565
[1940]; People v. Esquivel, 82 Phil. 453, 459 [1948]; Crespo v. Mogul, supra note 19;
Allado v. Diokno, 232 SCRA 192, 206, 210 [1994].
72 Supra note 71.
73 Supra note 71.
74 Agcaoili v. Ramos, 229 SCRA 705, 711 [1994].
75 People v. Bedia, 83 Phil. 909, 916 [1949].
76 Crespo v. Mogul, supra note 19 at 471.
77 See, e.g., Herras Teehankee v. Director of Prisons, 76 Phil. 756, 773 [1946].
78 Crespo v. Mogul, supra note 19 at 170, citing People v. Zabala, 58 OG 5028 and
Galman v. Sandiganbayan, 144 SCRA 43, 101 [1986].
79 People v. Court of Appeals, 101 SCRA 450, 467 [1980].
80 Supra note 78 at 86.
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81 People v. Balicasan, 17 SCRA 1119, 1123 [1966]; People v. Court of
Appeals, supra note 79; Galman v. Sandiganbayan, supra note 78 at 89.
82 People v. Cabero, 61 Phil. 121, 127 [1934]; People v. Gomez, 20 SCRA 293, 298
[1967]; People v. Catolico, 38 SCRA 389, 404 [1971]; Serino v. Zosa, 40 SCRA 433, 438440 [1971]; People v. Navarro, 63 SCRA 264, 273 [1975]; Silvestre v. Military Commission
No. 21, 82 SCRA 10, 18-19 [1978]; People v. Bocar, 138 SCRA 166, 170-171 [1985];
People v. Castaeda, 165 SCRA 327, 343 [1988]; Portugal v. Reantaso, 167 SCRA 712,
720 [1988]; Aquino v. Sison, 179 SCRA 648, 651-652 [1989]; Gorion v. Regional Trial
Court of Cebu, Br. 17, 213 SCRA 138, 148 [1992].

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G.R. NO. 72301 PONSICA VS IGNALAGA

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 72301

July 31, 1987

ROLANDO PONSICA, ROGELIO ARNAIZ, FR. NICO HOFSTEDE, BERNARDINO PATIGAS,

ZACHEUS ROJO, GODOFREDO RETIRACTON, LORETO BERING, ROGELIO ARTAJO, JOVITO
MARATAS, CARLOS ALLEONES, MILO PICCIO, ADOLFO MAGUATE, GONZALO CASTILLA,
RONNIE DESUYO, FEDERICO AYO, ROLANDO BERNABE, MARIANO REYES, DANIEL
GEMPESALA, WILFREDO SARATOBIAS, MILDRED SAGUIRE, CRESENCIO ENCARGUEZ, JOHN
BUSTAMANTE, JOHN DOE and RICHARD DOE, petitioners,
vs.
HON. EMILIO M. IGNALAGA, Presiding Judge, Municipal Trial Court of Escalante, Negros
Occidental, MAYOR BRAULIO LUMAYNO, CAPT. MODESTO SAN-SON, CAPT. RAFAEL
JUGAN, respondents.
NARVASA, J.:
The chief issue raised by the petitioners in this case is whether or not Section 143 of the Local
Government Code1 granting power to the municipal mayor to conduct preliminary investigations
and order the arrest of the accused, was repealed by the 1985 Rules on Criminal Procedure
promulgated by this Court; and is, in addition, unconstitutional as vesting the power to conduct
preliminary investigations in an official who cannot be deemed a "neutral and detached magistrate"
within the contemplation of Section 3, Article IV of the 1973 Constitution. The issue is hereby
resolved adversely to the petitioners, with the stressed qualification that the mayor's power to
order arrest ceased to exist as of February 2, 1987 when the new Constitution was ratified by the
Filipino people, and that, in any event, the investigation actually conducted by respondent mayor in
the case at bar was fatally defective.
Shortly after noon on September 20, 1985, an attempt was made by firemen and soldiers to
disperse a crowd of demonstrators massed in front of the Municipal Building of Escalante, Negros
Occidental, with the use first, of water spewed from fire hoses, and later, tear gas. Eventually there
was gunfire. Within moments, rallyists lay dead on and by the National Road. The fatalities
numbered fifteen (15), according to the military officers; twenty-nine (29), according to the
demonstrators.
In the afternoon of that day, Escalante Town Mayor Braulio Lumayno, in view of the absence of the
Municipal Circuit Court Judge (Emilio Ignalaga), took cognizance of a complaint filed by the Military
Station Commander charging some of the rallyists with the felony of inciting to sedition, and after
avowedly conducting an investigation of the witnesses presented by the complainant, issued an
order for the arrest of certain of the demonstrators. His order reads as follows:

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It appearing that the Presiding Municipal Circuit Court Judge, Hon. Emilio M. Ignalaga, is on
official leave of absence and, in the interest of justice, the undersigned has to urgently act on
the complaint filed by the Station Commander, against the above-named accused for
"INCITING TO SEDITION" and, on the basis of the evidence submitted after a searching
question and answer were conducted and, being satisfied that said crime has been
committed, in order not to frustrate the ends of justice, it is necessary that the above-named
accused be placed under custody. Let therefore, a warrant of arrest be issued for said abovenamed accused.
Bail recommended: P12,000.00. 2
In the record of the Court a quo appear the following inter alia:
1) Complaint for "Inciting to Sedition" (RPC 142, as and by PD 183 and PD 1974), signed by
a Capt. Jugan, and sworn to before Mayor Lumayno on Sept. 20, 1985, bearing the stamped
notation of filing with the MTC: "9/24/85, 4:00 PM:" 3
2) 2-page Affidavit of Capt. Sanson, dated, and sworn to before Actg.. City Fiscal Abros
(Cadiz City) on Sept. 20, 1985; 4
3) 3-page document, "Searching Questions and Answers" signed by Capt. Sanson, dated. and
sworn to before Mayor Lumayno on, September 20, 1985; 5
4) 3-page sworn statement of Godofredo Hoyo-A y Jayme, General Manager of the
Balintawak-Escalante Water District; 6
5) Affidavit of Leopoldo Villalon; 7
6) Affidavit of Elpidio Carbajosa; 8 and
7) Affidavit of Eduardo Flores. 9
The gist of the testimony of Capt. Sanson and the other affiants is that on September 20, 1985, the
demonstrators, numbering "about 1,000, " had blockaded the main highway in front of the
Escalante Municipal Building, by massing themselves on the road as well as by piling stones,
coconut trunks and pieces of wood in the middle of the highway. They were also "shouting
invectives, seditious and scurrilous words against the government." Negotiations with Ponsica,
Chairman of the Escalante Chapter of "BAYAN" (Bagong Alyansang Makabayan), to have the road
cleared having been unavailing, firemen on firetrucks began to train a "torrent of water" from their
fire hoses on the demonstrators. The rallyists retaliated by hurling stones at the firemen. One of
them "approached the security of the firetruck and stabbed him." Others climbed aboard the trucks
and tried to grab the firehoses and firearms of the officers. At this point, on Capt. Sanson's orders,
his "back-up teams" of soldiers commenced to throw tear gas at the crowd. One of the
demonstrators picked up a tear gas canister and hurled it back at the soldiers. At the same time
gunfire from "different assorted firearms" emanated from the rallyists; and some of the shots hit
the blinker of a firetruck and the headlight of another. The soldiers shot back. This exchange of
gunfire resulted in "fourteen (14) demonstrators killed on the spot. " Recovered at the scene were a
rifle; a U.S. 45 cal. pistol; 2 "homemade" pistols; 14 steel arrows and 4 assorted slings; 30 assorted
knives; a "pogakhang" with 2 live cartridges; 2 grenades; and several empty shells of different
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caliber. Hours later, another corpse, Identified as that of a demonstrator, too, was brought to the PC
Headquarters.
The petitioners however give a different version of the facts. What happened, according to them,
was that at 9 o'clock in the morning on that day, a group of demonstrators, "composed mostly of
laid-off sugar field workers," gathered in front of Escalante Municipal Hall "in the exercise of their
constitutionally guaranteed right to freedom of expression and to assemble peacefully to petition
the government for redress of grievances."10 About an hour afterwards, fire trucks arrived one after
another, as well as jeeploads of soldiers and CHDF members, in full combat gear, Shortly after noon,
after "going thru the motions of negotiating with the demonstrators," the military officers ordered
the crowd to disperse; but without warning, fire hoses were trained on and sprayed water at the
demonstrators. When the rallyists did not budge, tear gas canisters were thrown at them. A
demonstrator picked up a canister and threw it at an "empty space in the plaza" The soldier and
CHDF members thereupon fired indiscriminately at the crowd, killing 29 and injuring at least 30
persons.11
After the Mayor had referred the case to Municipal Trial Court Judge Ignalaga on September 24,
1985,12 an "URGENT MOTION TO QUASH WARRANT OF ARREST" was filed on September 26, 1985
by petitioners' counsel on the ground that a mayor no longer has authority to conduct preliminary
investigations or issue warrants of arrest that authority having been "withheld in the 1985 New
Rules on Criminal Procedure."13 This was opposed by the Station Commander14 who invoked
Section 143 of the Local Government Code providing that "(i)n case of temporary absence of the
Judge assigned to the municipality, the mayor may conduct the preliminary examination in criminal
cases when, in his opinion the investigation cannot be delayed without prejudice to the interest of
justice." A reply was filed by the petitioners after their receipt of the opposition "only last October
8, 1985."15 They contended that the "power of the municipal mayor to conduct preliminary
investigation and issue a warrant of arrest under the 1964 Revised Rules of Court** (had been)
impliedly repealed by the 1985 New Rules on Criminal Procedure;" that "the 1985 New Rules on
Criminal Procedure being a special law, controls over provisions of the Local Government Code (BP
337, 1983), which is a general law;" and in any case, "subject t warrants of arrest should be
reviewed and revoked as done without observance of legal requisites."
By Resolution dated Oct. 11, 1985,16 the Judge confirmed the mayor's arrest order. He opined that
in the absence of the judge, the mayor still has authority to conduct preliminary investigations and
issue arrest warrants, since Rule 112, Sec. 2 (d), of the 1985 Rules, includes as among those
authorized to conduct preliminary investigations, "Such other officers as may be authorized by
law;" and the Local G government Code of 1983, Section 143, grants a town mayor authority to
conduct preliminary examinations in case of the temporary absence of the judge when such
investigation cannot be delayed without prejudice to the interest of justice. The Judge declared that
in the case at bar, the mayor had conducted the examination personally, and having in the exercise
of his discretion found probable cause, issued the warrants of arrest in question; and conceding
arguendo irregularity in that the preliminary examination was conducted without according the
parties the assistance of lawyers (contrary to par. 2, Sec. 143, Chap. 3, Title 2, Book 11, Local
Government Code), this does not render the proceedings void because at any rate, the mayor had
duly observed the uniform procedure under PD 91 (citing: People v. Paran, 52 Phil. 712; Hashim v.
Boncan, 71 Phil. 216; Lino v. Fugoso, 77 Phil. 933).

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It is Mayor Lumayno's order for the petitioners' arrest of September 20, 1985, and Jude Ignalaga's
Order of October 11, 1985 "validating that order of arrest" that the petitioners would have this
Court nullify and perpetually enjoin.17
In their petition for certiorari and prohibition filed on October 15, 1985, and their Memorandum of
January 21, 1986,18 they assert that:
1) while Section 3,Rule 112 of the l964 Rules of Court,empowers the municipal mayor, "in
case of temporary absence of both the municipal and the auxiliary municipal judges from
the municipality, town or place wherein they exercise their jurisdiction, to make the
preliminary examination in criminal cases when such examination cannot be delayed
without prejudice to the interest of justice," that power has been removed from him by the
1985 New Rules on Criminal Procedure which "do not mention the Municipal Mayor as
among the officers authorized to conduct preliminary investigation (Section 2, Rule 112),
much less to issue an order of arrest (Section 6, Ibid.)19
2) Section 143 of BP Blg. 337 (Local Government Code) under which the order of arrest
in question is presumably made to rest-cannot withstand the "constitutional test" of Section
3, Article IV,20 which safeguards the right against unreasonable searches and seizures, and
requires the interposition of a "judge, or such other responsible officer as may be
authorized by law," meaning "a neutral and detached magistrate competent to determine
probable cause (Shadwick v. City of Tampa, 40 LW 4758; Castillo v. Jias, 62 SCRA 124; Ang
Tibay v. CIR, 69 Phil. 635; Zambales Chromite, etc. v. C.A., 934 SCRA 2617);" and since a
mayor is obviously not such a magistrate (U.S. v. Chadwick, 433 U.S. 197), the orders of
arrest at bar are constitutionally infirm;21 moreover, said Section 143 of the Local
Government Code is "merely a rule of procedure** (and is thus) deemed to have been
superseded by the New Rules of Criminal Procedure;22
3) the Mayor's examination "falls short of the requirements of "searching questions and
answers;" the statements of the witnesses supposedly interrogated by the mayor, are either
merely conclusions of law or sterile as regards seditious utterances, hence, probable cause
was non-existent23 and
4) Article 142 of the Revised Penal Code, as amended-under which the petitioners are
charged is based on the US Sedition Act of 1978, which has been declared by the US
Supreme Court as "repugnant to the constitutional guarantee of freedom of speech and
expression (New York Times Co. v. Sullivan, 376 U.S. 254);" hence, said Article 142 is also
fatally flawed and therefore, the warrant. of arrest in question was in effect issued for a
"crime which in the context of the constitutionally guaranteed freedom of speech and
expression does not exist."24
In his comment filed with this Court,25 Judge Ignalaga argues that
1) The validity of the preliminary examination on the basis of which the arrest warrants
were issued, may not be raised for the first time in the Supreme Court, but should first be
ventilated before the RTC having cognizance of the crime.26 In any case, upon the
considerations set out in his resolution of October 11, 1985, the preliminary examination in
question is valid.27

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2) The petitioners raise factual issues which are best left for determination by the RTC, the
Supreme Court not being a trier of facts.28
3) The Mayor in fact followed the procedure in the constitution prior to issuing the arrest
warrants.29
4) The constitutionality of PD 1974 should be assailed by separate petition.30
The Solicitor General at the time, Estelito Mendoza, also filed a comment on December 6,
1985.31 The comment addressed itself only to the issue of "the validity of the law authorizing
municipal mayors to issue warrants of arrest and the law punishing inciting to sedition," in view of
the fact that the respondents had presented their own separate comments on the petition.32 The
comment points out that:
1) Section 3, Article IV, of the 1973 Constitution, which mentions a "judge, or such other
responsible officer as may be authorized by law" as vested with competence to conduct
preliminary investigations, is an innovation. In implementation thereof, BP Blg. 337 was
enacted on February 10, 1983, empowering mayors to conduct preliminary investigations
(Sec. 143). This is a recognition of the truism that the determination of probable cause is but
a quasi judicial function Ocampo v. US, 58 LED 1231).33 Petitioners' American authorities
are not applicable: the mayor is the highest official in the municipality; he exercises only
general supervision over the police but is not directly involved in police work; the old rules
precisely expressed a recognition of the capability of i mayors to determine probable cause,
and the omission of mayors in the 1985 Rules simply means that the determination of
officers who may be authorized to conduct preliminary investigations was deemed best left
to legislation.34
2) The Philippine sedition law is not akin to the US Sedition Law; in any event our own
sedition law has passed the test of constitutionality (Espuelas v. People, 90 Phil. 524).35
Solicitor General Sedfrey A. Ordonez subsequently declared that he "stands by the constitutionality
of the statutes the petitioners question and, therefore, sustains the position taken by his
predecessor in office;"36 this, in response to this Court's resolution dated May 15, 1986, requiring
the parties to state whether supervening events had transpired materially affecting the case.37
It is clear from the outset that the issue before this Court does not involved the adjudgment of the
guilt or innocence of the soldiers in the tragic and regrettable killings in front of the Escalante Town
Hall in the early afternoon of that day, the twentieth of September, 1985, an event that caused a
great outcry of lamentation and condemnation throughout the land. This is a matter that should be
and is in fact now subject of a separate criminal proceeding. Neither is the propriety of the victims'
exercise of their constitutional rights of free speech and free assembly for redress of grievances in
the premises at issue here. The basic question before the Court is divorced of the drama and the
passion of those issues; it deals mainly with the dry, unexciting, but nonetheless important matter
of whether or not the municipal mayor has the power to conduct preliminary investigations in the
light of the 1985 amendments of the rules governing criminal procedure in the Rules of Court. The
answer to the question entails a re-examination and analysis of the relevant legal provisions.
The 1964 Rules of Court explicitly gave the mayor authority to conduct preliminary investigations.

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SEC. 3. Preliminary examination by the municipal mayor. In case of temporary absence of
both the municipal and the auxiliary municipal judges from the municipality, town, or place
wherein they exercise their jurisdiction, the municipal mayor shall make the preliminary
examination in criminal cases when such examination cannot be delayed without prejudice to
the interest of justice. He shall make a report of any preliminary examination so made to the
municipal or to the auxiliary municipal judge immediately upon the return of one or the
other. He shall have authority in such cases to order the arrest of the defendant and to grant
him bail in the manner and cases provided for in Rule 114. 38
The Rules of 1940 contained an Identical provision, in Section 3, Rule 108.
The 1985 Rules on Criminal Procedure did not reproduce this provision, and did not include the
mayor in the enumeration of the officers authorized to conduct preliminary investigations, those
listed being judges of municipal trial courts and municipal circuit trial courts; city or provincial
fiscals and their assistants; national and regional state prosecutors; and "such other officers as may
be authorized by law." 39
SEC. 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
(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. (n). 40
It is of course the deletion in the 1985 rules of reference to the municipal mayor as among those
authorized to conduct preliminary investigations and order arrests upon which the petitioners
chiefly rely as basis for their impugnation of Mayor Lumayno's preliminary investigation and order
of arrest based thereon.
The matter is however treated of not solely by the Rules of Court but also by the 1973 Constitution,
Section 3, Article IV whereof reads:
SEC. 3. 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
not be violated, and no search warrant or warrant of arrest shall issue except upon probable
cause to be determined by the judge, or such other responsible officer as may be authorized
by law, after examination under oath or affirmation of the complainant and the witnesses he
may produce, and particularly describing the place to be searched, and the persons or
things to be seized. 41
Parenthetically, it may be noted that Section 3, Rule III of the 1935 Constitution mentioned only
"the judge" as having power to determine probable cause and issue search and arrest warrants.
The matter is further dealt with in Section 143 of Batas Pambansa Bilang 337, otherwise known as
the Local Government Code, which took effect on February 10, 1983. This section evidently deems
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the mayor a "responsible officer" in contemplation of the cited constitutional provision, and
explicitly authorizes him to conduct preliminary examination in criminal cases and order the arrest
of the accused upon probable cause.
SEC. 143. Authority of the Mayor to Conduct Preliminary Examination.
(1) In case of temporary absence of the judge assigned to the municipalities the mayor may
conduct the preliminary examination in criminal cases when, in his opinion the investigation
cannot be delayed without prejudice to the interest of justice.
(2) No examination shall be conducted unless the parties are assisted by lawyers.
(3) In cases where he may conduct preliminary examination, the mayor shall upon probable
cause after examination of witnesses, have authority order the arrest of the accused and to
grant him bail in the manner and cases provided in the Revised Rules of Court and order his
provisional release.
(4) The mayor shall make a report of any preliminary examination so made immediately
after the return of the judge assigned in the area, or upon the designation of his
replacement. 42
The 1973 Constitution plainly and unmistakably grants to the legislature the power to determine
which "responsible officers, " aside from judges, may issue warrants of arrest after examination
under oath or affirmation of the complainant and the witnesses he may produce. And as plainly and
unmistakably, the legislature, the Batas Pambansa, has in the Local Government Code made the
determination that the mayor is such a "responsible officer "and has in consequence authorized him
to conduct preliminary investigations in criminal cases and order the arrest of the accused upon a
finding of probable cause.
The first issue raised by the petitioners that in September ,1985 the mayor no longer had power
to conduct preliminary investigations and issue arrest warrants43 must therefore be resolved
against them. The argument that Section 143 of the Local Government Code is just "a rule of
procedure merely having incorporated Rule 112, Section 2 of the old rules of Criminal Procedure,"
and should therefore be deemed "superseded by the New Rules of Criminal Procedure pursuant to
the power of this ** Court to promulgate rules of procedure (Article X, Section 5 151, Constitution
**)"44 cannot be sustained. However superior the Supreme Court may be to the other branches of
government in the realm of adjudication, its power to ordain rules of court was at the time inferior
to the lawmaking power of the legislature.45 It is true that the 1935 Constitution repealed all
procedural laws then in force "as statutes" and declared them to be "rules of court;" but this was
only so that they could be subject to repeal or modification by the Supreme Court, which was given
the power to promulgate rules of procedure,46 and has since been exercising such power by
promulgating the Rules of Court of 1940 and of 1964, and the 1985 Rules on Criminal Procedure,
etc. But the 1935 and 1973 Constitutions explicitly conferred on the legislature the power to repeal,
alter or supplement those rules of court, although it would appear that that power is no longer
granted to it by the 1987 Charter.47
Now, the conditions under which the mayor could conduct preliminary investigations are also
clearly indicated by the law, to wit:

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1) in case of the temporary absence of the judge assigned to the municipality; and
2) in his (the mayor's) opinion, the investigation cannot be delayed without prejudice to the
interests of justice.
On these occasions, the mayor may order the arrest of the accused upon a finding of probable cause
after searching examination of the complainant and the witnesses the latter may present.
In the case at bar, there is no showing that these conditions have not been met. Indeed, quite apart
from the presumption that official duty has been regularly performed.48 and the affirmative
statements of respondent official that on that fateful 20th day of September, 1985, Judge Ignalaga
was in Manila"49 on official leave or absence,"50 the petitioners have not put the fulfillment of those
conditions at issue at all, or the matter of whether or not the accused were "assisted by lawyers" in
the course of the investigation.51
The petitioners also challenge the constitutionality of Section 143 of the Local Government Code, it
being claimed that the mayor has been thereby authorized to conduct pre investigations and issue
warrants of arrest, although he can not be deemed a "neutral and detached magistrate" within the
contemplation of Section 3, Article IV of the 1973 Constitution.52
The competence of the Batasang Pambansa to decide and declare by statute which "responsible
officers," aside from judges, should be entrusted with the authority to conduct preliminary
investigations and issue arrest warrants cannot be doubted in view of the clear language of the
Constitution.53 And the determination by the Batasan that a municipal mayor is one such
"responsible officer" who may properly be entrusted with the function of conducting preliminary
investigations and ordering arrests of suspects upon probable cause, can not be subject of judicial
review, absent any indication that the legislative proceedings leading to that statutory
determination are void on account of some grave cause. Certainly, the wisdom of the statute, or the
validity of the reasons underlying it, or the adequacy of the statistics, facts and circumstances
considered by the legislature in its enactment, are beyond the sphere of inquiry of the
courts54 The Batasan was apparently of the belief that a municipal mayor could be sufficiently
objective and impartial as to be relied upon to conduct preliminary investigations and issue orders
of arrest in the exceptional situation when the judge assigned in the municipality was absent. The
petitioners disagree. They contend that the mayor cannot in the very nature of things be "neutral
and detached." The disagreement, and the fact that plausible reasons may be adduced by one side
or the other on the proposition does not make the question a justiciable one. The theory advocated
by the petitioners that the mayor's "deep involvement in law enforcement functions is likely to
color his judgment as a trier of probable cause,"55 does not induce persuasion. In the first place the
premise cannot be conceded. While it is true that the mayors do "exercise general supervision over
units and elements of the INP stationed or assigned in their respective jurisdictions," they are not
themselves directly involved in police work and cannot in any sense be described, as the petitioners
do, as being deeply involved in law enforcement functions. And even if that "deep involvement" be
conceded, it does not follow that this would necessarily preclude their assuming "the cold
neutrality of an impartial judge" in conducting preliminary investigations of persons suspected of
crimes.
But it must be emphasized here and now that what has just been described is the state of the law as
it was in September, 1985. The law has since been alter. No longer does the mayor have at this time
the power to conduct preliminary investigations, much less issue orders of arrest. Section 143 of
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the Local Government Code, conferring this power on the mayor has been abrogated,
rendered functus officio by the 1987 Constitution which took effect on February 2, 1987, the date of
its ratification by the Filipino people. Section 2, Article III of the 1987 Constitution pertinently
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, and particularly describing the place to be searched and the
person or things to be seized. " The constitutional proscription has thereby been manifested that
thenceforth, the function of determining probable cause and issuing, on the basis thereof, warrants
of arrest or search warrants, may be validly exercised only by judges, this being evidenced by the
elimination in the present Constitution of the phrase, "such other responsible officer as may be
authorized by law" found in the counterpart provision of said 1973 Constitution,56 who, aside
from judges, might conduct preliminary investigations and issue warrants of arrest or search
warrants.
As the law now stands, the mayor may no longer conduct preliminary investigation, the authority to
do so being limited under Section 2, Rule 1 1 2 of the Rules of Court to (1) provincial or city fiscals
and their assistants; (2) judges of the Municipal Trial Courts and Municipal Circuit Trial Courts; (3)
national and regional state prosecutors; and (d) such other officers as may be authorized by
law.57 But only "the judge" may issue search and arrest warrants after due determination of probable
cause.58
The petitioners' assault, on the other hand, upon the constitutionality of Article 141 of the Revised
Penal Code, defining and penalizing the felony of inciting to sedition, upon the claim that it was
"borrowed" from the U.S. Sedition Act of 1798 which in turn has been struck down as inconsistent
with the First Amendment of the American Constitution,59 is repelled by the Solicitor General's
arguments.60
In the first place, ** our law on inciting to sedition is not akin to the US Sedition Act of 1798
which was imposed on the American colonies by their British ruler. With the success of the
American revolution, the 1798 Sedition Act naturally ceased to have effect as it would be
utterly incongrous to punish those who sought the overthrow of the British government in
America.
xxx

xxx

xxx

xxx

xxx

xxx

To annul our law on sedition is to give license to those who seek the application of lawless
methods in the advancement of their political views. Our constitution surely does not
contemplate this.
Finally, the petitioners postulate that in the determination of the existence of probable cause from
the constitutional aspect, it is required that: "(1) The judge (or) officer must examine the **
witnesses personally; (2) The examination must be under oath; and (3) The examination must be
reduced to writing in the form of searching questions and answers. (Marinas v. Siochio, 104 SCRA
403)."

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In the light of these principles they contend: firstly, that the mayor's questioning of the witnesses
was not "searching" enough; and secondly, that the witnesses' testimony does not establish prima
facie the commission of the felony of inciting to sedition.
The fact is that is shown by the record, questions about the material events were in truth
propounded by Mayor Lumayno to the chief witness. Capt. Sanson;61 and no proof to the contrary
has been submitted. The circumstance that the answers given by Capt. Sanson to the mayor's
questions are closely reflective of the contends of his affidavit should not come as a surprise and
cannot, without more, be taken as debilitating or nullifying the interrogation.
The petitioner's second point is much more substantial and is decisive of the controversy. The
petitioners are correct in their claim that Capt. Sanson's testimony62 does not in truth contain any
facts demonstrating the actuality of the crime of inciting to sedition, which is the crime for which
arrest warrants were issued by Mayor Lumayno. The facts recited by Capt. Sanson may perhaps
warrant a charge of traffic obstruction, or grave coercion, or malicious mischief, or illegal
possession of firearms or deadly weapons, or maybe, attempted murder or homicide. But it is
barren of facts to support an accusation of inciting to sedition.
The other evidence on record exhibits the same barreness.
Two witnesses, Godofredo Hoyo-A and Elpidio Carbajosa, advert in their affidavits63 to the shouting
of "seditious words," etc. Hoyo-A is quoted as deposing that "the demonstrators were already unruly
** (and kept) on shouting anti-government slogans, ** invectiues and seditious words against the
government,"64 that certain of the petitioners were Identified as being "against the government, ** and
using the (Mt. Carmel) School in doctrining (sic) the students against the government,"65 that
petitioner Rogelio Arnaiz had delivered a speech in which he had said, "Rumpagon ang dictatorial
na regimen ni Pres. Marcos, pamatukan ang NSL, ibagsak ang military kagwalaon ang CHDF, suklan
nato ang gobyerno," a woman speaker had said the same thing, and a third speaker, petitioner Daniel
Gempesala, also stated: Lumpagon and dictatorial na regimen ni Marcos, kag ibagsak ang
Gobyerno;"66 and they had elicited a response from the people there who had raised their right
hands and repeated the shouted "slogan."67 Carbajosa in his turn declared that the demonstrators **
were shouting for trouble and ready to make revolution with the use of arms."68
Another affiant, Eduardo Flores, stated that the demonstrators were unruly, "tumultuously shouting
seditious words against the government and shouting for revolution."69
The sworn statement of the only other witness, Leopoldo Villalon,70 is totally innocuous as far as
proving the elements of inciting to sedition is concerned.
The evidence can not justify the action taken by the respondent Mayor and Judge. The Court thus
declares as sorely inadequate and mortally defective the avowed evidentiary foundation for Mayor
Lumayno's finding of probable cause respecting the commission by the petitioners of the crime of
inciting to sedition. The affiants declarations in their sworn statements which might otherwise be
pertinent to the offense, are generalities, mere conclusions of their, not positive averments of
particular facts within their personal knowledge. 'They do not Identify the specific persons
supposed to have perpetrated the crime charged, except two. But even the Identification of these
two is of no moment. For except as regards Capt. Sanson, whose testimony, to repeat, is in any case
ineffectual to prove the precise offense ascribed to the petitioners, there had been no searching
interrogation by Mayor Lumayno of the witnesses as required by the Constitution. Hence, whatever
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credit could possibly have been accorded to the affidavit of Hoyo-A which ventures to quote the
exact words allegedly shouted by petitioners Arnaiz and Gempesala, and an unidentified woman
was thereby effectively foreclosed.
WHEREFORE, the writs of certiorari and prohibition are granted. The order of respondent Mayor
Lumayno issued on September 20, 1985 and the resolution promulgated by respondent Judge
Ignalaga on October 11, 1985 are annulled and set aside, and the respondents are perpetually
forbidden to enforce or in any way implement the orders for the arrest of any of the petitioners. No
costs.
Teehankee, C.J, Yap, Fernan, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla,
Bidin and Cortes, JJ., concur.
Sarmiento, J., took no part.

Footnotes
1

B.P. Blg. 337, eff. Feb. 10, 1983.

Rollo, p. 85.

Annex B, petition; rollo, p. 7 3.

Annex A, Id.; rollo, pp. 74-75.

Annex A-1, Id.; rollo, pp. 76-78.

Annex 1-id, "Comment to the Petition" of respondent Judge I Ignalaga rollo, pp. 79-8 1.

Annex l-e, Id.; rollo, p. 82.

Annex 1-f, Id.; rollo, p. 83.

Annex 1-g, Id.; rollo, p. 84.

10

Rollo, p. 4.

11

Id., pp. 4-5.

12

See footnote No. 2, and rollo, p. 8.

13

Rollo, p. 28.

14

Id., p. 92-93.

15

Id., pp. 95-98.

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16 Petitioners' Annex F. rollo, pp. 32-36; Respondent Judge An nex 7 rollo, pp. 99-103.
17

Rollo, pp. 2-3,16.

18

Id., pp. 2-17; 136-151.

19

Id., p. 9.

20

1973 Constitution.

21

Rollo, pp. 10-12,137-139.

22

Id., p. 140.

23

Id., pp. 140-143.

24

Id., pp. 13-15; 143-148.

Id., pp. 64-104 (filed Nov. 13, 1985); see also, the comment filed on November 13, 1985 by
the other respondents, Capt. Modesto Sanson, Capt. Rafael Jugan, and Mayor Braulio
Lumayno: rollo, pp. 59-62.
25

26

Id., P. 68.

27

Id., pp. 67-68.

28

Id., P. 68-70.

29

Id., p. 70.

30

Id.

31

Id., pp. 115-124.

32

Id., p. 115-116.

33

Id., pp. 116-118.

34

Id., pp. 118-122.

35

Id., pp. 122-124.

36

Compliance dated June 4, 1986: rollo, pp. 168-169.

37

Rollo, p. 172.

38

Rule 112, emphasis supplied.

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39 Sec. 2, Rule 112.
40

Rule 112. emphasis supplies

Emphasis supplied. As will be noted, the reference to "such other responsible officer as
may be authorized by law" is echoed in Sec. 2, Rule 112 earlier cited [footnote No. 38],
which mentions, as among those authorized to conduct preliminary investigation, "Such
Other officers as may be authorized by law."
41

42

Emphasis supplied.

43

SEE footnote No. 18.

44

Petitioners' Memorandum, p. 5; rollo, p. 140.

See Martin, The New Constitution, etc,, with Notes & Comments (1973 ed.), pp. 485-486;
Feria, Civil Procedure (1969 ed.), p. 3.
45

46

Sec. 13, ART. VIII, 1935 Constitution.

Sec. 13, ART. VIII, 1935 Constitution; Sec. 5 [5], ART. X, 1973 Constitution; Sec. 5 [51, ART.
VIII, 1987 Constitution; SEE, HOWEVER, SEC. 10, ART XVIII.
47

48

Sec. 5, m., Rule 131, Rules of Court.

49

See p. 2, respondent Judge's Comment, at p. 65 of the rollo.

50

See Annex C, petition, rollo, p. 26.

51

Sec. 143, (2), Local Government Code, supra see also, footnote No. 15.

52

Rollo, pp. 137-140; see footnotes No. 19-21.

53

See footnote No. 40 and related text.

U.S. v. Ten Yu, 24 Phil. 1; Morfe v. Mutuc, 22 SCRA 424; Province of Pangasinan v.
Secretary of Public Works and Communications, 30 SCRA 134; Sand v. Abad Santos
Educational Institution, 58 SCRA 33.
54

55

rollo, p. 138.

See footnote No. 41 and related text, supra, The phrase, ,such other responsible officer as
may be authorized by law. " is also found in Section 2, Rule 112 of the 1985 Rules on
Criminal Procedure, which enumerates the officers authorized to conduct preliminary
investigation. But the 1935 Constitution (Sec. 3, Art. III), as already earlier noted, also
restricted the power to "the judge.
56

57

Sec. 2, Rule 112, 1985 Rules on Crim. Procedure.

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58 Sec. 2, ART. 111, 1987 Constitution; see Sayo v. Chief of Police of Manila, 80 Phil. 859, 866867.
59

Rollo, pp. 143-148; see footnote No. 23.

60

Id., pp. 122-124.

61

Annex A-1, petition; rollo, pp. 21-23.

62

Annexes A and A-1, petition; Annexes 1-b and 1-c, Judge Ig nalaga's Comment.

63

Annexes 1-d and 1-f, respectively, of Judge Ignalaga's Comment.

64

Q & A No. 09, Annex 1-d.

65

Q & A No. 13, Id.

66

Q & A No. 16, Id.

67

Q & A No. 17, Id.

68

Last paragraph, Annex 1-f.

69

Annex 1-g; rollo, p. 84.

70

Annex 1-e; rollo, p. 82.

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G.R. NO. 164268 TORRES JR. VS AGUINALDO

Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 164268

June 28, 2005

ARTEMIO T. TORRES, JR., Petitioner,

vs.
SPS. DRS. EDGARDO AGUINALDO & NELIA T. TORRES-AGUINALDO, Respondents.
DECISION
YNARES-SANTIAGO, J.:
This petition for review on certiorari1 assails the decision2 of the Court of Appeals dated March 22,
2004 in CA-G.R. SP No. 77818, and its resolution3 dated June 28, 2004 denying reconsideration
thereof.
The facts are as follows:
Respondent-spouses Edgardo and Nelia Aguinaldo filed before the Office of the City Prosecutor
(OCP) of Manila,4 a complaint against petitioner Artemio T. Torres, Jr. (Torres) for falsification of
public document. They alleged that titles to their properties covered by Transfer Certificates of Title
Nos. T-93596, T-87764, and T-87765, were transferred without their knowledge and consent in the
name of Torres through a forged Deed of Sale5 dated July 21, 1979.
Torres denied the allegations of forgery and claimed that Aguinaldo sold the subject properties to
him6 as evidenced by the March 10, 1991 Deed of Absolute Sale.7
Finding probable cause, the OCP recommended the filing of an information for falsification of public
document against Torres,8 which was filed before the Metropolitan Trial Court of Manila (MTC),
Branch 8, on October 3, 2001.
Torres moved for reconsideration9 but was denied.10
On appeal,11 the Secretary of Justice reversed the findings of the investigating prosecutor and
ordered the withdrawal of the information.12 The motion for reconsideration filed by Aguinaldo
was denied.13
A Motion to Withdraw Information14 was filed which the MTC granted on June 11, 2003.15 It should
be noted that petitioner has not been arraigned.
Meanwhile, Aguinaldo filed before the Court of Appeals a petition for certiorari16 which was
granted in the assailed decision dated March 22, 2004.1avvphi1.net
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The dispositive portion of the assailed decision reads:
WHEREFORE, in view of the foregoing, the petition is GRANTED. The resolutions of the Secretary of
Justice dated November 12, 2002 and April 30, 2003 in IS No. 01B-05485 are REVERSED and SET
ASIDE. The April 30, 2001 Resolution of the City Prosecutor of Manila finding probable cause
against private respondent Artemio Torres, Jr. is REINSTATED. No costs.
SO ORDERED.17
Torres motion for reconsideration was denied,18 hence, the instant petition for review on
certiorari19 on the following grounds:
I.
WHETHER OR NOT THE ORDER OF THE MTC-MANILA DATED 11 JUNE 2003 RENDERED MOOT
AND ACADEMIC THE PETITION FOR CERTIORARI UNDER RULE 65 FILED BY RESPONDENTS
BEFORE THE COURT OF APPEALS FOR THE PURPOSE OF REINSTATING THE RESOLUTION OF THE
OCP-MANILA DATED 30 APRIL 2001.
II.
WHETHER OR NOT THE ASSAILED DECISION OF THE COURT OF APPEALS REINSTATING THE
RESOLUTION OF THE OCP-MANILA DATED 30 APRIL 2001 VIOLATED THE DOCTRINE THAT THE
DETERMINATION OF A CRIMINAL CASE IS WITHIN THE EXCLUSIVE JURISDICTION OF THE COURT
ONCE THE INFORMATION HAS BEEN FILED THEREIN.
III.
WHETHER OR NOT THE EVIDENCE OF A RESPONDENT IN A CRIMINAL CASE SHOULD BE
CONSIDERED DURING THE PRELIMINARY INVESTIGATION IN DETERMINING IF PROBABLE
CAUSE EXISTS TO INDICT HIM FOR THE CRIME CHARGED.
IV.
WHETHER OR NOT THE OCP-MANILA HAS ABSOLUTE DISCRETION IN DETERMINING IF
PROBABLE CAUSE EXISTS TO INDICT THE PETITIONER FOR THE CRIME CHARGED.
V.
WHETHER OR NOT THE COURT OF APPEALS WENT BEYOND THE OFFICE OF A WRIT OF
CERTIORARI WHEN IT SUBSTITUTED ITS OWN JUDGMENT FOR THAT OF THE SECRETARY OF
JUSTICE.
VI.
WHETHER OR NOT THE COURT OF APPEALS SANCTIONED THE DELIBERATE DISREGARD OF THE
RULES OF PROCEDURE WHEN IT IGNORED THE FINAL ORDER OF THE MTC-MANILA DATED 11

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JUNE 2003 AND ORDERED THE REINSTATEMENT OF THE RESOLUTION OF THE OCP-MANILA
DATED 30 APRIL 2001.
VII.
WHETHER OR NOT RESPONDENTS ENGAGED IN FORUM SHOPPING WARRANTING THE
OUTRIGHT DISMISSAL OF THE PETITIONER (sic) FOR CERTIORARI UNDER RULE 65 WHICH THEY
FILED BEFORE THE COURT OF APPEALS.
VIII.
WHETHER OR NOT THE COURT OF APPEALS SANCTIONED THE DISREGARD OF SECTION 3, RULE
46 OF THE 1997 RULES OF CIVIL PROCEDURE WHEN IT ENTERTAINED THE PETITION FOR
CERTIORARI UNDER RULE 65 FILED BY RESPONDENTS.20
The foregoing assignment of errors may be summarized into three issues:
I. Whether the order of the MTC-Manila dated June 11, 2003 granting the motion to
withdraw the information rendered moot the petition for certiorari filed by Aguinaldo for
the purpose of reinstating the April 30, 2001 resolution of the OCP of Manila; and in the
alternative, whether the rule on provisional dismissal under Section 8, Rule 117 applies.
II. Whether Aguinaldo committed forum shopping.
III. Whether the Court of Appeals erred in finding that the Secretary of Justice gravely
abused his discretion in reinstating the April 30, 2001 order of the OCP of Manila finding
probable cause against petitioner.
Anent the first issue, Torres contends that the order granting the withdrawal of the information
rendered moot the petition for certiorari filed before the Court of Appeals. Citing Baares II v.
Balising,21 Torres insists that an order dismissing a case without prejudice is final if no motion for
reconsideration or appeal therefrom is timely filed.
The contention is untenable. A motion to withdraw information differs from a motion to dismiss.
While both put an end to an action filed in court, their legal effect varies. The order granting the
withdrawal of the information attains finality after fifteen (15) days from receipt thereof, without
prejudice to the re-filing of the information upon reinvestigation.
On the other hand, the order granting a motion to dismiss becomes final fifteen (15) days after
receipt thereof,with prejudice to the re-filing of the same case once such order achieves
finality. In Baares II v. Balising, a motion to dismiss was filed thus putting into place the time-bar
rule on provisional dismissal.
In the case at bar, a motion to withdraw information was filed and not a motion to dismiss.
Hence, Baares II v. Balising would not apply. Unlike a motion to dismiss, a motion to withdraw
information is not time-barred and does not fall within the ambit of Section 8, Rule 117 of the
Revised Rules of Criminal Procedure which provides that the law on provisional dismissal becomes
operative once the judge dismisses, with the express consent of the accused and with notice to the
offended party: (a) a case involving a penalty of imprisonment not exceeding six (6) years or a fine
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of any amount, or both, where such provisional dismissal shall become permanent one (1) year
after issuance of the order without the case having been revived; or (b) a case involving a penalty of
imprisonment of more than six (6) years, where such provisional dismissal shall become
permanent two (2) years after issuance of the order without the case having been revived.
There is provisional dismissal22 when a motion filed expressly for that purpose complies with the
following requisites, viz.: (1) It must be with the express consent of the accused; and (2) There must
be notice to the offended party. Section 8, Rule 117 contemplates the filing of a motion to dismiss,
and not a motion to withdraw information. Thus, the law on provisional dismissal does not apply in
the present case.
Even assuming that the Motion to Withdraw Information is the same as a Motion to Dismiss, we do
not find that it complied with the above requisites. The Motion to Withdraw Information was filed
by the Assistant City Prosecutor and approved by the City Prosecutor without the conformity of the
accused, herein petitioner Torres. Thus, it cannot be said that the motion was filed with his express
consent as required under Section 8, Rule 117.
Respondent-spouses are not guilty of forum shopping. The cases they filed against petitioner are
based on distinct causes of action. Besides, a certificate of non-forum shopping is required only in
civil complaints under Section 5, Rule 7 of the Revised Rules of Civil Procedure. In People v.
Ferrer,23 we held that such certificate is not even necessary in criminal cases and distinct causes of
action.
Be that as it may, what is principally assailed is the Court of Appeals decision reversing the
resolution of the Justice Secretary and reinstating the April 30, 2001 resolution of the OCP of
Manila.
The issue, therefore, is whether the Secretary of Justice gravely abused his discretion in reversing
the investigating prosecutors findings on the existence of probable cause.1avvphi1.zw+
Section 1, Rule 112 of the Revised Rules of Criminal Procedure defines preliminary investigation as
an inquiry or proceeding to determine whether there is sufficient ground to engender a wellfounded belief that a crime has been committed and that the respondent is probably guilty thereof,
and should be held for trial. The officers authorized to conduct a preliminary investigation are the:
(a) Provincial or city fiscals and their assistants; (b) Municipal Trial Courts and Municipal Circuit
Trial Courts Judges; (c) National and Regional state prosecutors; and (d) Such other officers as may
be authorized by law.24
Preliminary investigation is executive in character. It does not contemplate a judicial function. It is
essentially an inquisitorial proceeding, and often, the only means of ascertaining who may be
reasonably charged with a crime. It is not a trial on the merits and has no purpose except to
determine whether a crime has been committed and whether there is probable cause to believe
that the accused is guilty thereof. It does not place the person against whom it is taken in jeopardy.
Generally, preliminary investigation falls under the authority of the prosecutor. However, since
there are not enough prosecutors, this function was also assigned to judges of Municipal Trial
Courts and Municipal Circuit Trial Courts. Their findings are reviewed by the provincial or city
prosecutor whose findings, in turn, may be reviewed by the Secretary of Justice in appropriate
cases. After conducting preliminary investigation, the investigating judge must transmit within ten
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(10) days the resolution of the case together with the entire records to the provincial or city
prosecutor.25
In Crespo v. Mogul,26 we underscored the cardinal principle that the public prosecutor controls and
directs the prosecution of criminal offenses whose resolutions may be reviewed by the Secretary of
Justice.27 We held that where there is a clash of views between a judge who did not investigate and
a fiscal who conducted a reinvestigation, those of the prosecutor should normally prevail.28
We ruled in Ledesma v. Court of Appeals29 that when a motion to withdraw an information is filed on
the ground of lack of probable cause based on a resolution of the Secretary of Justice, the bounden
duty of the trial court is to independently assess the merits of the motion. The judge is not bound by
the resolution of the Justice Secretary but must evaluate it before proceeding with the trial. While
the ruling of the Justice Secretary is persuasive, it is not binding on courts.
In sum, prosecutors control and direct the prosecution of criminal offenses, including the conduct of
preliminary investigation, subject to review by the Secretary of Justice. While his resolution is
persuasive, it is not binding on the courts. The trial court must at all times make its own
independent assessment of the merits of each case.
Thus, it is only where the decision of the Justice Secretary, or the trial court, as the case may be, is
tainted with grave abuse of discretion amounting to lack or excess of jurisdiction that the Court of
Appeals may take cognizance of the case in a petition for certiorari under Rule 65 of the Revised
Rules of Civil Procedure whose decision may then be appealed to this Court by way of a petition for
review on certiorari.
The Court of Appeals held that the Justice Secretary committed grave abuse of discretion because
he based his findings on the lack of probable cause on the 1991 Deed of Sale when what was
assailed was the 1979 Deed of Sale.30 It ruled that the defenses raised by Torres should not have
been considered during the preliminary investigation but should be threshed out only during
trial.31 Only the evidence presented by the complainant should be considered in determining
probable cause or the lack thereof.
We are not persuaded.
The Court of Appeals erred in relying solely on the affidavit-complaint and the NBI report32 and
disregarding totally the counter-affidavit and documentary evidence of petitioner.
It is well to note that Section 3, Rule 112 of the Revised Rules of Criminal Procedure not only
requires the submission of the complaint and the affidavits of the complainant and his witnesses, as
well as other supporting documents, but also directs the respondent to submit his counter-affidavit
and that of his witnesses and other supporting documents relied upon for his defense. Section 4
thereof also mandates the investigating prosecutor to certify under oath in the information that the
accused was informed of the complaint and the evidence against him, and that he was given an
opportunity to submit controverting evidence.
Thus, in determining the existence or absence of probable cause, the investigating officer shall
examine the complaint and documents in support thereof as well as the controverting evidence
presented by the defense. While the validity and merits of a partys defense or accusation and the
admissibility of the testimonies and evidence are best ventilated in a full blown trial, still, in a
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preliminary investigation, a proper consideration of the complaint and supporting evidence as well
as the controverting evidence, is warranted to determine the persons who may be reasonably
charged with the crime. The determination must be based on the totality of evidence presented by
both parties.
Prescinding from these premises, we find that the Justice Secretary did not abuse his discretion in
examining both the evidence presented by the complainant and the accused in determining the
existence or the lack of probable cause.
There is basis in his finding that no probable cause exists. The complaint and the 1979 Deed of Sale
do not connect petitioner with the crime of falsification. While the NBI report showed that the 1979
Deed of Sale was falsified, there is no showing that petitioner was the author thereof. We cannot
discern direct and personal participation by the petitioner in the alleged forged deed. While a
finding of probable cause rests on evidence showing that, more likely than not, a crime has been
committed and was committed by the accused, the existence of such facts and circumstance must
be strong enough to create a rational and logical nexus between the acts and omissions and the
accused.
The allegation that petitioner effectuated the illicit transfer of the disputed properties in his name is
without factual basis. He was not in possession of the alleged forged deed which does not even bore
his signature. We find merit in his contention that the subject properties were sold to him on March
10, 1991 considering that the new TCTs were issued in his name only on March 26, 1991. His
address mentioned in the 1979 Deed of Sale was non-existent yet in 1979, thus giving the
impression that it was executed on a later date. It would be absurd for petitioner to use the 1979
Deed of Sale to facilitate the transfer on March 26, 1991 considering his possession of the March 10,
1991 Deed of Sale.
Respondents never denied the allegation that they assumed the obligation of transferring the Tanza
properties in petitioners name. Considering that they wanted to cancel the sale and that they were
in possession of the forged deed, it is not far-fetched to assume that they facilitated the transfer of
the properties using the allegedly 1979 forged deed. It appears that the conveyance of the
questioned properties in favor of petitioner was made at the instance of the respondents.
Torres has no reason to falsify the 1979 Deed of Sale when he had in his possession the 1991 Deed
of Sale which he claims to be authentic. By presenting the alleged forged deed of sale, respondents
cast a cloud of doubt on petitioners title. While motive is not reasonable basis in determining
probable cause, the absence thereof further obviates the probability of petitioners guilt.
Besides, Nelia Aguinaldo admitted in her letter dated November 12, 1998 the sale of the properties
although she wanted the sale cancelled. This admission is consistent with petitioners declaration
that the sale took place.
In their complaint, respondents claimed that they discovered the alleged illegal conveyance in
November 2000.33This was, however, belied by their Adverse Claim dated December 18, 1999
which appeared as Entry No. 5856-115 and annotated on the new titles issued in the name of
Torres in February 2000.34 In November 1998, Nelia was claiming her share in the property that
was sold by Torres to Porfirio and Yolanda Dones in 1993.35
In D.M. Consunji, Inc. v. Esguerra,36 grave abuse of discretion is defined:
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By grave abuse of discretion is meant, such capricious and whimsical exercise of judgment as is
equivalent to lack of jurisdiction. The abuse of discretion must be grave as where the power is
exercised in an arbitrary or despotic manner by reason of passion or personal hostility and must be
so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform the
duty enjoined by or to act at all in contemplation of law.
The Secretary of Justice did not whimsically and capriciously exercise his discretion. His findings
was grounded on sound statutory and factual basis. Chief Justice Andres Narvasa in his separate
opinion in Roberts, Jr. v. Court of Appeals37 declared that the determination of probable cause to
warrant the prosecution in court should be consigned and entrusted to the Department of Justice,
as reviewer of the findings of the public prosecutors. To do otherwise is to usurp a duty that
exclusively pertains to an executive official.
In Noblejas v. Salas,38 we reaffirmed the power of supervision and control of the department
secretary over his subordinate. We stated that "the power of control therein contemplated means to
alter, modify, or nullify or set aside what a subordinate officer had done in the performance of his
duties and to substitute the judgment of the former for that of the latter." For, while it is the duty of
the fiscal to prosecute persons who, according to evidence received from the complainant, are
shown to be guilty of a crime, the Secretary of Justice is likewise bound by his oath of office to
protect innocent persons from groundless, false or serious prosecution. He would be committing a
serious dereliction of duty if he orders or sanctions the filing of an information based upon a
complaint where he is not convinced that the evidence warrants the filing of the action in court.
We also find that the trial court independently assessed the merits of the motion to withdraw
information. Before it was granted, respondents were allowed to submit their opposition39 and the
petitioner to comment40 thereon, which were both considered. The trial judge also considered the
basis of the Justice Secretarys resolution before finding that no probable cause exists, thus:
The two DOJ Resolutions absolving the accused from incipient criminal liability were premised on
the ground that the herein accused had no participation in the preparation of the alleged falsified
Deed of Sale dated July 29, 1979, which deed, in effect, transferred ownership of private
complainants three parcels of land located in Tanza, Cavite to the accused. This finding was based
on the argument that it would be highly irregular for the accused to effect the transfer of the
property through a falsified deed when accused had in his possession a valid and genuine Deed of
Sale dated March 10, 1991 executed by the spouses-complainants transferring ownership of the
aforesaid property to him.
The court is inclined to grant the motion of the public prosecutor.
The issues which the court has to resolve in the instant case had been amply discussed in the
aforesaid resolutions of the DOJ and it is convinced that, indeed, no probable cause exists against
the accused.41
WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals dated March 22, 2004
isREVERSED and SET ASIDE. The resolution of the Secretary of Justice dated November 12, 2002
isREINSTATED. No costs.
SO ORDERED.

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CONSUELO YNARES-SANTIAGO
Associate Justice
WE CONCUR:
HILARIO G. DAVIDE, JR.
Chief Justice
LEONARDO A. QUISUMBING
Associate Justice

ANTONIO T. CARPIO
Associate Justice

ADOLFO S. AZCUNA
Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in
the above Decision were reached in consultation before the case was assigned to the writer of the
opinion of the Courts Division.
HILARIO G. DAVIDE, JR.
Chief Justice

Footnotes
1

Rollo, pp. 13-70.

Decision penned by Associate Justice Jose L. Sabio, Jr. and concurred in by Associate
Justices Delilah Vidallon-Magtolis and Hakim S. Abdulwahid. Rollo, pp. 72-85.
2

Rollo, p. 87.

Id. at 101-102.

Id. at 109-111.

Id. at 119-123.

Id. at 124-126.

Id. at 178-180.

Id. at 353-380.

10

Id. at 181.
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11 Id. at 182-219.
12

Id. at 560-563.

13

Id. at 573-574.

14

Id. at 576-577.

15

Id. at 594-595.

16

Id. at 596-609.

17

Id. at 84.

18

Id. at 87.

19

Id. at 13-70.

20

Id. at 26-27.

21

384 Phil. 567 (2000).

22

Section 8, Rule 117 of the Revised Rules of Criminal Procedure, as amended provides:
Sec. 8. Provisional dismissal. A case shall not be provisionally dismissed except
with the express consent of the accused and with notice to the offended party.
The provisional dismissal of offenses punishable by imprisonment not exceeding six
(6) years or a fine of any amount, or both, shall become permanent one (1) year
after issuance of the order without the case having been revived. With respect to
offenses punishable by imprisonment of more than six (6) years, their provisional
dismissal shall become permanent two (2) years after issuance of the order without
the case having been revived.

23

339 Phil. 80, 88 (1997).

24

Section 2, Rule 112, Revised Rules of Criminal Procedure.

25

Manalastas v. Flores, A.M. No. MTJ-04-1523, 6 February 2004, 422 SCRA 298, 306-307.

26

G.R. No. 53373, 30 June 1987, 151 SCRA 462.

27

Id. at 467.

28

Id. at 468.

29

344 Phil. 207 (1997).

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30 Rollo, pp. 78-79.
31

Id. at 80.

32

Id. at 83.

33

Id. at 102.

34

Id. at 114, 116 and 118.

35

Id. at 127-130.

36

G.R. No. 118590, 30 July 1996, 260 SCRA 74, 82.

37

G.R. No. 113930, 5 March 1996, 254 SCRA 307.

G.R. Nos. L-31788 & L-31792, 15 September 1975, 67 SCRA 47, 58, citing Mondano v.
Silvosa, etc., et al., 97 Phil. 143 (1955).
38

39

CA Rollo, pp. 412-413.

40

Id. at 414-419.

41

Rollo, p. 594.

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G.R. NO. 106087 GO VS CA

Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION

G.R. No. 106087. April 7, 1993.

ROLITO GO Y TAMBUNTING, petitioner,
vs.
THE COURT OF APPEALS, THE HON. BENJAMIN V. PELAYO, PRESIDING JUDGE, BRANCH 168,
REGIONAL TRIAL COURT, NCJR, PASIG, METRO MANILA and THE PEOPLE OF THE PHILIPPINES,
respondents.
Law Firm of Raymundo A. Armovit for petitioner.
The Solicitor General for public respondents.
SYLLABUS
1. REMEDIAL LAW; CRIMINAL PROCEDURE; BAIL; NATURE OF BAIL PROCEEDINGS. Respondent
judge is correct in appreciating the nature of the bail proceedings. "[T]he hearing of an application
for bail should be summary or otherwise in the discretion of the court. By 'summary hearing' [is]
meant such brief and speedy method of receiving and considering the evidence of guilt as is
practicable and consistent with the purpose of the hearing which is merely to determine the weight
of the evidence for the purpose of bail. In such a hearing, the court 'does not sit to try the merits or
to enter into any nice inquiry as to the weight that ought to be allowed to the evidence for or
against accused, nor will it speculate on the outcome of the trial or on what further evidence may be
therein offered is admitted.' . . . The course of the inquiry may be left to the discretion of the court
which may confine itself to receiving such evidence as has reference to substantial matters avoiding
unnecessary thoroughness in the examination and cross-examination of witnesses and reducing to
a reasonable minimum the amount of corroboration particularly on details that are not essential to
the purpose of the hearing."
2. ID.; ID.; ID.; PROCEDURE IN GRANT OF BAIL IS SIMILAR TO PROCEDURE IN CANCELLATION OF
BAIL. Although the proceedings conducted by respondent judge were not for an application for
bail but to cancel that which was issued to petitioner, the principles and procedure governing
hearings on an application for bail were correctly applied by respondent judge in the cancellation of
bail proceedings since the bail was issued by this Court in G.R. No. 101837 without prejudice to any
lawful order which the trial court may issue in case the Provincial Prosecutor moves for the
cancellation of the bail. The grant of bail was made without prejudice because where bail is not a
matter of right, as in this case, the prosecution must be given the opportunity to prove that there is
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a strong evidence of guilt. In the cancellation of bail proceedings before him, the judge was
confronted with the same issue as in an application for bail, i.e., whether the evidence of guilt is so
strong as to convince the court that the accused is not entitled to bail. Hence, the similarity of the
nature and procedure of the hearings for an application for bail and the cancellation of the same.
3. LEGAL AND JUDICIAL ETHICS; DISQUALIFICATION OF JUDGES; ESSENCE OF RULE ON
DISQUALIFICATION OF JUDGES. The Constitution commands that in all criminal prosecutions,
the accused shall enjoy the right to have "a speedy, impartial, and public trial." This right is a
derivation and elaboration of the more fundamental right to due process of law. The rule on the
disqualification of judges is a mechanism for enforcing the requirements of due process.
4. ID.; ID.; REASON FOR REQUIREMENT OF IMPARTIALITY ON PART OF JUDGE. "It is now
beyond dispute that due process cannot be satisfied in the absence of that degree of objectivity on
the part of a judge sufficient to reassure litigants of his being fair and being just. Thereby there is
the legitimate expectation that the decision arrived at would be the application of the law to the
facts as found by a judge who does not play favorites." The "cold neutrality of an impartial judge,"
although required primarily for the benefit of the litigants, is also designed to preserve the integrity
of the judiciary and more fundamentally, to gain and maintain the people's faith in the institutions
they have erected when they adopted our Constitution. The notion that "justice must satisfy the
appearance of justice" is an imposition by the citizenry, as the final judge of the conduct of public
business, including trials, upon the courts of a high and uncompromising standard in the proper
dispensation of justice.
5. ID.; ID.; EFFECT OF MOTION FOR INHIBITION, DENIAL OF MOTION FOR INHIBITION, AND
PETITION CHALLENGING DENIAL OF MOTION FOR INHIBITION. Hence, if the trial judge decides
to deny a motion for inhibition based on Rule 137, Sec. 1, par. 2, he shall proceed with the trial,
unless of course restrained by either the Court of Appeals or by this Court. The mere filing of a
motion for inhibition before the trial court or a petition before either the Court of Appeals or the
Supreme Court challenging an order of the trial judge denying a motion for inhibition will not
deprive the judge of authority to proceed with the case. Otherwise, by the expedient of filing such
motion or petition, although the same be lacking in merit, a party can unduly delay the trial.
6. ID.; ID.; EVIDENCE REQUIRED IN DISQUALIFICATION OF JUDGE; BIAS AND PREJUDICE NOT
PRESUMED. While bias and prejudice, which are relied upon by petitioner, have been recognized
as valid reasons for the voluntary inhibition of the judge under Rule 137, Sec. 1, par. 2, the
established rule is that mere suspicion that a judge is partial is not enough. There should be clear
and convincing evidence to prove the charge. Bare allegations of partiality and prejudgment will not
suffice. Bias and prejudice cannot be presumed especially if weighed against a judge's sacred
obligation under his oath of office to administer justice without respect to person and do equal right
to the poor and the rich.
7. ID.; ID.; IN CASE AT BAR, THE ACT OF RESPONDENT JUDGE OF NOT SUSPENDING HEARING OF
CASE AFTER DENIAL OF PETITIONER'S MOTION FOR RECUSATION AND DURING PENDENCY OF
PETITION CHALLENGING HIS ORDERS DENYING THE MOTION FOR RECUSATION AND THE
MOTION TO SUSPEND PROCEEDINGS AND TRANSFER VENUE OUTSIDE METRO MANILA NOT
PROOF OF PARTIALITY. In the case at hand, respondent judge acted in accordance with the
Rules and prevailing jurisprudence when he proceeded with the trial after denying petitioner's
Motion for Recusation. Petitioner cannot, therefore, cite the fact that respondent judge did not

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suspend hearing the case during the pendency of this petition as proof of his claim that the judge is
partial.
8. ID.; ID.; IN CASE AT BAR, THE ACT OF RESPONDENT JUDGE OF OVERRULING PETITIONER'S
OBJECTION TO THE ADMISSIBILITY OF THE EXTRAJUDICIAL STATEMENT OF A PROSECUTION
WITNESS WHO DID NOT TESTIFY THEREON, NOT PROOF OF BIAS; REASON. The first of these
allegedly "palpably biased and hostile orders" was that issued by respondent judge on August 14,
1992 overruling petitioner's objection to the admissibility of an affidavit of Geronimo Gonzaga
offered by the prosecution. Petitioner contends that respondent judge should not have admitted the
extrajudicial statements of Gonzaga because the latter did not take the witness stand to affirm the
statements contained in the document presented by the prosecution. Petitioner suspected that
respondent judge was trying to bolster the evidence for the prosecution. This contention is without
merit. The mere fact that the trial judge overruled petitioner's objection to the admissibility of a
particular piece of evidence is not proof of bias. In Jandionco v. Pearanda, it was held that
"[d]ivergence of opinions between a judge hearing a case and a party's counsel, as to applicable
laws and jurisprudence, is not a sufficient ground to disqualify the judge from hearing the case on
the ground of bias and manifest partiality." If petitioner disagrees with the judge's ruling, he may
still question the admissibility of the evidence when he files an appeal, in case a judgment of
conviction is rendered. To conclude, however, that respondent judge, by overruling the objection
raised by petitioner's counsel, was trying to strengthen the prosecution's evidence is not only
baseless because there was no evidence given to support this conclusion, but also premature
because at that stage, the judge was not yet appreciating the merits and weight of the particular
piece of evidence in question but was merely ruling on its admissibility. Petitioner's conclusion that
"the offer and admission of Gonzaga's hearsay 'eyewitness' statement suggest a sinister concert to
simulate evidential strength" is, if not suggestive of paranoia, at the very least, an overreaction.
9. ID.; ID.; IN CASE AT BAR, THE ACT OF RESPONDENT JUDGE OF CONSIDERING THE
CANCELLATION OF BAIL PROCEEDINGS RIPE FOR RESOLUTION AND REFUSING TO ALLOW
PETITIONER'S COUNSEL TO PRESENT ANYMORE WITNESSES, NOT MOTIVATED BY BIAS;
REASON. The other supervening event allegedly demonstrating the judge's partiality occurred
during one of the hearings concerning the prosecution's motion for the cancellation of petitioner's
bail. On September 28, 1992, after eleven (11) witnesses had been presented for the prosecution
and two (2) for the defense, respondent judge considered the cancellation of bail proceedings ripe
for resolution and refused to allow petitioner's counsel to present anymore witnesses. The reasons
given by respondent judge for his ruling were: (1) the proceeding in the cancellation of bail is
summary and different from the hearing on the merits; (2) the court need not receive exactly the
same number of witnesses from both the prosecution and the defense; and (3) the counsel for
petitioner previously limited himself to two (2) witnesses as borne out by the record of the case . . .
Having determined that respondent judge made a proper appreciation of the nature of the bail
proceedings before him, we likewise hold that it was within his discretion to limit the number of
witnesses for petitioner. The power of the court in the bail proceedings to make a determination as
to whether or not the evidence of guilt is strong "implies a full exercise of judicial discretion." If the
trial judge believes that the evidence before him is sufficient for him to rule on the bail issue, after
giving both parties their opportunity to present evidence, it is within his authority to consider the
bail proceedings ripe for resolution. In any case, respondent judge acceded to petitioner's request
and allowed him to present more witnesses in the bail proceedings. In fine, the Court holds that the
respondent judge's ruling on September 28, 1992 considering the prosecution's motion for
cancellation of bail ripe for resolution on the basis of the evidence already presented was not
motivated by bias or prejudice.
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10. ID.; ID.; IN CASE AT BAR, RESPONDENT JUDGE'S ORDER ALLOWING PETITIONER'S
ARRAIGNMENT AND TRIAL WITHOUT BENEFIT OF PRELIMINARY INVESTIGATION, NOT
NECESSARILY PROOF OF PARTIALITY. Petitioner, in this Motion for Reconsideration, restates
his argument in the Petition that the respondent judge is biased, as evidenced by his Order dated
July 17, 1991 which in effect allowed petitioner's arraignment and trial without the benefit of a
preliminary investigation. It is true that in Go v. Court of Appeals, et al., G.R. No. 101837, February
11, 1992, a divided Court nullified respondent judge's July 17, 1991 Order and ordered that a
preliminary investigation be conducted. But the erroneous Order of respondent judge is not
necessarily proof of partiality. In People v. Lacson, we held that erroneous rulings do not always
constitute evidence of bias. In Luciano v. Mariano, we made the pronouncement that "[t]he mere
fact that the judge has erroneously ruled against the same litigant on two or more occasions does
not create in our minds a decisive pattern of malice on the part of the judge against that particular
litigant. This is not an unusual occurrence on our courts . . ." Moreover, the fact that the erroneous
order issued by a judge can be remedied and was actually corrected, as in this case, militates
against the disqualification of the judge on the ground of bias or partiality.
11. ID.; ID.; IN CASE AT BAR, MOTION FOR RECUSATION IS ANOTHER DILATORY MOVE. In the
case at hand, the Motion for Recusation filed by petitioner must be viewed in the light of his
lawyers' many attempts to suspend the proceedings before the respondent judge. Before the trial
court, petitioner tried at least eight (8) times, not merely to reset the scheduled hearings, but to
suspend the trial of the case itself. The following pleadings filed by petitioner before respondent
judge all prayed either to suspend the proceedings entirely or for the respondent judge to delay the
disposition of a particular issue . . . Before this Court, petitioner has already filed three (3) petitions
assailing various orders of respondent judge in connection with the single murder case pending
against him. Apart from the present petition which is docketed as G.R. No. 106087, petitioner has
previously filed two (2) other petitions docketed as G.R. Nos. 101837 and 105424. In all three (3)
petitions, petitioner applied for a temporary restraining order to have the proceedings before the
trial court held in abeyance. The murder case involving only one accused, the petitioner, has
become unnecessarily complicated and the proceedings before the trial court protracted, as can be
gleaned from the fact that between the filing of the information on July 11, 1991 and the end of last
year or December 31, 1992, the records of the case now consist of four (4) volumes and the
transcript of stenographic notes have reached a total of one thousand five hundred and twenty
three (1523) pages. Hearings are still being conducted. When taken in the light of petitioner's
repeated attempts to have the proceedings in the murder case suspended and his lawyers'
transparent maneuvers for the needless protraction of the case, the Motion for Recusation can only
be viewed as another dilatory move and the present Motion for Reconsideration a further ploy to
stall hearings.
12. ID.; CONDUCT REQUIRED OF A LAWYER BEFORE COURTS AND JUDICIAL OFFICERS. The
Rules of Court commands members of the bar "[t]o observe and maintain the respect due to the
courts of justice and judicial officers." Reinforcing this rule of conduct is the Code of Professional
Responsibility which states in Canon 11 the following: "A lawyer shall observe and maintain the
respect due to the courts and to judicial officers and should insist on similar conduct by others."
Rule 11.03 of the Code further states: "A lawyer shall abstain from scandalous, offensive or
menacing language or behaviour before the courts." The next succeeding rule, Rule 11.03 adds: "A
lawyer shall not attribute to a judge motives not supported by the record or having materiality to
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13. ID.; ID.; REASON FOR THE REQUIREMENT. To be sure, the adversarial nature of our legal
system has tempted members of the bar, in pursuing their duty to advance the interests of their
clients, to use strong language. But this privilege is not a license to malign our courts of justice.
Irreverent behavior towards the courts by members of the bar is proscribed, not so much for the
sake of the temporary incumbent of the judicial office, but more importantly, for the maintenance of
respect for our judicial system, so necessary for the country's stability. "Time and again, this Court
has admonished and punished, in varying degrees, members of the bar for statements, disrespectful
or irreverent, acrimonious or defamatory, of this Court or the lower courts . . . To be sure, lawyers
may come up with various methods, perhaps more effective, in calling the Court's attention to the
issues involved. The language vehicle does not run short of expressions, emphatic but respectful,
convincing but not derogatory, illuminating but not offensive."
14. ID.; ID.; AN INSTANCE OF HIGHLY DEROGATORY, OFFENSIVE AND CONTEMPTUOUS
LANGUAGE TOWARD A JUDGE. Indeed, in the Motion for Reconsideration, counsels for
petitioner describe as "unparalleled for sheer malevolence" respondent judge's allegedly erroneous
assumptions. Petitioner's lawyers further stated: "Petitioner's counsel, citing the above
proceedings, contested the trial judge's baseless, nay despotic attempt to muzzle his right to be
heard in his defense. . ." The trial judge's actions were also branded as an "obviously unholy rush to
do petitioner in . . ." In the Urgent Motion filed by petitioner on December 16, 1992, respondent
judge is alleged to have: (a) "generated belief of his being under contract to do the prosecution's
bidding;" (2) "evinced contempt for Supreme Court case law;" and (3) "dishonored his judicial oath
and duty to hear before he condemns, proceed upon inquiry, and render judgment on a man's
liberty only after a full trial of the facts." . . . In light of the above doctrines and jurisprudence, as
well as the inherent power and authority of this Court to cite members of the Bar in contempt and
to discipline them, we are of the opinion that the language used by petitioner's lawyers is highly
derogatory, offensive and contemptuous.
RESOLUTION
ROMERO, J p:
This is a Motion for Reconsideration of this Court's Resolution dated September 23, 1992 denying
petitioner's Petition and affirming the Decision and Resolution promulgated on March 9, 1992 and
June 26, 1992, respectively, of the Court of Appeals in CA-G.R. SP No. 26305. 1 The CA Decision and
Resolution upheld the following: (1) respondent Judge Benjamin V. Pelayo's Order dated September
4, 1991 which denied petitioner's Motion for Recusation; and (2) respondent judge's Order dated
September 17, 1991 denying petitioner's Motion to Suspend Proceedings and to Transfer Venue
Outside Metro Manila.
A review of the antecedent facts of this case, particularly those wherein respondent Judge
participated, is in order to arrive at a just and correct assessment of his acts vis-a-vis the petitioner.
On July 2, 1991, Eldon Maguan was shot inside his car along Wilson Street, San Juan, Metro Manila.
After conducting an investigation of the shooting incident, the police identified petitioner Rolito Go
as the prime suspect in the commission of the crime. On July 8, 1991, petitioner, accompanied by
two lawyers, presented himself before the San Juan Police Station. He was arrested and booked for
the shooting of Maguan. The police filed a complaint for frustrated homicide with the Office of the
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On July 11, 1991, an information for murder was filed against petitioner before the Regional Trial
Court, Pasig, Metro Manila, the victim Eldon Maguan having died on July 9, 1991.
On the same day, July 11, 1991, counsel for petitioner filed with the Prosecutor an omnibus motion
praying for petitioner's immediate release and for a preliminary investigation. Provincial
Prosecutor Mauro Castro interposed no objection to petitioner's being granted provisional liberty
on a cash bond of P100,000.00.
The case was raffled to the sala of respondent judge, the Hon. Benjamin V. Pelayo, who, on July 12,
1991, approved the cash bond posted by petitioner and ordered his release.
On July 16, 1991, respondent judge issued an Order granting leave for the Provincial Prosecutor of
Rizal to conduct a preliminary investigation.
However, on July 17, 1991, respondent judge motu proprio issued an Order 2 which: (a) recalled
the July 12, 1991 Order granting bail; (b) directed petitioner to surrender within 48 hours from
notice; (c) cancelled the July 16, 1991 Order granting leave for the Provincial Prosecutor to conduct
a preliminary investigation; (d) treated petitioner's omnibus motion for immediate release and
preliminary investigation dated July 11, 1991 as a petition for bail.
On July 19, 1991, petitioner filed a petition for certiorari, prohibition and mandamus questioning
the July 17, 1991 Order of respondent judge. On the same day, petitioner filed before the trial court
a motion to suspend all the proceedings pending the resolution of the petition filed before the
Supreme Court. 3 This motion was denied by respondent judge. 4
On July 23, 1991, petitioner voluntarily surrendered to the CAPCOM. Upon motion 5 by petitioner,
the respondent judge issued an Order 6 directing "the accused's continued detention at the
CAPCOM until such time as the Court shall have properly determined the place where accused
should be detained."
On July 29, 1991, the National Bureau of Investigation wrote a letter 7 to the trial court requesting
that custody of petitioner be transferred to the Bureau in view of an investigation for illegal
possession of firearms involving petitioner.
On the same date, July 29, 1991, the trial court issued an Order 8 granting the NBI temporary
custody of petitioner subject to the following conditions: (a) the petitioner is to be accorded his
constitutional rights during the investigation; (b) the NBI investigation is to be conducted only
during office hours and petitioner is to be returned to the custody of the CAPCOM at the end of each
day; and (c) the NBI should report to the trial court the status of the investigation.
On July 30, 1991, petitioner filed a motion 9 before the trial court praying that the Order dated July
29, 1991 be nullified and recalled.
The following day, July 31, 1991, the NBI filed a motion 10 praying that it be granted full custody of
petitioner pending the investigation of the case involving illegal possession of firearms.
An Order 11 was issued by the trial Court dated August 1, 1991 setting for hearing the issue
concerning the proper venue of petitioner's detention.
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After the hearing on petitioner's custody, the trial court issued an Order 12 dated August 2, 1991
ordering the CAPCOM to bring the person of petitioner to the court not later than August 5, 1991 so
that a commitment order for his detention at the Rizal Provincial Jail could be issued. The
Commitment Order 13 ordering the Provincial Warden of the Provincial Jail of Pasig to take custody
of petitioner was issued on August 5, 1991.
On August 8, 1991, petitioner filed a Motion for Recusation 14 praying that respondent judge
inhibit himself from hearing the case. The motion was denied by respondent judge in his Order
dated September 4, 1991. 15
On August 22, 1991, petitioner filed a Motion to Suspend Proceedings and Transfer Venue Outside
Metro Manila which was denied by respondent judge on September 17, 1991. 16
Petitioner was arraigned on August 23, 1991. In view of his refusal to enter a plea, a plea of "Not
Guilty" was entered for him by the trial court. 17
In the meantime, this Court, by Resolution dated July 24, 1991, remanded to the Court of Appeals
the petition filed by petitioner assailing the July 17, 1991 Order of the trial court.
On August 27, 1991, petitioner filed a petition for habeas corpus before the Court of Appeals.
On September 23, 1991, the Court of Appeals rendered a consolidated decision dismissing the two
petitions. However, upon petition by petitioner, this Court by an 8-6 vote in G.R. No. 101837 issued
a decision reversing the, CA decision and ordering (a) the Provincial Prosecutor to conduct a
preliminary investigation; and (b) the release of petitioner without prejudice to any order that the
trial court may issue, should the Provincial Prosecutor move for cancellation of bail at the
conclusion of the preliminary investigation.
After conducting a preliminary investigation pursuant to this Court's decision in G.R. No. 101837,
the Assistant Provincial Prosecutor issued a Resolution dated February 27, 1992 finding probable
cause to charge petitioner with the crime of murder. The Resolution was approved by the
Provincial Prosecutor who filed with the trial court a motion to cancel the bail of petitioner and a
motion to set the criminal case for resumption of the trial on the merits.
Petitioner attempted to have the Resolution of the Prosecutor reversed by appealing to the
Department of Justice, and filing petitions with the Court of Appeals (CA, G.R. SP No. 27738) and
finally to this Court (G.R. No. 105424), but his efforts did not meet with success.
On October 1, 1991, petitioner filed another petition for certiorari, prohibition and mandamus
before this Court seeking to annul: (1) the Order of the trial court dated September 4, 1991 denying
petitioner's Motion for Recusation; and (2) the Order dated September 17, 1991 denying
petitioner's Motion to Suspend Proceedings and Transfer Venue Outside Metro Manila. The petition,
docketed as G.R. No. 101772, was remanded to the Court of Appeals.
On March 9, 1992, the Court of Appeals (13th Division) rendered a decision dismissing the petition.
As to the denial of petitioner's Motion for Recusation, the Court of Appeals held in part:
"On the basis of the allegation of the petition, the Court is not inclined to strike down the denial of
petitioner's motion for recusation as a grave abuse of discretion on the part of the respondent judge
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absent any clear showing of such grave abuse of his discretion. The allegation of petitioner in
support of his motion for recusation are conclusions based on his own fears and are therefore
speculations than anything else.
In order to warrant a finding of 'prejudicial' publicity as urged by the petitioner, there must be
allegation and proof that the judge has been unduly influenced, not simply that he might be, by the
"barrage" of publicity (Martelino vs. Alejandro, 32 SCRA 106; emphasis supplied). While there is
such allegation in the petition, the Court has however found no proof so far adduced sufficient to
accept the petitioner's claim that the respondent judge has been unduly influenced by the alleged
publicity.
Additionally, We quote hereunder the pronouncement of the Supreme Court in the case of Aparicio
vs. Andal, 175 SCRA 569 where, citing the case of Pimentel vs. Salanga, 21 SCRA 160, it said:
Efforts to attain fair, just and impartial trial and decision, have a natural and alluring appeal. But,
we are not licensed to indulge in unjustified assumptions, or make a speculative approval to this
ideal. It ill behooves this Court to tar and feather a judge as biased or prejudiced, simply because
counsel for a party litigant happens to complain against him. As applied here, respondent judge has
not as yet crossed the line that divides partiality and impartiality. He has not thus far stepped to one
side of the fulcrum. No act or conduct of his would show arbitrariness or prejudice. Therefore, we
are not to assume what respondent judge, not otherwise legally disqualified, will do in a case before
him. We have had occasion to rule in a criminal case that a charge made before trial that a party
'will not be given a fair, impartial and just hearing' is 'premature.' Prejudice is not to be presumed.
Especially if weighed against a judge's legal obligation under his oath to administer justice without
respect to person and to equal right to the poor and the rich.' To disqualify or not to disqualify
himself then, as far as respondent judge is concerned, is a matter of conscience." 18
The Court of Appeals also sustained the trial court's denial of petitioner's Motion to Suspend
Proceedings and Transfer Venue Outside Metro Manila with the following pronouncement:
"On the question of the denial by the respondent court of petitioner's motion to suspend
proceedings and transfer venue outside of Metro Manila, suffice it to say that the respondent court
was correct in denying petitioner's motion. For indeed, the authority to order a change of venue or
place of trial to avoid a miscarriage of justice is vested in the Supreme Court by Article VIII, Section
5, paragraph 4 of the Constitution. Neither the respondent court nor this Court has the authority to
grant petitioner's motion for transfer of venue. The cases cited by petitioner in support of this issue
were all decided by the Supreme Court before the advent of the 1973 Constitution where the
provision on transfer of venue was first adopted, hence not applicable to the instant case." 19
Petitioner's Motion for Reconsideration of the CA decision having been denied, 20 a petition under
Rule 45 was filed before this Court on July 29, 1992 assailing the decision of the Court of Appeals.
On September 9, 1992, the Office of the Solicitor General (OSG), representing respondent People of
the Philippines, filed a Comment on the Petition.
On September 23, 1992, the Court, after considering the allegations contained, issues raised and the
arguments adduced in the Petition, as well as the Comment filed by the OSG, issued a Resolution
denying the Petition on the ground that the respondent Court of Appeals committed no reversible
error in its assailed decision.

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On October 12, 1992, the present Motion for Reconsideration 21 was filed in which petitioner
reiterates his position that respondent judge should inhibit himself from the case.
On December 16, 1992, petitioner filed a pleading captioned "Urgent Motion (for preliminary
mandatory injunction)." In said Motion, petitioner questioned the Order of the trial court dated
December 9, 1992 denying petitioner's Motion to Reopen Hearing (of the cancellation of bail
proceedings) and to Present Last Witness. It appears that after the presentation of eleven (11)
witnesses by the prosecution and six (6) by the defense, the trial court considered the question
concerning the cancellation of petitioner's bail ripe for resolution. Thereafter, petitioner filed a
Motion to Reopen and Present Last Witness. 22 But the trial court issued an Order 23 dated
December 9, 1992 which, among other things, denied the Motion. In the Urgent Motion filed with
this Court on December 16, 1992, petitioner prayed "for the issuance forthwith and ex parte of a
writ of preliminary mandatory injunction directing respondent judge to allow petitioner to
complete his defense evidence by presenting his last witness on the bail issue . . ." 24
On December 29, 1992, the Court passed a Resolution 25 issuing a temporary restraining order
(TRO) restraining respondent judge from resolving the bail issue and directing him to allow
petitioner to present his last witness. This Resolution was clarified and the TRO confirmed in
another Resolution issued by the Court on January 11, 1993. 26
On January 8, 1993, the OSG filed a Comment on petitioner's Motion for Reconsideration.
At the outset, it is noteworthy to observe that petitioner in this Motion for Reconsideration no
longer raises the question of change of venue. Moreover, the Motion for Reconsideration is
predicated on what petitioner alleges are "the supervening events demonstrating partiality to the
prosecution, on one hand, and hostility against petitioner, on the other." 27 Perforce, this
Resolution shall only consider the allegations and issues raised in this Motion for Reconsideration
and in the Comment thereon filed by the OSG.
Petitioner's Motion for Recusation filed before the trial court is based on Rule 137, sec. 1, par. 2 of
the Rules of Court on disqualification of judges.
The Constitution commands that in all criminal prosecutions, the accused shall enjoy the right to
have "a speedy, impartial, and public trial." 28 (Emphasis supplied) This right is a derivation and
elaboration of the more fundamental right to due process of law. 29 The rule on the disqualification
of judges is a mechanism for enforcing the requirements of due process. "It is now beyond dispute
that due process cannot be satisfied in the absence of that degree of objectivity on the part of a
judge sufficient to reassure litigants of his being fair and being just. Thereby there is the legitimate
expectation that the decision arrived at would be the application of the law to the facts as found by
a judge who does not play favorites." 30
The "cold neutrality of an impartial judge," 31 although required primarily for the benefit of the
litigants, is also designed to preserve the integrity of the judiciary and more fundamentally, to gain
and maintain the people's faith in the institutions they have erected when they adopted our
Constitution. The notion that "justice must satisfy the appearance of justice" 32 is an imposition by
the citizenry, as the final judge of the conduct of public business, including trials, upon the courts of
a high and uncompromising standard in the proper dispensation of justice.

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While bias and prejudice, which are relied upon by petitioner, have been recognized as valid
reasons for the voluntary inhibition 33 of the judge under Rule 137, sec. 1, par. 2, 34 the established
rule is that mere suspicion that a judge is partial is not enough. There should be clear and
convincing evidence to prove the charge. 35 Bare allegations of partiality and prejudgment will not
suffice. 36 Bias and prejudice cannot be presumed especially if weighed against a judge's sacred
obligation under his oath of office to administer justice without respect to person and do equal right
to the poor and the rich. 37
In the Motion for Reconsideration now before the Court, petitioner, to prove his allegation of bias
on the part of respondent judge, takes the latter to task for continuing with the trial during the
pendency of this petition stating that:
"Even as the instant petition for the trial judge's recusation pends, the latter did not see fit to
suspend the hearings. Indeed the trial judge has been conducting marathon hearings which, in the
context of his questioned fairness and impartiality, roars out as a railroad rush to make official a
pre-determined verdict of guilt." 38
The Court draws the attention of petitioner and his counsels 39 to the procedure to be followed by
the judge before whom a motion for disqualification has been filed. Rule 137, sec. 2 provides:
"If it be claimed that an official is disqualified from sitting as above provided, the party objecting to
his competency may, in writing, file with the official his objection, stating the grounds therefor, and
the official shall thereupon proceed with the trial, or withdraw therefrom, in accordance with his
determination of the question of his disqualification . . ." (Emphasis supplied)
In People v. Moreno, 40 we stated that if a judge denies the motion for disqualification and rules
favorably on his competency to try the case, it becomes a matter of official duty for him to proceed
with the trial and decision of the case. He cannot shirk the responsibility without the risk of being
called upon to account for his dereliction. Although this case was decided prior to the introduction
of par. 2 of Rule 137, sec. 1, there is no reason why the procedure laid down in Rule 137, sec. 2 and
applied in People v. Moreno should not likewise apply to a motion for inhibition filed pursuant to
Rule 137, sec. 1, par. 2. 41 In fact, in Genoblazo v. Court of Appeals, 42 the Court applied the
procedure prescribed in Rule 137, sec. 2 when the trial judge denied a party's motion for inhibition
under Rule 137, sec. 1, par. 2, thus:
"Moreover, the trial judge acted correctly in proceeding with the case by setting it for pre-trial since
it is within her sound discretion, after her decision in favor of her own competency, to either
proceed with the trial or refrain from acting on the case until determination of the issue of her
disqualification by the appellate court [Section 2 of Rule 137 of the Revised Rules of Court; De la Paz
v. Intermediate Appellate Court, supra, at 76]. 43
Hence, if the trial judge decides to deny a motion for inhibition based on Rule 137, sec. 1, par. 2, he
shall proceed with the trial, unless of course restrained by either the Court of Appeals or by this
Court. The mere filing of a motion for inhibition before the trial court or a petition before either the
Court of Appeals or the Supreme Court challenging an order of the trial judge denying a motion for
inhibition will not deprive the judge of authority to proceed with the case. Otherwise, by the
expedient of filing such motion or petition, although the same be lacking in merit, a party can
unduly delay the trial.

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In the case at hand, respondent judge acted in accordance with the Rules and prevailing
jurisprudence when he proceeded with the trial after denying petitioner's Motion for Recusation.
Petitioner cannot, therefore, cite the fact that respondent judge did not suspend hearing the case
during the pendency of this petition as proof of his claim that the judge is partial. This Court has
not, in connection with the petition, issued a temporary restraining order (TRO) enjoining
respondent judge from further hearing the case. The TRO which this Court issued on December 29,
1992 after the petition was denied and pending this Motion for Reconsideration ordered the judge
to desist from resolving the question on the cancellation of bail until the last witness of petitioner
was heard. The TRO did not restrain the judge from hearing the case. On the contrary, the judge was
ordered to hear petitioner's last witness in the cancellation of bail proceedings. 44 Because it was
his duty to continue trying the case and there was no order from this Court not to do so, respondent
judge committed no impropriety evincing partiality when he continued hearing the case during the
pendency of the petition before this Court.
Petitioner, in this Motion for Reconsideration, claims that since the issuance of the Court Resolution
dated September 23, 1992 denying his Petition, there have been "supervening events
demonstrating partiality to the prosecution on one hand, and hostility against petitioner, on the
other hand." 45 Petitioner alleges:
"Pursuing his unconstitutional bent first evinced when, without benefit of preliminary
investigation, petitioner's arraignment and trial, then arrest and detention for almost a year was
peremptorily ordered which this Court reversed and rebuked (G.R. no. 101837, promulgated 11
February 1992) the unchastened trial judge let out yet with two palpably biased and hostile
orders, infra, clearly and unmistakably demonstrating an unconstitutional prejudgment of
petitioner's culpability." 46
The first of these allegedly "palpably biased and hostile orders" was that issued by respondent
judge on August 14, 1992 overruling petitioner's objection to the admissibility of an affidavit of
Geronimo Gonzaga offered by the prosecution. Petitioner contends that respondent judge should
not have admitted the extrajudicial statements of Gonzaga because the latter did not take the
witness stand to affirm the statements contained in the document presented by the prosecution.
Petitioner suspected that respondent judge was trying to bolster the evidence for the prosecution.
This contention is without merit. The mere fact that the trial judge overruled petitioner's objection
to the admissibility of a particular piece of evidence is not proof of bias. In Jandionco v. Pearanda,
47 it was held that "[d]ivergence of opinions between a judge hearing a case and a party's counsel,
as to applicable laws and jurisprudence, is not a sufficient ground to disqualify the judge from
hearing the case on the ground of bias and manifest partiality." 48 If petitioner disagrees with the
judge's ruling, he may still question the admissibility of the evidence when he files an appeal, in
case a judgment of conviction is rendered. To conclude, however, that respondent judge, by
overruling the objection raised by petitioner's counsel, was trying to strengthen the prosecution's
evidence is not only baseless because there was no evidence given to support this conclusion, but
also premature because at that stage, the judge was not yet appreciating the merits and weight of
the particular piece of evidence in question but was merely ruling on its admissibility. Petitioner's
conclusion that "the offer and admission of Gonzaga's hearsay 'eyewitness' statement suggest a
sinister concert to simulate evidential strength" 49 is, if not suggestive of paranoia, at the very least,
an overreaction.

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The other supervening event allegedly demonstrating the judge's partiality occurred during one of
the hearings concerning the prosecution's motion for the cancellation of petitioner's bail. On
September 28, 1992, after eleven (11) witnesses had been presented for the prosecution and two
(2) for the defense, respondent judge considered the cancellation of bail proceedings ripe for
resolution and refused to allow petitioner's counsel to present anymore witnesses. The reasons
given by respondent judge for his ruling were: (1) the proceeding in the cancellation of bail is
summary and different from the hearing on the merits; (2) the court need not receive exactly the
same number of witnesses from both the prosecution and the defense; and (3) the counsel for
petitioner previously limited himself to two (2) witnesses as borne out by the record of the case. 50
Respondent judge is correct in appreciating the nature of the bail proceedings. "[T]he hearing of an
application for bail should be summary or otherwise in the discretion of the court. By 'summary
hearing' [is] meant such brief and speedy method of receiving and considering the evidence of guilt
as is practicable and consistent with the purpose of the hearing which is merely to determine the
weight of the evidence for the purpose of bail. In such a hearing, the court 'does not sit to try the
merits or to enter into any nice inquiry as to the weight that ought to be allowed to the evidence for
or against accused, nor will it speculate on the outcome of the trial or on what further evidence may
be therein offered is admitted.' . . . The course of the inquiry may be left to the discretion of the
court which may confine itself to receiving such evidence as has reference to substantial matters
avoiding unnecessary thoroughness in the examination and cross-examination of witnesses and
reducing to a reasonable minimum the amount of corroboration particularly on details that are not
essential to the purpose of the hearing." 51
Although the proceedings conducted by respondent judge were not for an application for bail but to
cancel that which was issued to petitioner, the principles and procedure governing hearings on an
application for bail were correctly applied by respondent judge in the cancellation of bail
proceedings since the bail was issued by this Court in G.R. No. 101837 without prejudice to any
lawful order which the trial court may issue in case the Provincial Prosecutor moves for the
cancellation of the bail. 52 The grant of bail was made without prejudice because where bail is not a
matter of right, as in this case, the prosecution must be given the opportunity to prove that there is
a strong evidence of guilt. 53 In the cancellation of bail proceedings before him, the judge was
confronted with the same issue as in an application for bail, i.e., whether the evidence of guilt is so
strong as to convince the court that the accused is not entitled to bail. Hence, the similarity of the
nature and procedure of the hearings for an application for bail and the cancellation of the same.
Having determined that respondent judge made a proper appreciation of the nature of the bail
proceedings before him, we likewise hold that it was within his discretion to limit the number of
witnesses for petitioner. The power of the court in the bail proceedings to make a determination as
to whether or not the evidence of guilt is strong "implies a full exercise of judicial discretion." 54 If
the trial judge believes that the evidence before him is sufficient for him to rule on the bail issue,
after giving both parties their opportunity to present evidence, it is within his authority to consider
the bail proceedings ripe for resolution. In any case, respondent judge acceded to petitioner's
request and allowed him to present more witnesses in the bail proceedings.
In fine, the Court holds that the respondent judge's ruling on September 28, 1992 considering the
prosecution's motion for cancellation of bail ripe for resolution on the basis of the evidence already
presented was not motivated by bias or prejudice.

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Finally, petitioner, in this Motion for Reconsideration, restates his argument in the Petition that the
respondent judge is biased, as evidenced by his Order dated July 17, 1991 55 which in effect
allowed petitioner's arraignment and trial without the benefit of a preliminary investigation.
It is true that in Go v. Court of Appeals, et al., G.R. No. 101837, February 11, 1992, a divided Court
nullified respondent judge's July 17, 1991 Order and ordered that a preliminary investigation be
conducted. But the erroneous Order of respondent judge is not necessarily proof of partiality. In
People v. Lacson, 56 we held that erroneous rulings do not always constitute evidence of bias. 57 In
Luciano v. Mariano, 58 we made the pronouncement that "[t]he mere fact that the judge has
erroneously ruled against the same litigant on two or more occasions does not create in our minds
a decisive pattern of malice on the part of the judge against that particular litigant. This is not an
unusual occurrence in our courts . . ." Moreover, the fact that the erroneous order issued by a judge
can be remedied and was actually corrected, as in this case, militates against the disqualification of
the judge on the ground of bias or partiality. 59
We have earlier underscored the importance of the rule of disqualification of judges, not only in
safeguarding the rights of litigants to due process of law but also in earning for the judiciary the
people's confidence, an element so essential in the effective administration of justice. The rule
should, therefore, not be used cavalierly to suit a litigant's personal designs or to defeat the ends of
justice. "While We are exacting on the conduct of judges confronted with motions for
disqualification's, We cannot, however, tolerate acts of litigants who, for any conceivable reason,
seek to disqualify a judge for their own purpose, under a plea of bias, hostility, prejudice or
prejudgment . . . [T]his Court does not approve the tactic of some litigants of filing of baseless
motion for disqualification of the judge as a means of delaying the case and/or of forum-shopping
for a more friendly judge." 60
In the case at hand, the Motion for Recusation filed by petitioner must be viewed in the light of his
lawyers' many attempts to suspend the proceedings before the respondent judge. Before the trial
court, petitioner tried at least eight (8) times, not merely to reset the scheduled hearings, 61 but to
suspend the trial of the case itself. The following pleadings filed by petitioner before respondent
judge all prayed either to suspend the proceedings entirely or for the respondent judge to delay the
disposition of a particular issue:
CAPTION OF PLEADING DATE OF FILING
1. Urgent Ex-Parte Motion July 19, 1991
2. Motion to Hold in Abeyance August 2, 1991
3. Motion for Recusation August 8, 1991
4. Motion to Suspend Proceedings
and Transfer Venue Outside
Metro Manila August 22, 1991
5. Motion to Suspend Proceedings March 4, 1991
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6. Second Motion to Inhibit March 2, 1992
7. Motion to Suspend Action on
Formal Offer of Evidence and on
Submission of Memorandum Dec. 21, 1992
8. Motion to Reopen Hearing and
Present Last Witness Dec. 1, 1992
Before this Court, petitioner has already filed three (3) petitions assailing various orders of
respondent judge in connection with the single murder case pending against him. Apart from the
present petition which is docketed as G.R. No. 106087, petitioner has previously filed two (2) other
petitions docketed as G.R. Nos. 101837 and 105424. In all three (3) petitions, petitioner applied for
a temporary restraining order to have the proceedings before the trial court held in abeyance.
The murder case involving only one accused, the petitioner, has become unnecessarily complicated
and the proceedings before the trial court protracted, as can be gleaned from the fact that between
the filing of the information on July 11, 1991 and the end of last year or December 31, 1992, the
records of the case now consist of four (4) volumes and the transcript of stenographic notes have
reached a total of one thousand five hundred and twenty three (1523) pages. Hearings are still
being conducted.
When taken in the light of petitioner's repeated attempts to have the proceedings in the murder
case suspended and his lawyers' transparent maneuvers for the needless protraction of the case,
the Motion for Recusation can only be viewed as another dilatory move and the present Motion for
Reconsideration a further ploy to stall hearings.
In sum, after a careful examination of the records of the case, including the transcript of
stenographic notes, and considering the applicable law, the pertinent rules and prevailing
jurisprudence, we reiterate our holding in the Court Resolution dated September 23, 1992 that the
Court of Appeals committed no reversible error in affirming the respondent judge's Order which
denied petitioner's Motion for Recusation. This extended Resolution should put an end to
petitioner's obvious attempts at deferring the trial of his principal case by dwelling on incidental
matters. The motion for reconsideration must, perforce, be denied with finality.
In the Comment on the petitioner's Motion for Recusation, the Solicitor General prays that Attys.
Raymundo A. Armovit, Miguel R. Armovit and Rafael R. Armovit, be disciplinarily dealt with by this
Court for allegedly using abusive and intemperate language against respondent judge which
betrays disrespect to the trial court.
Indeed, in the Motion for Reconsideration, counsels for petitioner describe as "unparalleled for
sheer malevolence" 62 respondent judge's allegedly erroneous assumptions. Petitioner's lawyers
further stated: "Petitioner's counsel, citing the above proceedings, contested the trial judge's
baseless, nay despotic attempt to muzzle his right to be heard in his defense . . ." 63 The trial judge's
actions were also branded as an "obviously unholy rush to do petitioner in . . ." 64
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In the Urgent Motion filed by petitioner on December 16, 1992, respondent judge is alleged to have:
(1) "generated belief of his being under contract to do the prosecution's bidding;" (2) "evinced
contempt for Supreme Court case law;" and (3) "dishonored his judicial oath and duty to hear
before he condemns, proceed upon inquiry, and render judgment on a man's liberty only after a full
trial of the facts." 65
The Rules of Court commands members of the bar "[t]o observe and maintain the respect due to the
courts of justice and judicial officers." 66 Reinforcing this rule of conduct is the Code of Professional
Responsibility which states in Canon 11 the following: "A lawyer shall observe and maintain the
respect due to the courts and to judicial officers and should insist on similar conduct by others."
Rule 11.03 of the Code further states: "A lawyer shall abstain from scandalous, offensive or
menacing language or behaviour before the courts." The next succeeding rule, Rule 11.03 adds: "A
lawyer shall not attribute to a judge motives not supported by the record or having materiality to
the case."
To be sure, the adversarial nature of our legal system has tempted members of the bar, in pursuing
their duty to advance the interests of their clients, to use strong language. But this privilege is not a
license to malign our courts of justice. Irreverent behavior towards the courts by members of the
bar is proscribed, not so much for the sake of the temporary incumbent of the judicial office, but
more importantly, for the maintenance of respect for our judicial system, so necessary for the
country's stability. "Time and again, this Court has admonished and punished, in varying degrees,
members of the bar for statements, disrespectful or irreverent, acrimonious or defamatory, of this
Court or the lower courts . . . To be sure, lawyers may come up with various methods, perhaps more
effective, in calling the Court's attention to the issues involved. The language vehicle does not run
short of expressions, emphatic but respectful, convincing but not derogatory, illuminating but not
offensive." 67
In light of the above doctrines and jurisprudence, as well as the inherent power and authority of
this Court to cite members of the Bar in contempt and to discipline them, we are of the opinion that
the language used by petitioner's lawyers is highly derogatory, offensive and contemptuous.
WHEREFORE, in view of the foregoing, the motion for reconsideration is DENIED with FINALITY.
Attys. Raymundo A. Armovit, Miguel R. Armovit and Rafael R. Armovit are hereby ordered to pay a
FINE of P500.00 each with a stern WARNING that a repetition of this or similar act and language
will be dealt with more severely. Let a copy of this Resolution be attached to their records.
SO ORDERED.
Feliciano, Bidin, Davide, Jr. and Melo, JJ ., concur.
Footnotes
1. Penned by Justice Arturo B. Buena with the concurrence of Justices Minerva P. Gonzaga-Reyes
and Quirino D. Abad Santos Jr.
2. Records, Vol. 1, p. 36.
3. Records, Vol. 1, pp. 103-104.
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4. Records, Vol. 1, p. 105.
5. Records, Vol. 1, pp. 113-114.
6. Records, Vol. 1, p. 117.
7. Records, Vol. 1, p. 118.
8. Records, Vol. 1, p. 1Z3.
9. Records, Vol. 1, pp. 125-128.
10. Records, Vol. 1, pp. 136-137.
11. Records, Vol. 1, p. 138.
12. Records, Vol. 1, p. 141.
13. Records, Vol. 1, p. 170.
14. Records, Vol. 1, pp. 172-179.
15. Records, Vol. 1, pp. 255-257.
16. Records, Vol. 1, p. 263.
17. Records, Vol. 1, pp. 211-212.
18. CA Decision (CA - G.R. SP No. 26305, March 9, 1992), pp. 7-8; Rollo, pp. 143-144.
19. Id., p. 8; Rollo, p. 144.
20. CA Resolution (CA - G.R. SP No. 26305, June 26, 1992); Rollo, pp. 147-148.
21. The pleading is captioned "Supplemental Petition and/or Motion for Reconsideration (re the
trial judge's inhibition)."
22. Rollo, pp. 227-231.
23. The full text of the Order is as follows:
"ORDER
After hearing the arguments of the defense and that of the prosecution and after taking into
consideration, as pointed out earlier by the Court that it has already heard enough from the
evidence submitted by prosecution and defense, the Court feels that the motion for cancellation of
bail is ripe for resolution, and in view thereof, the instant motion to reopen proceedings is hereby
DENIED.
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As far as the motion of prosecution to consider the incident on the cancellation of bail submitted for
resolution on the basis of the evidence thus far presented by the prosecution and defense, and to
consider the defense to have waived its right to file its formal offer of evidence, in the interest of
substantial justice and for humanitarian reason, the said motion is DENIED and defense is given up
to Monday within which to file its formal offer of evidence, copy furnished the counsel for the
prosecution, who upon receipt is given two days within which to file its comment/opposition
thereto, with or without which, the incident on the formal offer of evidence shall be deemed
submitted for resolution.
The parties are given five (5) days from receipt of the Court's ruling on the formal offer of evidence
by defense within which to file their simultaneous memoranda, with or without which, the incident
on the cancellation of bail shall be deemed submitted for resolution.
SO ORDERED."
24. Petitioner's Urgent Motion (for preliminary mandatory injunction), p. 1; Rollo, p. 220.
25. Justice Hilario G. Davide, Jr. was on leave while the ponente dissented. During the deliberations
on petitioner's Urgent Motion (for preliminary mandatory injunction), the ponente expressed the
following reasons for her dissent to the Resolution: (1) the trial court's Order of December 16, 1992
denying petitioner's Motion to Reopen and Present Last Witness is not the subject of the present
petition and cannot be dealt with here; the instant petition concerns the Court of Appeals decision
upholding the trial court's Order dated September 4, 1991 denying petitioner's Motion for
Recusation and Order dated September 17, 1991 denying petitioner's Motion to Suspend
Proceedings and to Transfer Venue Outside Metro Manila; and (2) petitioner failed to show that his
last witness could not have been presented before the trial court considered the cancellation for
bail proceedings submitted for resolution.
26. Infra, note 44.
27. Supplemental Petition and/or Motion for Reconsideration (re the trial judge's inhibition), p. 3;
Rollo, p. 200.
28. Constitution, Art. III, Sec. 14 (2).
29. Constitution, Art. III, sections 1 and 14 (1).
Art. III, sec. 1 provides:
"Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor
shall any person be denied the equal protection of the laws."
Art. III, sec. 14 (1) provides:
"Section 14. (1) No person shall be held to answer for a criminal offense without due process of
law."
30. Mateo, Jr. v. Villaluz, G.R. No. L-34756-59, March 31, 1973, 50 SCRA 18, 23.
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31. "It has been said, in fact, that due process of law requires a hearing before an impartial and
disinterested tribunal, and that every litigant is entitled to nothing less than the cold neutrality of
an impartial judge." (Gutierrez v. Santos, G.R. No. L-15824, May 30, 1961, 2 SCRA 249, 254).
32. Offutt v. United States, 99 L Ed 11, 16 (1954).
33. The terms inhibition and disqualification are used interchangeably in this Resolution. See Del
Castillo v. Javelona, supra, note 40, for the view that there is no need to make a fine distinction
between inhibition and disqualification because they may mean the same thing and bring about the
same result.
34. People v. Tuazon, G.R. No. 74799, March 28, 1988, 159 SCRA 315; People v. Serrano, G.R. No.
44712, October 28, 1991, 203 SCRA 171.
35. Beltran v. Garcia, G.R. No. L-30868, September 30, 1971, 41 SCRA 158; Aparicio v. Andal, G.R.
Nos. 86587-93, July 25, 1989, 175 SCRA 569.
36. Genoblazo v. Court of Appeals, infra, note 52.
37. Pimentel v. Salanga, G.R. No. L-27934, September 18, 1967, 21 SCRA 161.
38. Supplemental Petition and/or Motion for Reconsideration (re the trial judge's inhibition), p. 2;
Rollo, p. 199.
39. The Motion for Recusation was filed by the Law Firm of Atty. Raymundo A. Armovit composed
of Attys. Raymundo A. Armovit, Miguel R. Armovit and Rafael R. Armovit, on behalf of petitioner. On
October 3, 1991, the Law Firm of Atty. Raymundo A. Armovit withdrew its appearance before the
trial court as counsel for petitioner. Atty. Carlos Z. Ambrosio took over for a while but in May 27,
1992, Atty. Prospero A. Cresini substituted Atty. Ambrosio. In this present Motion for
Reconsideration, petitioner is represented by the Law Firm of Atty. Raymundo A. Armovit again.
40. People v. Moreno, 83 Phil. 286 (1949).
41. The Court in an obiter dictum in Geotina v. Gonzales, G.R. No. L-26310, September 30, 1971, 41
SCRA 66, stated that Rule 137, sec. 2 applies to par. 2 of Rule 137, sec. 1.
42. G.R. No. 79303, June 20, 1989, 124 SCRA 124.
43. Id., at 134-135.
44. On January 11, 1993, the Court issued a Resolution confirming and clarifying the TRO issued on
December 29, 1992, thus:
"Acting on the urgent motion for the issuance of a preliminary mandatory injunction filed by
counsel for petitioner, this Court, in issuing the temporary restraining order directed the trial court
to allow petitioner to present his last witness provided that he shall be heard in only one hearing,
after which the incident shall be deemed submitted for resolution. The trial court shall immediately
rule thereon without waiting for further instruction from this Court.
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The Court hereby CONFIRMS the temporary restraining order issued on December 29, 1992."
45. Supra, note 27.
46. Supplemental Petition and/or Motion for Reconsideration (re the trial judge's inhibition), p. 2;
Rollo, p. 199.
47. G.R. No. 79284, November 27, 1987, 155 SCRA 725.
48. Id, at 731.
49. Supplemental Petition and/or Motion for Reconsideration (re the trial judge's inhibition), p. 3;
Rollo, p. 200.
50. TSN, September 28, 1992, pp. 3-4.
51. Ocampo v. Bernabe, 77 Phil. 55, 62 (1946).
52. Go v. Court of Appeals, et al., G.R. No. 101837, February 11, 1992, 206 SCRA 138, 162.
53. People v. Calo, Jr., G.R. No. 88531, June 18, 1990, 186 SCRA 620.
54. Herras Teehankee v. Director of Prisons, 76 Phil. 756, 770 (1946).
55. Supra, note 2.
56. G.R. No. L-8188, February 13, 1961, 1 SCRA 414.
57. Cf., Heirs of Julio Rosas v. Reyes, G.R. No. 91406, July 31, 1990, 188 SCRA 236.
58. Adm. Case No. 181-J, March 31, 1971, 38 SCRA 176, 183-184.
59. Rosello v. Court of Appeals, G.R. Nos. L-46274, L-46549, December 14, 1988, 168 SCRA 459.
60. People v. Serrano, G.R. No. L-44712, October 28, 1991, 203 SCRA 171, 186-187.
61. As of the writing of this Resolution, petitioner has filed five (5) written motions to reset
hearings dated September 26, 1991, May 13, 1992, June 11, 1992, January 7, 1992 and February 16,
1993. These do not include petitioners' oral motions for postponement.
62. Rollo, p. 200.
63. Rollo, p. 201.
64. Rollo, p. 207.
65. Rollo, p. 221.
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66. Rule 138, sec. 20(b).
67. Rheem of the Philippines v. Ferrer, G.R. No. L-22979, June 26, 1967, 20 SCRA 441, 445 citing
Perkins v. Perkins, 57 Phil. 223, 226; Salcedo v. Hernandez, 61 Phil. 724; Medina v. Rivera, 66 Phil.
151, 157; In re Franco, 67 Phil. 312, 316; People v. Carillo, 77 Phil. 572, 579-580, 583; In re Sotto, 82
Phil. 595, 601-602; People v. Venturanza, 98 Phil. 211, 217; De Joya v. Court of First Instance of
Rizal, 99 Phil. 907, 915-916; Sison v. Sandejas, L-9270, April 29, 1959; Paragas v. Cruz (Resolution),
L-24433, July 30, 1965.

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