The accusation was based on Batas Pambansa
ARIEL M. LOS BAOS, on behalf of P/Supt. Victor
Arevalo, SPO2 Marcial Olympia, SPO1 Rocky Mercene
and PO1 Raul Adlawan, and in his personal capacity,
Petitioner,
- versus -
JOEL R. PEDRO, Respondent. G.R. No. 173588
April 22, 2009
DECISION
BRION, J.
We review in this petition for review
on certiorari[1] the September 19, 2005 decision[2] and the July
6, 2006 resolution[3] of the Court of Appeals (CA) in CA-G.R.
SP No. 80223. The petition seeks to revive the case against
respondent Joel R. Pedro (Pedro) for election gun ban
violation after the CA declared the case permanently
dismissed pursuant to Section 8, Rule 117 of the Rules of
Court.
THE ANTECEDENTS
Pedro was charged in court for carrying a loaded
firearm without the required written authorization from the
Commission on Elections (Comelec) a day before the May 14,
2001 national and local elections. The Information reads:
That on or about the 13th day of
May 2001 at about 4:00 oclock in the
afternoon, in [S]itio Bantauyan, [B]arangay
Bantad, Municipality of Boac, Province of
Marinduque, Philippines, and within the
jurisdiction of this Honorable Court, the
above-named accused did then and there,
willfully, unlawfully and feloniously carry a
Revolver Cal. 357, Magnum Ruger 100
loaded with six (6) ammunitions, with
Serial No. 173-56836 outside his residence
during the election period, without
authorization in writing from the
Commission on Election[s].
CONTRARY TO LAW.[4]
Bilang 881 or the Omnibus Election Code (Code) after the
Marinduque Philippine National Police (PNP) caught Pedro
illegally carrying his firearm at a checkpoint at Boac,
Marinduque. The Boac checkpoint team was composed of
Police Senior Inspector Victor V. Arevalo, SPO2 Marshal
Olympia, SPO1 Rocky Mercene, and PO1 Raul Adlawan. The
team stopped a silver-gray Toyota Hi-Ace with plate number
WHT-371 on the national highway, coming from the Boac
town proper. When Pedro (who was seated at the rear portion)
opened the window, Arevalo saw a gun carry case beside
him. Pedro could not show any COMELEC authority to carry
a firearm when the checkpoint team asked for one, but he
opened the case when asked to do so. The checkpoint team
saw the following when the case was opened: 1) one Revolver
357 Magnum Ruger GP100, serial number 173-56836, loaded
with six ammunitions; 2) one ammunition box containing 100
bullets; 3) two pieces speed loader with six ammunitions each;
and 4) one set ear protector. Pedro was with three other
men. The checkpoint team brought all of them to the Boac
police station for investigation.
The Boac election officer filed a criminal complaint
against Pedro for violating the election gun ban, i.e., for
carrying a firearm outside of his residence or place of business
without any authority from the Comelec. After an inquest, the
Marinduque provincial prosecutor filed the above Information
against Pedro with the Marinduque Regional Trial Court
(RTC) for violation of the Codes Article XXII, Section 261
(q),[5] in relation to Section 264.[6]
Pedro filed a Motion for Preliminary Investigation,
which the RTC granted.[7] The preliminary investigation,
however, did not materialize. Instead, Pedro filed with the
RTC a Motion to Quash, arguing that the Information contains
averments which, if true, would constitute a legal excuse or
justification[8] and/or that the facts charged do not constitute an
offense.[9] Pedro attached to his motion a
Comelec Certification dated September 24, 2001 that he was
exempted from the gun ban. The provincial prosecutor
opposed the motion.
 The RTC quashed the Information and ordered the 3326[15] find no application to his case as the filing of the
police and the prosecutors to return the seized articles to Information against him stopped the running of the
[10]
Pedro. prescriptive periods so that the prescription mandated by these
laws became irrelevant; and, in setting the case for
The petitioner, private prosecutor Ariel Los Baos arraignment and pre-trial conference, despite being barred
(Los Baos), representing the checkpoint team, moved to under Section 8 of Rule 117.
reopen the case, as Pedros Comelec Certification was a
falsification, and the prosecution was deprived of due process
THE COURT OF APPEALS DECISION
when the judge quashed the information without a
hearing. Attached to Los Baos motion were two Comelec
The CA initially denied Pedros petition. For
certifications stating that: (1) Pedro was not exempted from
accuracy, we quote the
the firearm ban; and (2) the signatures in the
Comelec Certification of September 24, 2001 were forged.
material portions of its ruling:

The RTC reopened the case for further proceedings, The petition lacks merit.
as Pedro did not object to Los Baos motion.[11] Pedro moved
The trial court erred in ruling that
for the reconsideration of the RTCs order primarily based on
Section 8, Rule 117 does not apply to
Section 8 of Rule 117,[12] arguing that the dismissal had provisional dismissals on motion of the
become permanent. He likewise cited the public prosecutors accused. The Rule merely provides that a
case shall not be provisionally dismissed,
lack of express approval of the motion to reopen the case. except with the express consent of the
accused and with notice to the offended
party. Nothing in the said rule proscribes its
The public prosecutor, however, manifested his application to dismissal on motion of the
express conformity with the motion to reopen the case. The accused.
trial court, for its part, rejected the position that Section 8,
Nevertheless, we find no basis for
Rule 117 applies, and explained that this provision refers to issuing the extraordinary writs of certiorari
situations where both the prosecution and the accused and prohibition, as there is no showing that
the error was tainted with grave abuse of
mutually consented to the dismissal of the case, or where the discretion. Grave abuse of discretion implies
prosecution or the offended party failed to object to the capricious and whimsical exercise of
judgment amounting to lack of
dismissal of the case, and not to a situation where the jurisdiction. The grave abuse of discretion
information was quashed upon motion of the accused and over must be so patent and gross as to amount to
an evasion or refusal to perform a duty
the objection of the prosecution. The RTC, thus, set Pedros
enjoined by law.
arraignment date.
Before the petitioner may invoke
the time-bar in Section 8, he must establish
Pedro filed with the CA a the following:
petition for certiorari and prohibition to nullify the RTCs
1. the prosecution, with
mandated reopening.[13] He argued that the RTC committed the express conformity
grave abuse of discretion amounting to lack or excess of of the accused or the
accused moves for a
jurisdiction in ruling that the dismissal contemplated under
provisional (sin
Section 8, Rule 117 refers to situations where either the perjuicio) dismissal of
prosecution and the accused mutually consented to, or where the case; or both the
prosecution and the
the prosecution alone moved for, the provisional dismissal of accused move for a
the case; in rejecting his argument that the prescriptive periods provisional dismissal
of the case;
under Article 90 of the Revised Penal Code[14] or Act No.
 2. the offended party is
notified of the motion
for a provisional
dismissal of the case;
3. the court issues an order
granting the motion
and dismissing the case
provisionally;
4. the public prosecutor is
served, with a copy of
the order of provisional
dismissal of the case.
Although the second paragraph of
Section 8 states that the order of dismissal
shall become permanent one year after the
issuance thereof, without the case having
been revived, such provision should be
construed to mean that the dismissal shall
become permanent one year after service of
the order of dismissal on the public
prosecutor, as the public prosecutor cannot
be expected to comply with the timeliness
requirement unless he is served with a copy
of the order of dismissal.
In the instant, case, the records are
bereft of proof as to when the public
prosecutor was served the order of
dismissal dated 22 November 2001. Absent
such proof, we cannot declare that the State
is barred from reviving the case.
WHEREFORE, the petition
is DENIED.
In his motion for reconsideration, Pedro manifested
the exact date and time of the Marinduque provincial
prosecutors receipt of the quashal order to be 2:35 p.m.,
December 10, 2001, and argued that based on this date, the
provisional dismissal of the case became permanent on
December 10, 2002. Based on this information, the CA
reversed itself, ruling as follows:
On 9 September 2005, we ruled that
Section 8, Rule 117 is applicable to a
dismissal on motion of the
accused. However, we did not issue the writs
of certiorari and prohibition, because it was
shown that the trial court committed grave
abuse of discretion in ordering the reopening
of the case. Moreover, we stated that we
cannot rule on the issue of whether or not the
State is barred from reopening the case
because it was not shown when the public
prosecutor was served the order of dismissal.
xxx
The arguments raised in the
respondents motion for modification were
duly passed upon in arriving at the decision
dated 9 September 2005, and no new
matters were raised which would warrant a
reconsideration thereof.
On the other hand, the petitioner
was able to prove that the motion to reopen
the case was filed after the lapse of more
than one year from the time the public
prosecutor was served the notice of
dismissal. Therefore, the state is barred
from reopening the case.
WHEREFORE, petitioner Joel
Pedros motion for partial reconsideration is
hereby GRANTED, and respondent Ariel
Los Banos motion for modification of
judgment is, accordingly, DENIED.
To summarize this ruling, the appellate court, while initially
saying that there was an error of law but no grave abuse of
discretion that would call for the issuance of a writ, reversed
itself on motion for reconsideration; it then ruled that the RTC
committed grave abuse of discretion because it failed to apply
Section 8, Rule 17 and the time-bar under this provision.
THE PETITION
Los Baos prays in his petition that the case be
remanded to the RTC for arraignment and trial, or that a new
charge sheet be filed against Pedro, or that the old information
be re-filed with the RTC. He contends that under Section 6 of
Rule 117, an order sustaining a motion to quash does not bar
another prosecution for the same offense, unless the motion
was based on the grounds specified in Section 3(g) [16] and
(i)[17] of Rule 117. Los Baos argues that the dismissal under
Section 8 of Rule 117 covers only situations where both the
prosecution and the accused either mutually consented or
agreed to, or where the prosecution alone moved for the
provisional dismissal of the case; it can also apply to instances
of failure on the part of the prosecution or the offended party
to object, after having been forewarned or cautioned that its
case will be dismissed. It does not apply where the information
was quashed. He adds that although the trial court granted the
motion to quash, it did not categorically dismiss the case,
either provisionally or permanently, as the judge simply
ordered the return of the confiscated arms and ammunition to
Pedro. The order was open-ended, and did not have the effect
of provisionally dismissing the case under Section 8 of Rule
117.
Los Baos also contends that the CA gravely erred
when: (1) it ruled in effect that the Order dated November 22,
2001 granting the motion to quash is considered a provisional
dismissal, which became permanent one year from the
prosecutors receipt of the order; the order to quash the
Information was based on Section 3 of Rule 117, not on
Section 8 of this Rule; (2) it granted Pedros motion for
reconsideration and denied Los Baos motion for modification
of judgment, when Section 6 of Rule 117 clearly provides that
an order granting a motion to quash is not a bar to another
prosecution for the same offense.
He notes that the grounds Pedro relied upon in his
motion to quash are not subsections (g) or (i) of Rule 117, but
its subsections (a) that the facts charged do not constitute an
offense, and (h) that it contains averments which if true would
constitute a legal justification. Pedros cited grounds are not the
exceptions that would bar another prosecution for the same
offense.[18] The dismissal of a criminal case upon the express
application of the accused (under subsections [a] and [h]) is
not a bar to another prosecution for the same offense, because
his application is a waiver of his constitutional prerogative
against double jeopardy.
In response to all these, respondent Pedro insists and
fully relies on the application of Section 8 of Rule 117 to
support his position that the RTC should not have granted Los
Banos motion to reopen the case.
THE ISSUES
The issue is ultimately reduced to whether Section 8,
Rule 117 is applicable to the case, as the CA found. If it
applies, then the CA ruling effectively lays the matter to rest.If
it does not, then the revised RTC decision reopening the case
should prevail.
OUR RULING
We find the petition meritorious and hold that the
case should be remanded to the trial court for arraignment
and trial.
Quashal v. Provisional Dismissal
a. Motion to Quash
A motion to quash is the mode by which an accused
assails, before entering his plea, the validity of the criminal
complaint or the criminal information filed against him for
insufficiency on its face in point of law, or for defect apparent
on the face of the Information.[19] The motion, as a rule,
hypothetically admits the truth of the facts spelled out in the
complaint or information. The rules governing a motion to
quash are found under Rule 117 of the Revised Rules of
Court. Section 3 of this Rule enumerates the
grounds for the quashal of a complaint or information, as
follows:
(a) That the facts charged do not constitute
an offense;
(b) That the court trying the case has no
jurisdiction over the offense charged;
(c) That the court trying the case has no
jurisdiction over the person of the
accused;
(d) That the officer who filed the
information had no authority to do so;
(e) That it does not conform substantially to
the prescribed form;
(f) That more than one offense is charged
except when a single punishment for
various offenses is prescribed by law;
(g) That the criminal action or liability has
been extinguished;
(h) That it contains averments which, if
true, would constitute a legal excuse or
justification; and
(i) That the accused has been previously
convicted or acquitted of the offense
charged, or the case against him was
dismissed or otherwise terminated
without his express consent.
 b. Provisional Dismissal
On the other hand, Section 8, Rule 117 that is at the
center of the dispute states that:
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.
A case is provisionally dismissed if the following
requirements concur:
1) the prosecution with the express
conformity of the accused, or the
accused, moves for a provisional
dismissal (sin perjuicio) of his case; or
both the prosecution and the accused
move for its provisional dismissal;
2) the offended party is notified of the
motion for a provisional dismissal of
the case;
3) the court issues an order granting the
motion and dismissing the case
provisionally; and
4) the public prosecutor is served with a
copy of the order of provisional
dismissal of the case.[20]
In People v. Lacson,[21] we ruled that there are sine
quanon requirements in the application of the time-bar rule
stated in the second paragraph of Section 8 of Rule 117. We
also ruled that the time-bar under the foregoing provision is a
special procedural limitation qualifying the right of the State to
prosecute, making the time-bar an essence of the given right or
as an inherent part thereof, so that the lapse of the time-bar
operates to extinguish the right of the State to prosecute the
accused.
c. Their Comparison
An examination of the whole Rule tells us that a
dismissal based on a motion to quash and a provisional
dismissal are far different from one another as concepts, in
their features, and legal consequences. While the provision on
provisional dismissal is found within Rule 117 (entitled
Motion to Quash), it does not follow that a motion to quash
results in a provisional dismissal to which Section 8, Rule 117
applies.
A first notable feature of Section 8, Rule 117 is that it
does not exactly state what a provisional dismissal is. The
modifier provisional directly suggests that the dismissals
which Section 8 essentially refers to are those that are
temporary in character (i.e., to dismissals that are without
prejudice to the re-filing of the case), and not the dismissals
that are permanent (i.e., those that bar the re-filing of the
case). Based on the law, rules, and jurisprudence, permanent
dismissals are those barred by the principle of
[22]
double jeopardy, by the previous extinction of criminal
liability,[23] by the rule on speedy trial,[24] and the dismissals
after plea without the express consent of the
[25]
accused. Section 8, by its own terms, cannot cover these
dismissals because they are not provisional.
A second feature is that Section 8 does not state the
grounds that lead to a provisional dismissal. This is in marked
contrast with a motion to quash whose grounds are specified
under Section 3. The delimitation of the grounds available in a
motion to quash suggests that a motion to quash is a class in
itself, with specific and closely-defined characteristics under
the Rules of Court. A necessary consequence is that where the
grounds cited are those listed under Section 3, then the
appropriate remedy is to file a motion to quash, not any other
remedy. Conversely, where a ground does not appear under
Section 3, then a motion to quash is not a proper remedy. A
motion for provisional dismissal may then apply if the
conditions required by Section 8 obtain.
A third feature, closely related to the second, focuses
on the consequences of a meritorious motion to quash. This
feature also answers the question of whether the quashal of an
information can be treated as a provisional dismissal. Sections
4, 5, 6, and 7 of Rule 117 unmistakably provide for the
consequences of a meritorious motion to quash. Section
4 speaks of an amendment of the complaint or information, if
the motion to quash relates to a defect curable by
amendment. Section 5 dwells on the effect of sustaining the
motion to quash - the complaint or information may be re-
filed, except for the instances mentioned under Section 6. The
latter section, on the other hand, specifies the limit of the re-
filing that Section 5 allows it cannot be done where the
dismissal is based on extinction of criminal liability or double
jeopardy. Section 7 defines double jeopardy and complements
the ground provided under Section 3(i) and the exception
stated in Section 6.
Rather than going into specifics, Section 8 simply
states when a provisional dismissal can be made, i.e., when the
accused expressly consents and the offended party is given
notice. The consent of the accused to a dismissal relates
directly to what Section 3(i) and Section 7 provide, i.e., the
conditions for dismissals that lead to double jeopardy.This
immediately suggests that a dismissal under Section 8 i.e., one
with the express consent of the accused is not intended to lead
to double jeopardy as provided under Section 7, but
nevertheless creates a bar to further prosecution under the
special terms of Section 8.
This feature must be read with Section 6 which
provides for the effects of sustaining a motion to quash the
dismissal is not a bar to another prosecution for the same
offense unless the basis for the dismissal is the extinction of
criminal liability and double jeopardy. These unique terms,
read in relation with Sections 3(i) and 7 and compared with
the consequences of Section 8, carry unavoidable implications
that cannot but lead to distinctions between a quashal and a
provisional dismissal under Section 8. They stress in no
uncertain terms that, save only for what has been provided
under Sections 4 and 5, the governing rule when a motion to
quash is meritorious are the terms of Section 6. The failure of
the Rules to state under Section 6 that a Section 8 provisional
dismissal is a bar to further prosecution shows that the framers
did not intend a dismissal based on a motion to quash and a
provisional dismissal to be confused with one another; Section
8 operates in a world of its own separate from motion to
quash, and merely provides a time-bar that uniquely applies to
dismissals other than those grounded on Section
3. Conversely, when a dismissal is pursuant to a motion to
quash under Section 3, Section 8 and its time-bar does not
apply.
Other than the above, we note also the following
differences stressing that a motion to quash and its resulting
dismissal is a unique class that should not be confused with
other dismissals:
First, a motion to quash is invariably filed by the
accused to question the efficacy of the complaint or
information filed against him or her (Sections 1 and 2, Rule
117); in contrast, a case may be provisionally dismissed at the
instance of either the prosecution or the accused, or both,
subject to the conditions enumerated under Section 8, Rule
117.[26]
Second, the form and content of a motion to quash
are as stated under Section 2 of Rule 117; these requirements
do not apply to a provisional dismissal.
Third, a motion to quash assails the validity of the
criminal complaint or the criminal information for defects or
defenses apparent on face of the information; a provisional
dismissal may be grounded on reasons other than the defects
found in the information.
Fourth, a motion to quash is allowed before the
arraignment (Section 1, Rule 117); there may be a provisional
dismissal of the case even when the trial proper of the case is
already underway provided that the required consents are
present.[27]
Fifth, a provisional dismissal is, by its own
terms, impermanent until the time-bar applies, at which time it
becomes a permanent dismissal. In contrast, an information
that is quashed stays quashed until revived; the grant of a
motion to quash does not per se carry any connotation of
impermanence, and becomes so only as provided by law or by
the Rules. In re-filing the case, what is important is the
question of whether the action can still be
brought, i.e., whether the prescription of action or of the
offense has set in. In a provisional dismissal, there can be no
re-filing after the time-bar, and prescription is not an
immediate consideration.
To recapitulate, quashal and provisional dismissal are
different concepts whose respective rules refer to different
situations that should not be confused with one another. If the
problem relates to an intrinsic or extrinsic deficiency of the
complaint or information, as shown on its face, the remedy is
a motion to quash under the terms of Section 3, Rule 117. All
other reasons for seeking the dismissal of the complaint or
information, before arraignment and under the circumstances
outlined in Section 8, fall under provisional dismissal.
Thus, we conclude that Section 8, Rule 117 does not
apply to the reopening of the case that the RTC ordered and
which the CA reversed; the reversal of the CAs order is legally
proper.
Pedros Motion to Quash
The merits of the grant of the motion to quash that
the RTC initially ordered is not a matter that has been ruled
upon in the subsequent proceedings in the courts below,
including the CA. We feel obliged to refer back to this ruling,
however, to determine the exact terms of the remand of the
case to the RTC that we shall order.
The grounds Pedro cited in his motion to quash are
that the Information contains averments which, if true, would
constitute a legal excuse or justification [Section 3(h), Rule
117], and that the facts charged do not constitute an
offense [Section 3(a), Rule 117]. We find from our
examination of the records that the Information duly charged a
specific offense and provides the details on how the offense
was committed.[28] Thus, the cited Section 3(a) ground has no
merit. On the other hand, we do not see on the face or from the
averments of the Information any legal excuse or justification.
The cited basis, in fact, for Pedros motion to quash was a
Comelec Certification (dated September 24, 2001, issued by
Director Jose P. Balbuena, Sr. of the Law Department,
Committee on Firearms and Security Personnel of the
Comelec, granting him an exemption from the ban and a
permit to carry firearms during the election period) [29] that
Pedro attached to his motion to quash. This
COMELEC Certification is a matter aliunde that is not an
appropriate motion to raise in, and cannot support, a motion to
quash grounded on legal excuse or justification found on the
face of the Information. Significantly, no hearing
was ever called to allow the prosecution to contest the
[30]
genuineness of the COMELEC certification.
Thus, the RTC grossly erred in its initial ruling that a
quashal of the Information was in order. Pedro, on the other
hand, also misappreciated the true nature, function, and utility
of a motion to quash. As a consequence, a valid Information
still stands, on the basis of which Pedro should now be
arraigned and stand trial.
One final observation: the Information was not rendered
defective by the fact that Pedro was charged of violating
Section 261(q) of the Code, instead of Section 32 of R.A. No.
7166, which amended Section 261(q); these two sections aim
to penalize among others, the carrying of firearms (or other
deadly weapons) in public places during the election period
without the authority of the Comelec. The established rule is
that the character of the crime is not determined by the caption
or preamble of the information or from the specification of the
provision of law alleged to have been violated; the crime
committed is determined by the recital of the ultimate facts
and circumstances in the complaint or information[31] Further,
in Abenes v. Court of Appeals,[32] we specifically recognized
that the amendment under Section 32 of R.A. No. 7166 does
not affect the prosecution of the accused who was charged
under Section 261(q) of the Code.
WHEREFORE, we hereby GRANT the petition and
accordingly declare the assailed September 19, 2005 decision
and the July 6, 2006 resolution of the Court of Appeals in CA-
G.R. SP No. 80223
respectively MODIFIED and REVERSED. The case is
remanded to the Regional Trial Court of Boac, Marinduque
for the arraignment and trial of respondent Joel R. Pedro, after
reflecting in the Information the amendment introduced on
Section 261(q) of the Code by Section 32 of Republic Act No.
7166.
SO ORDERED.
[G.R. No. 132624. March 13, 2000]
FIDEL M. BAARES II, LILIA C. VALERIANO, EDGAR
M. BAARES, EMILIA GATCHALIAN and FIDEL
BESARINO, petitioners, vs. ELIZABETH BALISING,
ROGER ALGER, MERLINDA CAPARIC, EUSTAQUIO
R. TEJONES, ANDREA SAYAM, JENNY ISLA, WILMA
ROGATERO, PABLITO ALEGRIA, ROLANDO
CANON, EDITHA ESTORES, EDMUNDO DOROYA,
TERESITA GUION, DANNY ANDARAYAN, LOURDES
CADAY, ROGELIO MANO, EVANGELINE CABILTES
AND PUBLIC PROSECUTOR OF RIZAL, Antipolo,
Rizal, respondents.
DECISION
KAPUNAN, J.:
This is a petition for review on certiorari under Rule 45 of the
Decision of the Regional Trial Court of Antipolo, Rizal,
Branch 71 dated August 26, 1997.[1]
The antecedent facts are as follows:
Petitioners Fidel M. Baares II, Lilia C. Valeriano, Edgar M.
Baares, Emilia Gatchialian and Fidel Besarino were the
accused in sixteen criminal cases for estafa[2] filed by the
private respondents. The cases were assigned to the Municipal
Trial Court of Antipolo, Rizal, Branch II. Ncm
After the petitioners were arraigned and entered their plea of
not guilty,[3] they filed a Motion to Dismiss the
aforementioned cases on the ground that the filing of the same
was premature, in view of the failure of the parties to undergo
conciliation proceedings before the Lupong Tagapamayapa of
Barangay Dalig, Antipolo, Rizal.[4] Petitioners averred that
since they lived in the same barangay as private respondents,
and the amount involved in each of the cases did not exceed
Two Hundred Pesos (P200.00), the said cases were required
under Section 412 in relation to Section 408 of the Local
Government Code of 1991[5] and Section 18 of the 1991
Revised Rule on Summary Procedure.[6] to be referred to
the Lupong Tagapamayapa or Pangkat ng Tagapagkasundo of
the barangay concerned for conciliation proceedings before
being filed in court.[7]
The municipal trial court issued an Order, dated July 17,
1995[8] denying petitioners Motion to Dismiss on the ground
that they failed to seasonably invoke the non-referral of the
cases to the Lupong Tagapamayapa or Pangkat ng
Tagapagkasundo. It added that such failure to invoke non-
referral of the case to the Lupon amounted to a waiver by
petitioners of the right to use the said ground as basis for
dismissing the cases.[9]
Petitioners filed a motion for reconsideration of the
aforementioned Order, claiming that nowhere in the Revised
Rules of Court is it stated that the ground of prematurity shall
be deemed waived if not raised seasonably in a motion to
dismiss.[10]
On November 13, 1995, the municipal trial court issued an
Order dismissing the sixteen criminal cases against petitioners
without prejudice, pursuant to Section 18 of the 1991 Revised
Rule on Summary Procedure.[11] Scncm
More than two months later, on February 26, 1996, private
respondents through counsel, filed a Motion to Revive the
abovementioned criminal cases against petitioners, stating that
the requirement of referral to the Lupon for conciliation had
already been complied with.[12] Attached to the motion was a
Certification dated February 13, 1996 from the Lupong
Tagapamayapaof Barangay Dalig, Antipolo, Rizal[13] stating
that the parties appeared before said body regarding the
charges of estafa filed by private respondents against
petitioners but they failed to reach an amicable settlement with
respect thereto. Petitioners filed a Comment and Opposition to
Motion to Revive claiming that the Order of the municipal
trial court, dated November 13, 1995 dismissing the cases had
long become final and executory; hence, private respondents
should have re-filed the cases instead of filing a motion to
revive.[14]
On March 18, 1996, the municipal trial court issued an
Order[15] granting private respondents Motion to Revive.
Petitioners filed a Motion for Reconsideration[16] of the
aforementioned Order which was denied by the municipal trial
court.[17]
Petitioners thereafter filed with the Regional Trial Court of
Antipolo, Rizal, a petition for certiorari, injunction and
prohibition assailing the Order dated March 18, 1996 of the
municipal trial court. They claimed that the said Order dated
November 13, 1995 dismissing the criminal cases against
them had long become final and executory considering that the
prosecution did not file any motion for reconsideration of said
Order.[18] In response thereto, private respondents filed their
Comment,[19] arguing that the motion to revive the said cases
was in accordance with law, particularly Section 18 of the
Revised Rule on Summary Procedure.[20]
After the parties submitted additional pleadings to support
their respective contentions,[21] the Regional Trial Court
rendered the assailed Decision denying the petition
for certiorari, injunction and prohibition, stating as follows:
Evaluating the allegations contained in the
petition and respondents comment thereto,
the Court regrets that it cannot agree with
the petitioner(sic). As shown by the records
the 16 criminal cases were dismissed
without prejudice at the instance of the
petitioners for failure of the private
respondent to comply with the mandatory
requirement of PD 1508. Since the dismissal
of said cases was without prejudice, the
Court honestly believes that the questioned
order has not attained finality at all.
WHEREFORE, premises considered, the
petition is hereby DENIED for lack of
merit. Sdaamiso
 SO ORDERED.[22]
The Regional Trial Court, likewise, denied petitioners Motion
for Reconsideration[23] of the aforementioned Decision for
lack of merit.[24]
Hence, this Petition.
Petitioners raise the following questions of law:
1. Whether or not an order dismissing a case
or action without prejudice may attain
finality if not appealed within the
reglementary period, as in the present case;
2. Whether or not the action or case that had
been dismissed without prejudice may be
revived by motion after the order of
dismissal had become final and executory;
and
3. Whether or not the court that had
originally acquired jurisdiction of the case
that was dismissed without prejudice still
has jurisdiction to act on the motion to
revive after the order of dismissal has
become final and executory.[25]
Petitioners contend that an order dismissing a case or action
without prejudice may attain finality if not appealed within the
reglementary period. Hence, if no motion to revive the case is
filed within the reglementary fifteen-day period within which
to appeal or to file a motion for reconsideration of the courts
order, the order of dismissal becomes final and the case may
only be revived by the filing of a new complaint or
information.[26] Petitioners further argue that after the order of
dismissal of a case attains finality, the court which issued the
same loses jurisdiction thereon and, thus, does not have the
authority to act on any motion of the parties with respect to
said case.[27]
On the other hand, private respondents submit that cases
covered by the 1991 Revised Rule on Summary Procedure
such as the criminal cases against petitioners are not covered
by the rule regarding finality of decisions and orders under the
Revised Rules of Court. They insist that cases dismissed
without prejudice for non-compliance with the requirement of
conciliation before the Lupong Tagapamayapa or Pangkat ng
Tagapagkasundo of the barangay concerned may be revived
summarily by the filing of a motion to revive regardless of the
number of days which has lapsed after the dismissal of the
case.[28]
Petitioners contentions are meritorious. Sdaad
A "final order" issued by a court has been defined as one
which disposes of the subject matter in its entirety or
terminates a particular proceeding or action, leaving nothing
else to be done but to enforce by execution what has been
determined by the court.[29] As distinguished therefrom, an
"interlocutory order" is one which does not dispose of a case
completely, but leaves something more to be adjudicated
upon.[30]
This Court has previously held that an order dismissing a case
without prejudice is a final order[31] if no motion for
reconsideration or appeal therefrom is timely filed.
In Olympia International vs. Court of Appeals,[32] we stated
thus:
The dismissal without prejudice of a
complaint does not however mean that said
dismissal order was any less final. Such
order of dismissal is complete in all details,
and though without prejudice, nonetheless
finally disposed of the matter. It was not
merely an interlocutory order but a final
disposition of the complaint.
The law grants an aggrieved party a period of fifteen (15) days
from his receipt of the courts decision or order disposing of
the action or proceeding to appeal or move to reconsider the
same.[33]
After the lapse of the fifteen-day period, an order becomes
final and executory and is beyond the power or jurisdiction of
the court which rendered it to further amend or revoke. [34] A
final judgment or order cannot be modified in any respect,
even if the modification sought is for the purpose of correcting
an erroneous conclusion by the court which rendered the
same.[35]
After the order of dismissal of a case without prejudice has
become final, and therefore becomes outside the courts power
to amend and modify, a party wishes to reinstate the case has
no other remedy but to file a new complaint.
This was explained in Ortigas & Company Limited
Partnership vs. Velasco,[36] where we ruled thus: Scsdaad
The dismissal of the case, and the lapse of
the reglementary period to reconsider or
set aside the dismissal, effectively
operated to remove the case from the
Courts docket. Even assuming the
dismissal to be without prejudice, the case
could no longer be reinstated or
"revived" by mere motion in the original
docketed action, but only by the filing of
another complaint accompanied, of course,
by the payment of the corresponding filing
fees prescribed by law.
xxx
[S]ince theoretically every final disposition
of an action does not attain finality until
after fifteen (15) days therefrom, and
consequently within that time the action still
 remains within the control of the Court, the
plaintiff may move and set aside his notice
of dismissal and revive his action before that
period lapses. But after dismissal has
become final after the lapse of the fifteen-
day reglementary period, the only way by
which the action may be resuscitated or
"revived" is by the institution of a
subsequent action through the filing of
another complaint and the payment of fees
prescribed by law. This is so because upon
attainment of finality of the dismissal
through the lapse of said reglementary
period, the Court loses jurisdiction and
control over it and can no longer make a
disposition in respect thereof inconsistent
with such dismissal.[37] (Emphasis
supplied.)
Contrary to private respondents claim, the foregoing rule
applies not only to civil cases but to criminal cases as well.
In Jaca vs. Blanco,[38] the Court defined a provisional
dismissal of a criminal case as a dismissal without prejudice to
the reinstatement thereof before the order of dismissal
becomes final or to the subsequent filing of a new information
for the offense."[39]Supremax
Thus, the Regional Trial Court erred when it denied the
petition for certiorari, injunction and prohibition and ruled
that the order of the municipal trial court, dated November 13,
1995 dismissing without prejudice the criminal cases against
petitioners had not attained finality and hence, could be
reinstated by the mere filing of a motion to revive.
Equally erroneous is private respondents contention that the
rules regarding finality of judgments under the Revised Rules
of Court[40] do not apply to cases covered by the 1991 Revised
Rule on Summary Procedure. Private respondents claim that
Section 18 of the 1991 Revised Rule on Summary Procedure
allows the revival of cases which were dismissed for failure to
submit the same to conciliation at the barangay level, as
required under Section 412 in relation to Section 408 of the
Local Government Code. The said provision states:
Referral to Lupon. Cases requiring referral
to the Lupon for conciliation under the
provisions of Presidential Decree No.
1508[41] where there is no showing of
compliance with such requirement, shall be
dismissed without prejudice, and may be
revived only after such requirement shall
have been complied with. This provision
shall not apply to criminal cases where the
accused was arrested without a warrant.[42]
There is nothing in the aforecited provision which supports
private respondents view. Section 18 merely states that when a
case covered by the 1991 Revised Rule on Summary
Procedure is dismissed without prejudice for non-referral of
the issues to the Lupon, the same may be revived only after the
dispute subject of the dismissed case is submitted to barangay
conciliation as required under the Local Government Code.
There is no declaration to the effect that said case may be
revived by mere motion even after the fifteen-day period
within which to appeal or to file a motion for reconsideration
has lapsed.
Moreover, the 1991 Revised Rule on Summary Procedure
expressly provides that the Rules of Court applies suppletorily
to cases covered by the former:
Sec. 22. Applicability of the regular
rules. The regular procedure prescribed in
the Rules of Court shall apply to the special
cases herein provided for in a suppletory
capacity insofar as they are not inconsistent
therewith.[43]
A careful examination of Section 18 in relation to Section 22
of the 1991 Revised Rule of Summary Procedure and Rule 40,
Section 2 in relation to Rule 13, Sections 9 and 10, [44] and
Rule 36, Section 2[45] of the 1997 Rules of Civil Procedure, as
amended, leads to no other conclusion than that the rules
regarding finality of judgments also apply to cases covered by
the rules on summary procedure. Nothing in Section 18 of the
1991 Revised Rule on Summary Procedure conflicts with the
prevailing rule that a judgment or order which is not appealed
or made subject of a motion for reconsideration within the
prescribed fifteen-day period attains finality.[46] Hence, the
principle expressed in the maxim interpretare et concordare
legibus est optimus interpretandi, or that every statute must be
so construed and harmonized with other statutes as to form a
uniform system of jurisprudence [47] applies in interpreting
both sets of Rules.
The rationale behind the doctrine of finality of judgments and
orders, likewise, supports our conclusion that said doctrine
applies to cases covered by the 1991 Revised Rule on
Summary Procedure:
The doctrine of finality of judgments is grounded on
fundamental considerations of public policy and sound
practice that at the risk of occasional error, the judgments of
the courts must become final at some definite date set by
law.[48] Misjuris
It is but logical to infer that the foregoing principle also
applies to cases subject to summary procedure especially since
the objective of the Rule governing the same is precisely to
settle these cases expeditiously.[49] To construe Section 18
thereof as allowing the revival of dismissed cases by mere
motion even after the lapse of the period for appealing the
same would prevent the courts from settling justiciable
controversies with finality,[50] thereby undermining the
stability of our judicial system.
The Court also finds it necessary to correct the mistaken
impression of petitioners and the municipal trial court that the
non-referral of a case for barangay conciliation as required
under the Local Government Code of 1991[51] may be raised in
a motion to dismiss even after the accused has been arraigned.
It is well-settled that the non-referral of a case for barangay
conciliation when so required under the law[52] is not
jurisdictional in nature[53] and may therefore be deemed
waived if not raised seasonably in a motion to dismiss. [54] The
Court notes that although petitioners could have invoked the
ground of prematurity of the causes of action against them due
to the failure to submit the dispute to Lupon prior to the filing
of the cases as soon as they received the complaints against
them, petitioners raised the said ground only after their
arraignment.

However, while the trial court committed an error in

dismissing the criminal cases against petitioners on the ground
that the same were not referred to the Lupon prior to the filing
thereof in court although said ground was raised by them
belatedly, the said order may no longer be revoked at present
considering that the same had long become final and
executory, and as earlier stated, may no longer be
annulled[55] by the Municipal Trial Court, nor by the Regional
Trial Court or this Court.[56] Scjuris

WHEREFORE, the petition is hereby GRANTED. The

Decision of the Regional Trial Court of Antipolo, Rizal,
Branch II dated August 26, 1997 and its Order dated January
29, 1998 in SCA Case No. 96-4092 are hereby SET ASIDE
and Criminal Cases Nos. 94-0829, 94-0830, 94-0831, 94-
0832, 94-0833, 94-0836, 94-0838, 94-0839, 94-0841, 94-
0843, 94-0847, 94-0848, 94-0850, 94-0854 and 94-0058 of the
Municipal Trial Court of Antipolo are ordered DISMISSED,
without prejudice, pursuant to Sec. 18 of the 1991 Revised
Rule on Summary Procedure.

SO ORDERED. KAPUNAN
STATE PROSECUTOR AND SPECIAL PROSECUTOR ON
SSS CASES IN REGION V, ROMULO SJ. TOLENTINO, premiums due for his employee to the Social Security System
AND REGIONAL STATE PROSECUTOR SANTIAGO despite demand.
M. TURINGAN, as alter ego of the G.R. No. 150606
Secretary of Justice in Region V, in
their official capacities, and, for and Present: The Information contains a certification by State
in representation of the PEOPLE OF
THE PHILIPPINES and MARITES PUNO, C.J., Prosecutor Tolentino, thus:
Chairperson,*
C. DE LA TORRE, in her official SANDOVAL- CERTIFICATION
GUTIERREZ,
capacity as counsel for the Complainant, CORONA, I HEREBY CERTIFY THAT THE
SOCIAL SECURITY SYSTEM (SSS) AZCUNA, and REQUIRED INVESTIGATION IN THIS
Bicol Cluster, GARCIA, JJ. CASE HAS BEEN CONDUCTED BY THE
Petitioners, UNDERSIGNED SPECIAL
Promulgated: PROSECUTOR IN ACCORDANCE WITH
- versus - LAW AND UNDER OATH AS OFFICER
June 7, 2007 OF THE COURT, THAT THERE IS
REASONABLE GROUND TO BELIEVE
HON. PABLO M. PAQUEO, JR., in his capacity as Presiding THAT THE OFFENSE HAS BEEN
Judge of RTC, Branch 23, of the City of Naga, and Accused COMMITTED, THAT THE ACCUSED IS
BENEDICT DY TECKLO, PROBABLY GUILTY THEREOF AND
Respondents. THAT THE FILING OF THE
INFORMATION IS WITH THE PRIOR
x-------------------------------------------------------------------------- AUTHORITY AND APPROVAL OF
--------------x THE REGIONAL STATE
PROSECUTOR.[2]
DECISION
The case was raffled to the RTC of Naga City,
AZCUNA, J.:
Branch 23, presided by respondent Judge Pablo M. Paqueo,
This is a petition for certiorari and mandamus Jr. It was set for arraignment on August 7, 2001. On said date,
alleging that respondent Judge Pablo M. Paqueo, Jr., Regional counsel for private respondent moved for the deferment of the
Trial Court (RTC) of Naga City, Branch 23, acted with grave arraignment and requested time to file a motion to quash the
abuse of discretion amounting to lack or excess of jurisdiction Information, which request was granted by the court.
in issuing the Orders dated August 24, 2001 and October 15,
2001. The Order dated August 24, 2001 granted the Motion to On August 10, 2001, private respondent filed a
Quash of private respondent Benedict Dy Tecklo, thus Motion to Quash, thus:
dismissing the Information filed by petitioner State Prosecutor
Accused, through counsel, most
Romulo SJ. Tolentino. The Order dated October 15, respectfully moves to quash the
2001 denied State Prosecutor Tolentinos Objection and Information x x x upon the sole ground that
State Prosecutor Romulo SJ Tolentino, not
Motion dated September 5, 2001. being the City Prosecutor nor the Provincial
Prosecutor, has no legal personality nor is he
legally clothed with the authority to
The facts are: commence prosecution by the filing of the
Information and thus prosecute the case.[3]

On June 22, 2001, petitioner State Prosecutor

Romulo SJ. Tolentino filed an Information charging private On August 16, 2001, State Prosecutor Tolentino filed
respondent Benedict Dy Tecklo, the owner/proprietor of an Opposition to Motion to Quash[4] on the following grounds:
Qualistronic Builders, of violation of Sec. 22 (a) in relation to
(1) He (State Prosecutor Tolentino)
Sec. 28 (e) of Republic Act No. 8282[1] for failing to remit the is authorized to investigate, file the
necessary Information and
 prosecute SSS cases since he was
designated as Special Prosecutor
for SSS cases by Regional State
Prosecutor Santiago M. Turingan
by virtue of Regional Order No.
97-024A dated July 14, 1997;
(2) In a letter[5] dated October 24,
2000, Chief State Prosecutor
Jovencito Zuo confirmed such
authority and that Informations to
be filed in court by prosecutors-
designate do not need the approval
of the Regional State Prosecutor or
Provincial or City Prosecutor;
(3) Under the Administrative Code
of 1987, the Regional State
Prosecutor, as alter ego of the
Secretary of Justice, is vested with
authority to designate Special
Prosecutors; and
(4) The City Prosecutor has been
inhibited by the private
complainant from investigating
SSS Cases as it is the Panel of
Prosecutors that is now acting as
City Prosecutor over all city cases
involving violations of the Social
Security Act. As acting Prosecutor,
the panel outranks the City
Prosecutor.
On August 24, 2001, the RTC issued an Order
quashing the Information and dismissing the case, thus:
For resolution is a motion to quash
filed by x x x counsel for the accused, with
an opposition to the same filed by State
Prosecutor Romulo SJ. Tolentino, the
prosecutor who filed the information.
The motion is based on the lack of
legal personality of State Prosecutor
Tolentino, [not being] legally clothed with
the authority to commence prosecution by
the filing of the information and, thus,
prosecute the case.
One of the grounds provided by the
rules to quash an Information is paragraph
(c), of Sec. 3 of Rule 117.
(c) that the officer who
filed the information had no
authority to do so.
A glance on the face of the
information would glaringly show that it
was filed by State Prosecutor Romulo
Tolentino, without the approval of the City
Prosecutor of Naga City, the situs of the
crime, a blatant violation of the third
paragraph of Sec. 4 of Rule 112 of the
Revised Rules on Criminal Procedure.
An information filed by a qualified
and authorized officer is required for the
jurisdiction of the court over the case (Villa
v. Ibaez, et al., 88 Phil. 402).
A justification put up by State
Prosecutor Tolentino is a Regional Order
No. 07-024-A subject of which is the
Designation of Personnel issued by the
Regional State Prosecutor which in effect
designated him as the special prosecutor to
handle the investigation of all SSS cases
filed before the Offices of the City
Prosecutor of the Cities of Naga, Iriga and
Legaspi and the Offices of the Provincial
Prosecutor of the different provinces in the
Bicol Region, except the provinces of
Catanduanes and Masbate, and if evidence
warrants to file the necessary information
and prosecute the same in the court of
[appropriate] jurisdiction.
The designation of State Prosecutor
Tolentino to investigate, file this information
if the evidence warrants, and to prosecute
SSS cases in court does not exempt him
from complying with the provision of the
third paragraph of [Sec. 4 of] Rule 112 of
the Revised Rules on Criminal Procedure,
that no complaint or information may be
filed or dismissed by an investigating
prosecutor without the prior written
authority or approval of the Provincial or
City Prosecutor or Chief State Prosecutor or
the Ombudsman or his deputy. The
designation given to Prosecutor Tolentino
came from the Regional Chief State
Prosecutor [who] is not one of those
mentioned exclusively by the Rules to
approve in writing the filing or the dismissal
of an information.
Also, as ruled by this court in a
similar case which was dismissed, the
second attached document supporting the
opposition to the motion, is but an opinion
of the Chief State prosecutor which has no
force and effect to set aside the mandatory
requirement of the Rules in the filing of an
information in court.
WHEREFORE, in view of all the
foregoing, the motion is granted, The
 information is hereby ordered quashed and
dismissed.[6]

Petitioners, thereafter, filed this petition praying for

Petitioner State Prosecutor Tolentino filed an
the nullification of the Orders dated August 24,
Objection and Motion praying that the Order dated August 24,
2001 and October 15, 2001.
2001 be set aside and that the case entitled People v. Tecklo be
scheduled for arraignment without unnecessary delay.
The main issue in this case is whether or
not petitioner State Prosecutor Tolentino is duly authorized to
In an Order dated October 15, 2001, respondent
file the subject Information without the approval of the City
Judge denied Tolentinos Objection and Motion, thus:
Prosecutor?
For consideration is an Objection
and Motion filed by State Prosecutor
Romulo SJ. Tolentino, praying that the In their Memorandum,[8] petitioners allege that State
Order of this court dated August 24, 2001 be Prosecutor Tolentino was duly authorized to file the
set aside and the case be scheduled for
arraignment. Information based on the following:

Acting on said motion upon receipt

1. Petitioner Regional State Prosecutor
thereof, the court gave the defense a period
Santiago M. Turingan, per
of fifteen (15) days from receipt of the order
Regional Order dated July 14,
dated September 18, 2001 to file its
1997, authorized State Prosecutor
comment and/or opposition; however, the
Tolentino to file the necessary
period lapsed with the court never receiving
Information for violations of
any comment and/or opposition from the
Republic Act No. 8282 in the Bicol
defense.
Region, except Masbate and
Catanduanes, and to prosecute the
The records show that the issue
same in courts of competent
raised in the pleadings from both parties is
jurisdiction. This was in response
whether Prosecutor Tolentino, in filing the
to the request of the SSS, Region V
information, can just ignore the provision of
for the designation of a Special
the third paragraph of Sec. 4 of Rule 112 of
Prosecutor to handle the
the Revised Rules on [C]riminal
prosecution of said criminal cases
[P]rocedure.
with the Office of the City
Prosecutor and Office of the
It is the stand of this court, when it
Provincial Prosecutor of the cities
ruled and so holds that Prosecutor Tolentino
of Naga, Legaspi and Iriga and all
may conduct exclusive investigation and
provinces of the Bicol Region.
prosecute all violations of the provisions of
the SSS Laws within the Bicol Region, but
2. Per ruling of the Chief State Prosecutor in
in the filing of the information in court, he
his letter dated October 24, 2000, . .
must comply with [x x x] the above-cited
. the information to be filed in court
provision of the rules on criminal procedure,
by prosecutors-designate do not
that is, to have the provincial or city
need the approval of the Regional
prosecutor at the situs of the offense approve
State Prosecutor or the Provincial
in writing said information. It was further
or City Prosecutor. An
ruled by this court that failure to secure said
administrative opinion interpreting
written authority of the provincial or city
existing rules issued by agencies
prosecutor would touch on the jurisdiction
directly involved in the
of this court.
implementation of the rules should
be respected and upheld.
With the foregoing, this court
cannot find any legal basis to disturb its
ruling of August 24, 2001. The instant
objection and motion is therefore denied. Respondent judge quashed the Information based on
Sec. 3 (d), Rule 117 of the Revised Rules of Criminal
SO ORDERED.[7]
Procedure in relation to the third paragraph of Sec. 4, Rule 112
of the Revised Rules of Criminal Procedure, thus:
Rule 112. Sec 4. Resolution of
investigating prosecutor and its review. x x
x
No complaint or information may
be filed or dismissed by an investigating
prosecutor without the prior written
authority or approval of the provincial or
city prosecutor or chief state
prosecutor or the Ombudsman or his
deputy.[9]
Rule 117. Sec. 3. Grounds. The
accused may move to quash the complaint
or information on any of the following
grounds:
xxx
(d) That the officer who filed the
information had no authority to do so.
Notably, changes in the third paragraph of Sec. 4,
Rule 112 were introduced in the Revised Rules of Criminal
Procedure, which took effect on December 1, 2000. It is noted
that the letter dated October 24, 2000 of Chief State
Prosecutor Jovencito R. Zuo, upon which State Prosecutor
Tolentino relies to support his authority to file the subject
Information without the approval of the City Prosecutor, was
issued before the changes in the third paragraph of Sec. 4,
Rule 112 were introduced in the Revised Rules of Criminal
Procedure.
While the old 1985 Rules of Criminal Procedure, as
amended, stated that [no] complaint or information may be
filed or dismissed by an investigating fiscal without the prior
written authority or approval of the provincial or city fiscal of
chief state prosecutor, the 2000 Revised Rules of Criminal
Procedure states that [n]o complaint or information may be
filed or dismissed by an investigating prosecutor without the
prior written authority or approval of the provincial or city
prosecutor or chief state prosecutor or the Ombudsman or his
deputy. Since the provision is couched in negative terms
importing that the act shall not be done otherwise than
designated, it is mandatory.[10]
An examination of the functions[11] of the Regional
State Prosecutor under Sec. 8 of Presidential Decree No.
1275[12] showed that they do not include that of approving the
Information filed or dismissed by the investigating prosecutor.
It is a rule of statutory construction that the express
mention of one person, thing, or consequence implies the
exclusion of all others, expressio unius est exclusio alterius.
Since the Regional State Prosecutor is not included
among the law officers authorized to approve the filing or
dismissal of the Information of the investigating prosecutor,
the Information filed by petitioner State Prosecutor Tolentino
did not comply with the requirement of Sec. 4, Rule 112 of the
Revised Rules of Criminal Procedure. Consequently, the non-
compliance was a ground to quash the Information under Sec.
3 (d), Rule 117 of the Revised Rules of Criminal Procedure.
Petitioners also contend that the accused must move
to quash at any time before entering his plea and the trial court
is barred from granting further time to the accused to do so;
and that there is no evidence in support of the motion to quash.
Rule 117 of the Revised Rules of Criminal Procedure
on the Motion to Quash provides:
SECTION 1. Time to move to
quash.At any time before entering his plea,
the accused may move to quash the
complaint or information.
SEC. 2. Form and contents. The
motion to quash shall be in writing, signed
by the accused or his counsel and shall
distinctly specify its factual and legal
grounds. The court shall consider no
grounds other than those stated in the
 motion, except lack of jurisdiction over the
offense charged. the orderly administration of justice, the provisions contained
therein should be followed by all litigants, but especially by
the prosecution arm of the Government.
The Court finds that there is substantial compliance
by private respondent with the rule above quoted, as it was
WHEREFORE, the petition for certiorari and
satisfactorily explained in his Memorandum[13] that his
mandamus is DISMISSED for lack of merit.
counsel orally moved to quash the Information before the
arraignment on August 7, 2001. In an Order issued on the
No costs.
same date, respondent Judge required private respondents
counsel to file a motion to quash within five days from the
issuance of the Order. Accordingly, the motion was filed SO ORDERED.

on August 10, 2001.

Moreover, there was no need to submit any evidence
to support the ground for quashing the Information, since it
was apparent and within judicial notice
that petitionerState Prosecutor Tolentino was not the City
Prosecutor or the Provincial Prosecutor.

As regards the allegation of willful miscitation of the

ground for quashing the Information, the Court finds that
respondent Judge failed to cite in his Order the
correct paragraph under Rule 117 of the Rules of Court where
the ground relied upon for quashing the Information is
enumerated. What is important, however, is that he correctly
cited the ground for quashing the Information.

Certiorari implies an indifferent disregard of the law,

arbitrariness and caprice, an omission to weigh pertinent
considerations, a decision arrived at without rational
deliberation.[14]

In this petition for certiorari, the Court finds that

respondent judge did not gravely abuse his discretion in
dismissing the Information filed by petitioner State Prosecutor
Romulo SJ. Tolentino for failure to comply with the third
paragraph of Sec. 4, Rule 112 of the Revised Rules of
Criminal Procedure.

The Rules of Court governs the pleading, practice

and procedure in all courts of the Philippines. For
[G.R. Nos. 107964-66. February 1, 1999]
THE PEOPLE of the PHILIPPINES represented by the
PANEL OF PROSECUTORS, DEPARTMENT
OF JUSTICE, petitioner, vs. HON. DAVID G.
NITAFAN, Presiding Judge, Branch 52, Regional
Trial Court of Manila, and IMELDA R.
MARCOS, respondents.
DECISION
MARTINEZ, J.:
On January 9, 1992, three criminal informations for
violation of Section 4 of Central Bank Circular No. 960, as
amended,[1] in relation to Section 34 of Republic Act No.
265[2] were filed against private respondent Imelda R. Marcos
before Branch 158 of the Regional Trial Court (RTC) of Pasig
(herein Branch 158-Pasig). Said Informations docketed as
Criminal Case Nos. 90384-92, 90385-92 and 90386-92 were
amended prior to arraignment. [3]
After arraignment, where private respondent pleaded not
guilty, the People thru herein petitioner, Panel of Prosecutors
from the Department of Justice (DOJ) and the Solicitor
General filed separate motions for consolidation of the three
(3) Informations pending before Branch 158-Pasig with the 21
other cases pending before RTC Branch 26-Manila (herein
Branch 26-Manila).[4] The Solicitor General alleged in its
motion that the indictable acts under the three informations
form part of and is related to the transaction complained of in
criminal cases 91-101732, 91-101734 and 91-101735 pending
before Branch 26-Manila[5] and that these two groups of cases
(the Pasig and Manila cases) relate to a series of transactions
devised by then President Ferdinand Marcos and private
respondent to hide their ill-gotten wealth.[6] The RTC of Pasig
granted the motion for consolidation provided there is no
objection from the presiding judge of Branch 26-
Manila.[7] Before the Manila RTC, the three (3) informations
were re-raffled and re-assigned instead to Branch 52-Manila
presided by public respondent Judge Nitafan wherein the three
informations (Criminal Cases Nos. 90384-92, 90385-92 and
90386-92) were re-numbered as Criminal Case Nos. 92-
107942; 92-107943 and 92-107944.
Then, without private respondent yet taking any action or
filing any motion to quash the informations, respondent judge
issued an order dated July 20, 1992 requiring petitioners to
show cause why criminal case number 92-107942 should not
be dismissed on the ground that it violates private respondents
right against ex post facto law.[8] In that order, respondent
judge said that a check with official publications reveals that
CB Circular 960 is dated 21 October 1983 (x x x) and that said
regulatory issuance was imperfectly published* in the January
30, 1984 issue of the Official Gazette.[9] Respondent judge
concluded that since the date of violation alleged in the
information was prior to the date and complete publication of
the Circular charged to have been violated, the information in
this case appears peremptorily dismissible, for to apply the
Circular to acts performed prior to its date and publication
would make it an ex post facto law, which is a violation of the
Constitution.[10]
On the same day, respondent judge issued another order
requiring the prosecution to show cause why the two other
criminal informations (92-107943 and 92-107944) should not
be dismissed on the ground that private respondents right to
double jeopardy was violated.[11] It is respondent judges
posture that based on the Solicitor-Generals allegations in its
Motion for Consolidation filed in Branch 58-Pasig that the
three cases form part of a series of transactions which are
subject of the cases pending before Branch 26-Manila, all
these cases constitute one continuous crime. Respondent judge
further stated that to separately prosecute private respondent
for a series of transaction would endow it with the functional
ability of a worm multiplication or amoeba
reproduction.[12] Thus, accused would be unduly vexed with
multiple jeopardy. In the two orders, respondent judge
likewise said that the dismissal of the three seemingly
unmeritorious and duplicitous cases would help unclogged his
docket in favor of more serious suits.[13] The prosecution
complied with the twin show cause orders accompanied by a
motion to inhibit respondent judge.
On August 6, 1992, respondent judge issued an order
denying the motion for consolidation (embodied in the
prosecutions compliance with the show cause orders) of the
three informations with those pending before Branch 26-
Manila on the ground that consolidation of cases under Rule
31 of civil procedure has no counterpart in criminal procedure,
and blamed the panel of prosecutors as apparently not
conversant with the procedure in the assignment of cases. As
additional justification, respondent judge stated that since he is
more studious and discreet, if not more systematic and
methodical, than the prosecution in the handling of cases, it
would be unfair to just pull out the case when he had already
studied it.[14]
The next day, August 7, 1992, respondent judge issued
an 8-page order dismissing criminal case no. 92-107942 on the
ground that the subject CB Circular is an ex post
facto law.[15] In a separate 17-page order dated August 10,
1992, respondent judge also dismissed the two remaining
criminal cases (92-107943 & 92-107944) ruling that the
prosecution of private respondent was part of a sustained
political vendetta by some people in the government aside
from what he considered as a violation of private respondents
right against double jeopardy.[16] From his disquisition
regarding continuing, continuous and continued offenses and
his discussion of mala prohibita, respondent judge further
ratiocinated his dismissal order in that the pendency of the
other cases before Branch 26-Manila had placed private
respondent in double jeopardy because of the three cases
before his sala.
The prosecution filed two separate motions for
reconsideration which respondent judge denied in a single
order dated September 7, 1992 containing 19 pages wherein
he made a preliminary observation that:
(T)he very civil manner in which the motions were framed,
which is consistent with the high ideals and standards of
pleadings envisioned in the rules, and for which the panel
should be commended. This only shows that the Members of
the panel had not yielded to the derisive, panicky and
intimidating reaction manifested by their Department Head
when, after learning the promulgation of the orders dismissing
some of Imelda Romualdez-Marcos cases, Secretary Drilon
went to the media and repeatedly aired diatribes and even
veiled threats against the trial judges concerned.
By the constitutional mandate that A member of the judiciary
must be a person of proven competence, integrity, probity, and
independence (Sec 7[3], Art. VIII, judges are precluded from
being dragged into running debates with parties-litigants or
their counsel and representatives in media, yet by reason of the
same provision judges are mandated to decide cases in
accordance with their own independent appreciation of the
facts and interpretation of the law. Any judge who yields to
extraneous influences, such as denigrating criticisms or
threats, and allows his independence to be undermined
thereby, leading to violation of his oath of office, has no right
to continue in his office any minute longer.
The published reaction of the Hon. Secretary is to be deplored,
but it is hoped that he had merely lapsed into impudence
instead of having intended to set a pattern of mocking and
denigrating the courts. He must have forgotten that as
Secretary of Justice, his actuations reflect the rule of law
orientation of the administration of the President whom he
represents as the latters alter ego.[17] (emphasis supplied).
The dispositive portion of the order denying the motions
for reconsideration provides:
FOR ALL THE FOREGOING CONSIDERATIONS, the
Court finds no valid reason to reconsider the dismissals
heretofore decreed, and the motions for reconsideration are
consequently denied for manifest lack of merit.[18]
Obviously dissatisfied, petitioners elevated the
case via petition for certiorari, where the primary issue raised
is whether a judge can motu proprio initiate the dismissal and
subsequently dismissed a criminal information or complaint
without any motion to that effect being filed by the accused
based on the alleged violation of the latters right against ex
post facto law and double jeopardy.
Section 1, Rule 117 of the Rules on Criminal Procedure
provides:
Time to move to quash. At any time before entering his
plea, the accused may move to quash the complaint or
information. (emphasis supplied).
It is clear from the above rule that the accused may file a
motion to quash an information at any time before entering a
plea or before arraignment. Thereafter, no motion to quash can
be entertained by the court except under the circumstances
mentioned in Section 8 of Rule 117 which adopts the omnibus
motion rule. In the case at at bench, private respondent
pleaded to the charges without filing any motion to quash. As
such, she is deemed to have waived and abandoned her right
to avail of any legal ground which she may have properly and
timely invoke to challenge the complaint or information
pursuant to Section 8 of Rule 117 which provides:
Failure to move to quash or to allege any ground therefore.
The failure of the accused to assert any ground of a motion to
quash before he pleads to the complaint or information, either
because he did not file a motion to quash or failed to allege the
same in his motion, shall be deemed a waiver of the grounds
of a motion to quash, except the grounds of no offense
charged, lack of jurisdiction over the offense charged,
extinction of the offense or penalty and jeopardy, as provided
for in paragraphs (a), (b), (f) and (h) of section 3 of this
Rule. (emphasis supplied)
It is also clear from Section 1 that the right to file a motion to
quash belongs only to the accused. There is nothing in the
rules which authorizes the court or judge to motu
proprio initiate a motion to quash if no such motion was filed
by the accused. A motion contemplates an initial action
originating from the accused. It is the latter who is in the best
position to know on what ground/s he will based his objection
to the information. Otherwise, if the judge initiates the motion
to quash, then he is not only pre-judging the case of the
prosecution but also takes side with the accused. This would
violate the right to a hearing before an independent and
impartial tribunal. Such independence and impartiality cannot
be expected from a magistrate, such as herein respondent
judge, who in his show cause orders, orders dismissing the
charges and order denying the motions for reconsideration
stated and even expounded in a lengthy disquisition with
citation of authorities, the grounds and justifications to support
his action. Certainly, in compliance with the orders, the
prosecution has no choice but to present arguments
contradicting that of respondent judge. Obviously, however, it
cannot be expected from respondent judge to overturn the
reasons he relied upon in his different orders without
contradicting himself. To allow a judge to initiate such motion
even under the guise of a show cause order would result in a
situation where a magistrate who is supposed to be neutral, in
effect, acts as counsel for the accused and judge as well. A
combination of these two personalities in one person is
violative of due process which is a fundamental right not only
of the accused but also of the prosecution.
That the initial act to quash an information lodged with
the accused is further supported by Sections 2, 3 and 8 of Rule
117 which states that:
Section 2. The motion to quash shall be in writing signed by
the accused or his counsel. It shall specify distinctly the
factual and legal grounds therefor and the Court shall consider
no grounds other than those stated therein, except lack of
jurisdiction over the offense charged.
Section 3. Grounds. The accused may move to quash the
complaint or information on any of the following grounds:
a) That the facts charged do not constitute an offense;
b) That the court trying the case has no jurisdiction over the
offense charged or the person of the accused;
c) That the officer who filed the information had no authority
to do so;
d) That it does not conform substantially to the prescribed
form;
e) That more than one offense is charged except in those cases
in which existing laws prescribe a single punishment
for various offenses;
f) That the criminal action or liability has been extinguished;
g) That it contains averments which, if true, would constitute a
legal excuse or justification; and
h) That the accused has been previously convicted or in
jeopardy of being convicted, or acquitted of the
offense charged.
Section 8. The failure of the accused to assert any ground of a
motion to quash before he pleads (Emphasis supplied).
Section 2 requires that the motion must be signed by
accused or his counsel; Section 3 states that the accused may
file a motion, and; Section 8 refers to the consequence if the
accused do not file such motion. Neither the court nor the
judge was mentioned. Section 2 further, ordains that the court
is proscribed from considering any ground other than those
stated in the motion which should be specify(ied) distinctly
therein. Thus, the filing of a motion to quash is a right that
belongs to the accused who may waived it by inaction and not
an authority for the court to assume.
It is therefore clear that the only grounds which the court
may consider in resolving a motion to quash an information or
complaint are (1) those grounds stated in the motion and (2)
the ground of lack of jurisdiction over the offense charged,
whether or not mentioned in the motion. Other than that,
grounds which have not been sharply pleaded in the motion
cannot be taken cognizance of by the court, even if at the time
of filing thereof, it may be properly invoked by the
defendant. Such proscription on considerations of other
grounds than those specially pleaded in the motion to quash is
premised on the rationale that the right to these defenses are
waivable on the part of the accused, and that by claiming to
wave said right, he is deemed to have desired these matters to
be litigated upon in a full-blown trial. Pursuant to the Rules,
the sole exception is lack of jurisdiction over the offense
charged which goes into the competence of the court to hear
and pass judgment on the cause.
With these, the rule clearly implies the requirement of
filing a motion by the accused even if the ground asserted is
premised on lack of jurisdiction over the offense
charged. Besides, lack of jurisdiction should be evident from
the face of the information or complaint to warrant a dismissal
thereof. Happily, no jurisdictional challenge is involved in this
case.
Assuming arguendo that a judge has the power to motu
proprio dismiss a criminal charge, yet contrary to the findings
of respondent judge, the grounds of ex post facto law and
double jeopardy herein invoked by him are not applicable.
On ex post facto law, suffice it to say that every law
carries with it the presumption of constitutionality until
otherwise declared by this court.[19] To rule that the CB
Circular is an ex post facto law is to say that it is
unconstitutional. However, neither private respondent nor the
Solicitor-General challenges it. This Court, much more the
lower courts, will not pass upon the constitutionality of a
statute or rule nor declare it void unless directly assailed in an
appropriate action.
With respect to the ground of double jeopardy invoked
by respondent judge, the same is improper and has neither
legal nor factual basis in this case. Double jeopardy connotes
the concurrence of three requisites, which are: (a) the first
jeopardy must have attached prior to the second, (b) the first
jeopardy must have been validly terminated, and (c) the
second jeopardy must be for the same offense as that in the
first[20] or the second offense includes or is necessarily
included in the offense charged in the first information, or is
an attempt to commit the same or is a frustration thereof.[21] In
this case, it is manifestly clear that no first jeopardy has yet
attached nor any such jeopardy terminated. Section 7, Rule
117 provides:
When an accused has been convicted or acquitted, or the case
against him dismissed or otherwise terminated without his
express consent by a court of competent jurisdiction, upon a
valid complaint or information or other formal charge
sufficient in form and substance to sustain a conviction and
after the accused had pleaded to the charge, the conviction or
acquittal of the accused or the dismissal of the case shall be a
bar to another prosecution for the offense charged, or for any
attempt to commit the same or frustration thereof, or for any
offense which necessarily includes or is necessary included in
the offense charged in the former complaint or information.
x x x x x x x x x.[22]
Under said Section, the first jeopardy attaches only (1) upon a
valid indictment, (2) before a competent court, (3) after
arraignment, (4) when a valid plea has been entered, and (5)
when the defendant was convicted or acquitted, or the case
was dismissed or otherwise terminated without the express
consent of the accused.[23]
Other than the Solicitor-Generals allegation of pending
suits in Branch 26-Manila, respondent judge has no other basis
on whether private respondent had already been arraigned,
much less entered a plea in those cases pending before the said
Branch. Even assuming that there was already arraignment
and plea with respect to those cases in Branch 26-Manila
which respondent judge used as basis to quash the three
informations pending in his sala, still the first jeopardy has not
yet attached. Precisely, those Branch 26-Manila cases are still
pending and there was as yet no judgment on the merits at the
time respondent judge quashed the three informations in his
sala. Private respondent was not convicted, acquitted nor the
cases against her in Branch 26-Manila dismissed or otherwise
terminated which definitely shows the absence of the fifth
requisite for the first jeopardy to attached. Accordingly, it was
wrong to say that the further prosecution of private respondent
under the three informations pending Branch 56-Manila would
violate the formers right against double jeopardy.
WHEREFORE, Premises considered, the petition is
GRANTED and the two orders dated January 20, 1990, as
well as the orders dated August 7, 1992, August 10, 1992 and
September 7, 1992 all issued by respondent judge are hereby
REVERSED AND SET ASIDE. Let this case be
REMANDED to the trial court for further proceedings.
SO ORDERED.
CRISTETA CHUA-BURCE, petitioner, vs. COURT OF
APPEALS AND PEOPLE OF THE
PHILIPPINES, respondents.
DECISION
QUISUMBING, J.:
Subject of the present appeal by certiorari is the decision
dated November 27, 1992 of the Court of Appeals in CA-G.R.
CR No. 12037, (a) affirming in toto the trial courts decision
finding petitioner guilty of estafa, and (b) denying her Motion
for Reconsideration in a Resolution dated March 25, 1993.
The Regional Trial Court, Calapan, Oriental Mindoro, Branch
40, rendered a joint decision finding petitioner guilty of estafa
under Article 315, par. 1 (b) of the Revised Penal Code, in
Criminal Case No. C-2313, and likewise found petitioner
liable for the amount of P150,000.00 in Civil Case No. R-
3733. Only the criminal case is before us for review. h Y
The uncontroverted facts, as found by the Court of Appeals,
are as follows:
On August 16, 1985, Ramon Rocamora, the Manager (of
Metropolitan Bank and Trust Company, Calapan Branch,
Oriental Mindoro) requested Fructuoso Peaflor, Assistant
Cashier, to conduct a physical bundle count of the cash inside
the vault, which should total P4,000,000.00, more or less.
During this initial cash count, they discovered a shortage of
fifteen bundles of One Hundred Pesos denominated bills
totalling P150,000.00. The One Hundred Peso bills actually
counted was P3,850,000.00 as against the balance of
P4,000,000.00 in the Cash in Vault (CIV) Summary Sheet, or
a total shortage of P150,000.00. The next day, to determine if
there was actually a shortage, a re-verification of the records
and documents of the transactions in the bank was conducted.
There was still a shortage of P150,000.00.
The bank initiated investigations totalling four (4) in all. The
first was by Ramon Rocamora, the Manager. The second was
by the banks internal auditors headed by Antonio
Batungbakal. Then, the banks Department of Internal Affairs
conducted an independent investigation. Thereafter, the
National Bureau of Investigation (NBI) came in to investigate.
All of these investigations concluded that there was a shortage
of P150,000.00, and the person primarily responsible was the
banks Cash Custodian, Cristeta Chua-Burce, the herein
accused. Jksm
On November 4, 1985, unable to satisfactorily explain the
shortage of P150,000.00, the accuseds service with the bank
was terminated.
To recover the missing amount, Metropolitan Bank and Trust
Company (Metrobank) filed a Civil Case for Sum of Money
and Damages with Preliminary Attachment and Garnishment
docketed as Civil Case No. R-3733 against petitioner and her
husband, Antonio Burce. Esm
Prior to the filing of the Answer, the following Information for
Estafa was filed against petitioner:
"That on or about the 16th day of August
1985, and for a period prior and subsequent
thereto, the above-named accused, with
unfaithfulness or abuse of confidence, and
with intent to defraud, did then and there
wilfully, unlawfully, and feloniously, in her
capacity as Cash Custodian of the
Metrobank, Calapan Branch, take from the
Banks Vault the amount of ONE
HUNDRED FIFTY THOUSAND
(P150,000.00) PESOS, which is under her
direct custody and/or accountability,
misappropriate and convert to her own
personal use and benefit, without the
knowledge and consent of the offended
party, despite repeated demands for her to
account and/or return the said amount, she
refused and failed, and still fails and refuses
to the damage and prejudice of the
Metrobank, Calapan Branch, in the
aforementioned amount of ONE
HUNDRED FIFTY THOUSAND
(P150,000.00) PESOS.
Contrary to Article 315 of the Revised Penal
Code.
Calapan, Oriental Mindoro, November 27,
1985."[1]
Both civil and criminal cases were raffled to the same branch
of the Regional Trial Court of Calapan, Oriental Mindoro,
Branch 40. Esmsc
Thereafter, petitioner moved for the suspension of the criminal
case on the ground of the existence of a prejudicial
question, viz., that the resolution of the civil case was
determinative of her guilt or innocence in the criminal
case.[2] The trial court, over the vehement opposition of the
private and public prosecutors, granted the motion and
suspended the trial of the criminal case.[3] On petition
for certiorari to the Court of Appeals, the appellate court ruled
that there was no prejudicial question.[4]
Petitioner was arraigned and assisted by counsel de parte,
entered a plea of not guilty.[5] While the trial of the criminal
case was suspended, the trial of the civil case continued. At
the time of arraignment, the civil case was already submitted
for decision. Hence, during the pre-trial conference of the
criminal case, the parties agreed to adopt their respective
evidence in the civil case as their respective evidence in the
criminal case.[6] The trial court ordered the parties to submit
their written agreement pursuant to Section 4 of Rule 118 of
the Rules of Court.[7]Thereafter, petitioner, duly assisted by
her counsel, with the conforme of the public prosecutor,
entered into the following pre-trial agreement:[8]
 "COMES NOW, the accused, assisted by
counsel, and unto this Honorable Court most
respectfully submits this Pre-Trial
agreement:
1. That the evidence already adduced by the
plaintiff in Civil Case No. R-3733 will be
adopted by the prosecution as its evidence in
Criminal Case No. C-2313;
2. That the evidence to be adduced by the
defendant in Civil Case No. R-3733 will
also be adopted as evidence for the defense
in Criminal Case No. C-2313.
WHEREFORE, premises considered, it is
prayed that the foregoing pre-trial agreement
be admitted in compliance with the Order of
this Court dated April 19, 1988.
RESPECTFULLY SUBMITTED.
Calapan, Oriental Mindoro, August 20,
1990.
CRISTETA CHUA-BURCE (sgd.)
Accused
Assisted By:
RODRIGO C. DIMAYACYAC (sgd.)
Defense Counsel
San Vicente, Calapan
Oriental Mindoro
IBP O.R. No. 292575
May 11, 1990
Quezon City
With Conformity:
EMMANUEL S. PANALIGAN (sgd.)
Prosecuting Fiscal
Pursuant to the pre-trial agreement, the public prosecutor filed
a Motion to Adopt Evidence.[9] Both the pre-trial agreement
and said Motion were granted by the trial court.[10]
On March 18, 1991, the trial court rendered a consolidated
decision[11] finding petitioner (a) guilty of estafa under Article
315 (1) (b) of the Revised Penal Code in the criminal case, and
(b) liable for the amount of P150,000.00 in the civil case. The
dispositive portion of decision provides -
- In Criminal Case No. C-2313 -
WHEREFORE, the Court hereby finds the
accused Cristeta Chua-Burce guilty beyond
reasonable doubt of the crime of Estafa,
punishable under Art. 315, paragraph 1 (b)
of the Revised Penal Code, which imposes a
penalty of prision correccional in its
maximum period to prision mayor in its
minimum period but considering that the
amount involved exceeds P22,000.00, the
penalty provided for shall be imposed in its
maximum period, adding one year for each
additional P10,000.00, but the total amount
not to exceed twenty years. Esmmis
Applying the Indeterminate Sentence Law,
the imposable penalty shall be one degree
lower as minimum of arresto mayor with a
penalty range of One Month and One Day to
Six Months, as minimum to prision
mayor in its maximum period, as maximum,
or a penalty of Six years to Twelve Years.
Considering the mitigating circumstance of
voluntary surrender, the court hereby
imposes upon the accused to suffer
imprisonment from SIX (6) MONTHS
of arresto mayor in its maximum period, as
minimum, to EIGHT (8) YEARS of prision
mayor, in its minimum period, as maximum.
The civil liability shall not be imposed in
this case due to a separate civil
action. Esmso
- In Civil Case No. R-3733 -
WHEREFORE, judgment is hereby
rendered in favor of the plaintiff Metrobank,
ordering defendants Cristeta Chua-Burce
and Antonio Burce, spouses, to pay
Metrobank the amount of P150,000.00
representing the amount misappropriated
with the legal rate of six percent (6%) per
annum from August 15, 1985 until fully paid
and to pay the costs of suit.
SO ORDERED."
Petitioner seasonably appealed her conviction in the criminal
case to the Court of Appeals. Petitioner filed a separate appeal
in the civil case.
In a decision dated November 27, 1992,[12] the Court of
Appeals affirmed the trial courts decision in toto. Petitioners
Motion for Reconsideration was likewise denied.[13] Hence,
the recourse to this Court. Msesm
Petitioner raises the following issues:[14]
1. IS THE RESULT OF POLYGRAPH
EXAMINATION ADMISSIBLE IN
EVIDENCE?
2. CAN THE PRESIDING JUDGE OF THE
REGIONAL TRIAL COURT ADMIT IN
EVIDENCE THE EVIDENCE WHICH
WAS ALREADY DENIED ADMISSION
IN THE ORDER OF THE FORMER
JUDGE OF THE SAME COURT?
3. DOES PRIMA FACIE PRESUMPTION
OF MISAPPROPRIATION OR
CONVERSION EXISTS (sic) AGAINST
THE PETITIONER WHEN THERE WERE
OTHER PERSONS WHO HAD DIRECT
AND GREATER ACCESS IN THE CASH-
IN-VAULT?
4. IS RULE 111 SECTION 2 (a) OF THE
REVISED RULES ON CRIMINAL
PROCEDURE APPLICABLE IN (sic)THE
CASE AT BAR?
5. WAS THERE A VALID PROCEEDING
WHEN THE FISCAL WAS NOT
ACTUALLY PRESENT AND DID NOT
CONTROL AND SUPERVISE THE
PROSECUTION OF THE CASE? Exsm
In gist, (1) petitioner contends that the trial court erred in
taking into account the results of the polygraph examination as
circumstantial evidence of guilt considering the inherent
unreliability of such tests, and the fact that the previous trial
judge who handled the case already ruled such evidence as
inadmissible; (2) petitioner insists that there can be no
presumption of misappropriation when there were other
persons who had access to the cash in vault; and (3) petitioner
questions the validity of the trial of criminal case considering
that the pre-trial agreement dispensed with the intervention of
the public prosecutor in a full-blown trial of the criminal
case. Kyle
The Office of the Solicitor General, for the State, contends
that the guilt of petitioner has been proven beyond reasonable
doubt by the following facts which were duly established
during trial - first, petitioner was the cash custodian who was
directly responsible and accountable for the cash-in-
vault. Second, the other persons who had access to the vault
facilities never used the duplicate keys to open the safety
deposit boxes and the cash safe from where the P100.00 bill
denominations were located. In fact, the duplicate keys were
offered in evidence still in their sealed
envelopes. Third, alterations and superimposition on the cash-
in-vault summary sheet were made by petitioner to cover the
cash shortage. Lastly, there was a valid joint trial of the civil
and criminal cases.
The crucial issues, in our mind, are (1) whether there was a
valid trial of the criminal case, and (2) whether the elements of
the crime of estafa under Article 315 (1) (b) of the Revised
Penal Code were duly proven beyond reasonable
doubt. Kycalr
First, petitioner assails the validity of the proceedings in the
trial court on the ground that the public prosecutor did not
intervene and present any evidence during the trial of the
criminal case. The records clearly show that the pre-trial
agreement was prepared by petitioner with the conforme of the
public prosecutor. Thereafter, petitioner filed
a consolidated memorandum for both civil and criminal cases.
Section 5 of Rule 110[15] requires that all criminal actions shall
be prosecuted under the direction and control of the public
prosecutor. The rationale behind the rule is "to prevent
malicious or unfounded prosecutions by private
persons."[16] The records show that the public prosecutor
actively participated in the prosecution of the criminal case
from its inception. It was during pre-trial conference when the
parties agreed to adopt their respective evidence in the civil
case to the criminal case. This is allowed under Section 2 (e)
of Rule 118 of the Rules of Court[17] which provides that
during pre-trial conference, the parties shall consider "such
other matters as will promote a fair and expeditious trial." The
parties, in compliance with Section 4 of Rule 118, [18] reduced
to writing such agreement. Petitioner, her counsel, and the
public prosecutor signed the agreement. Petitioner is bound by
the pre-trial agreement, and she cannot now belatedly disavow
its contents.[19]
On the second issue. Petitioner was charged with the crime of
estafa under Article 315 (1) (b) of the Revised Penal
Code.[20] In general, the elements of estafa are: (1) that the
accused defrauded another (a) by abuse of confidence or (b)
by means of deceit; and (2) that damage or prejudice capable
of pecuniary estimation is caused to the offended party or third
person.[21]Deceit is not an essential requisite of estafa with
abuse of confidence, since the breach of confidence takes the
place of the fraud or deceit, which is a usual element in the
other estafas.[22]
The elements of estafa through conversion or misappropriation
under Art. 315 (1) (b) of the Revised Penal Code are: [23]
(1) that personal property is received in
trust, on commission, for administration or
under any other circumstance involving the
duty to make delivery of or to return the
same, even though the obligation is
guaranteed by a bond;
(2) that there is conversion or diversion of
such property by the person who has so
received it or a denial on his part that he
received it;
(3) that such conversion, diversion or denial
is to the injury of another and
 (4) that there be demand for the return of the
property.
Have the foregoing elements been met in the case at bar? We
find the first element absent. When the money, goods, or any
other personal property is received by the offender from the
offended party (1) in trust or (2) on commission or (3)
for administration, the offender acquires both material or
physical possession and juridical possession of the thing
received.[24] Juridical possession means a possession which
gives the transferee a right over the thing which the transferee
may set up even against the owner.[25] In this case, petitioner
was a cash custodian who was primarily responsible for the
cash-in-vault. Her possession of the cash belonging to the
bank is akin to that of a bank teller, both being mere bank
employees. Calrky
In People v. Locson,[26] the receiving teller of a bank
misappropriated the money received by him for the bank. He
was found liable for qualified theft on the theory that the
possession of the teller is the possession of the bank. We
explained in Locson that -
"The money was in the possession of the
defendant as receiving teller of the bank, and
the possession of the defendant was the
possession of the bank. When the defendant,
with grave abuse of confidence, removed the
money and appropriated it to his own use
without the consent of the bank, there was
the taking or apoderamiento contemplated
in the definition of the crime of theft." [27]
keeper of the funds received, and has no
independent right or title to retain or possess
the same as against the bank. An agent, on
the other hand, can even assert, as against
his own principal, an independent,
autonomous, right to retain money or goods
received in consequence of the agency; as
when the principal fails to reimburse him for
advances he has made, and indemnify him
for damages suffered without his fault
(Article 1915, [N]ew Civil Code; Article
1730, old)." Mesm
Petitioner herein being a mere cash custodian had no juridical
possession over the missing funds. Hence, the element of
juridical possession being absent, petitioner cannot be
convicted of the crime of estafa under Article 315, No. 1 (b) of
the Revised Penal Code.[29]
WHEREFORE, the petition is hereby granted and petitioner
is ACQUITTED of the crime of estafa under Article 315 (1)
(b) of the Revised Penal Code. Petitioner is ordered
RELEASED from custody unless she is being held for some
other lawful cause. No costs. Slx
SO ORDERED.

In the subsequent case of Guzman v. Court of Appeals,[28] a

travelling sales agent misappropriated or failed to return to his
principal the proceeds of things or goods he was
commissioned or authorized to sell. He was, however, found
liable for estafa under Article 315 (1) (b) of the Revised Penal
Code, and not qualified theft. In the Guzman case, we
explained the distinction between possession of a bank teller
and an agent for purposes of determining criminal liability -

"The case cited by the Court of Appeals

(People vs. Locson, 57 Phil. 325), in support
of its theory that appellant only had the
material possession of the merchandise he
was selling for his principal, or their
proceeds, is not in point. In said case, the
receiving teller of a bank who
misappropriated money received by him for
the bank, was held guilty of qualified theft
on the theory that the possession of the teller
is the possession of the bank. There is an
essential distinction between the possession
by a receiving teller of funds received from
third persons paid to the bank, and an agent
who receives the proceeds of sales of
merchandise delivered to him in agency by
his principal. In the former case, payment by
third persons to the teller is payment to the
bank itself; the teller is a mere custodian or
G.R. No. 152644 February 10, 2006
JOHN ERIC LONEY, STEVEN PAUL REID and PEDRO
B. HERNANDEZ, Petitioners,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
CARPIO, J.:
The Case
This is a petition for review1 of the Decision2 dated 5
November 2001 and the Resolution dated 14 March 2002 of
the Court of Appeals. The 5 November 2001 Decision
affirmed the ruling of the Regional Trial Court, Boac,
Marinduque, Branch 94, in a suit to quash Informations filed
against petitioners John Eric Loney, Steven Paul Reid, and
Pedro B. Hernandez ("petitioners"). The 14 March 2002
Resolution denied petitioners motion for reconsideration.
The Facts
Petitioners John Eric Loney, Steven Paul Reid, and Pedro B.
Hernandez are the President and Chief Executive Officer,
Senior Manager, and Resident Manager for Mining
Operations, respectively, of Marcopper Mining Corporation
("Marcopper"), a corporation engaged in mining in the
province of Marinduque.
Marcopper had been storing tailings3 from its operations in a
pit in Mt. Tapian, Marinduque. At the base of the pit ran a
drainage tunnel leading to the Boac and Makalupnit rivers. It
appears that Marcopper had placed a concrete plug at the
tunnels end. On 24 March 1994, tailings gushed out of or near
the tunnels end. In a few days, the Mt. Tapian pit had
discharged millions of tons of tailings into the Boac and
Makalupnit rivers.
In August 1996, the Department of Justice separately charged
petitioners in the Municipal Trial Court of Boac, Marinduque
("MTC") with violation of Article 91(B),4 sub-paragraphs 5
and 6 of Presidential Decree No. 1067 or the Water Code of
the Philippines ("PD 1067"),5 Section 86 of Presidential
Decree No. 984 or the National Pollution Control Decree of
1976 ("PD 984"),7 Section 1088 of Republic Act No. 7942 or
the Philippine Mining Act of 1995 ("RA 7942"), 9 and Article
36510 of the Revised Penal Code ("RPC") for Reckless
Imprudence Resulting in Damage to Property. 11
Petitioners moved to quash the Informations on the following
grounds: (1) the Informations were "duplicitous" as the
Department of Justice charged more than one offense for a
single act; (2) petitioners John Eric Loney and Steven Paul
Reid were not yet officers of Marcopper when the incident
subject of the Informations took place; and (3) the
Informations contain allegations which constitute legal excuse
or justification.
The Ruling of the MTC
In its Joint Order of 16 January 1997 ("Joint Order"), the
MTC12 initially deferred ruling on petitioners motion for lack
of "indubitable ground for the quashing of the [I]nformations
x x x." The MTC scheduled petitioners arraignment in
February 1997. However, on petitioners motion, the MTC
issued a Consolidated Order on 28 April 1997 ("Consolidated
Order"), granting partial reconsideration to its Joint Order and
quashing the Informations for violation of PD 1067 and PD
984. The MTC maintained the Informations for violation of
RA 7942 and Article 365 of the RPC. The MTC held:
[T]he 12 Informations have common allegations of pollutants
pointing to "mine tailings" which were precipitately
discharged into the Makulapnit and Boac Rivers due to breach
caused on the Tapian drainage/tunnel due to negligence or
failure to institute adequate measures to prevent pollution and
siltation of the Makulapnit and Boac River systems, the very
term and condition required to be undertaken under the
Environmental Compliance Certificate issued on April 1,
1990.
The allegations in the informations point to same set [sic] of
evidence required to prove the single fact of pollution
constituting violation of the Water Code and the Pollution
Law which are the same set of evidence necessary to prove the
same single fact of pollution, in proving the elements
constituting violation of the conditions of ECC, issued
pursuant to the Philippine Mining Act. In both instances, the
terms and conditions of the Environmental Compliance
Certificate were allegedly violated. In other words, the same
set of evidence is required in proving violations of the three
(3) special laws.
After carefully analyzing and weighing the contending
arguments of the parties and after taking into consideration the
applicable laws and jurisprudence, the Court is convinced that
as far as the three (3) aforesaid laws are concerned, only the
Information for [v]iolation of Philippine Mining Act should be
maintained. In other words, the Informations for [v]iolation of
Anti-Pollution Law (PD 984) and the Water Code (PD 1067)
should be dismissed/quashed because the elements
constituting the aforesaid violations are absorbed by the same
elements which constitute violation of the Philippine Mining
Act (RA 7942).
Therefore, x x x Criminal Case[] Nos. 96-44, 96-45 and 96-46
for [v]iolation of the Water Code; and Criminal Case[] Nos.
96-47, 96-48 and 96-49 for [v]iolation of the Anti-Pollution
Law x x x are hereby DISMISSED or QUASHED and
Criminal Case[] Nos. 96-50, 96-51 and 96-52 for [v]iolation of
the Philippine Mining Act are hereby retained to be tried on
the merits.
The Information for [v]iolation of Article 365 of the Revised
Penal Code should also be maintained and heard in a full
blown trial because the common accusation therein is reckless
imprudence resulting to [sic] damage to property. It is the
damage to property which the law punishes not the negligent
act of polluting the water system. The prosecution for the
[v]iolation of Philippine Mining Act is not a bar to the
prosecution for reckless imprudence resulting to [sic] damage
to property.13
The MTC re-scheduled petitioners arraignment on the
remaining charges on 28 and 29 May 1997. In the hearing of
28 May 1997, petitioners manifested that they were willing to
be arraigned on the charge for violation of Article 365 of the
RPC but not on the charge for violation of RA 7942 as they
intended to appeal the Consolidated Order in so far as it
maintained the Informations for that offense. After making of
record petitioners manifestation, the MTC proceeded with the
arraignment and ordered the entry of "not guilty" pleas on the
charges for violation of RA 7942 and Article 365 of the RPC.
Petitioners subsequently filed a petition for certiorari with the
Regional Trial Court, Boac, Marinduque, assailing that portion
of the Consolidated Order maintaining the Informations for
violation of RA 7942. Petitioners petition was raffled to
Branch 94. For its part, public respondent filed an ordinary
appeal with the same court assailing that portion of the
Consolidated Order quashing the Informations for violation of
PD 1067 and PD 984. Public respondents appeal was raffled
to Branch 38. On public respondents motion, Branch 38
ordered public respondents appeal consolidated with
petitioners petition in Branch 94.
The Ruling of Branch 94
In its Resolution14 of 20 March 1998, Branch 94 granted
public respondents appeal but denied petitioners petition.
Branch 94 set aside the Consolidated Order in so far as it
quashed the Informations for violation of PD 1067 and PD
984 and ordered those charges reinstated. Branch 94 affirmed
the Consolidated Order in all other respects. Branch 94 held:
After a careful perusal of the laws concerned, this court is of
the opinion that there can be no absorption by one offense of
the three other offenses, as [the] acts penalized by these laws
are separate and distinct from each other. The elements of
proving each violation are not the same with each other.
Concededly, the single act of dumping mine tailings which
resulted in the pollution of the Makulapnit and Boac rivers
was the basis for the information[s] filed against the accused
each charging a distinct offense. But it is also a well-
established rule in this jurisdiction that
"A single act may offend against two or more entirely distinct
and unrelated provisions of law, and if one provision requires
proof of an additional fact or element which the other does
not, an acquittal or conviction or a dismissal of the
information under one does not bar prosecution under the
other. x x x."
xxxx
[T]he different laws involve cannot absorb one another as the
elements of each crime are different from one another. Each of
these laws require [sic] proof of an additional fact or element
which the other does not although they stemmed from a single
act.15
Petitioners filed a petition for certiorari with the Court of
Appeals alleging that Branch 94 acted with grave abuse of
discretion because (1) the Informations for violation of PD
1067, PD 984, RA 7942 and the Article 365 of the RPC
"proceed from and are based on a single act or incident of
polluting the Boac and Makalupnit rivers thru dumping of
mine tailings" and (2) the duplicitous nature of the
Informations contravenes the ruling in People v.
Relova.16Petitioners further contended that since the acts
complained of in the charges for violation of PD 1067, PD
984, and RA 7942 are "the very same acts complained of" in
the charge for violation of Article 365 of the RPC, the latter
absorbs the former. Hence, petitioners should only be
prosecuted for violation of Article 365 of the RPC. 17
The Ruling of the Court of Appeals
In its Decision of 5 November 2001, the Court of Appeals
affirmed Branch 94s ruling. The appellate court held:
The records of the case disclose that petitioners filed a motion
to quash the aforementioned Informations for being
duplicitous in nature. Section 3 of Rule 117 of the Revised
Rules of Court specifically provides the grounds upon which
an information may be quashed. x x x
xxxx
[D]uplicity of Informations is not among those included in x x
x [Section 3, Rule 117].
xxxx
We now go to petitioners claim that the resolution of the
public respondent contravened the doctrine laid down in
People vs. Relova for being violative of their right against
multiple prosecutions.
In the said case, the Supreme Court found the Peoples
argument with respect to the variances in the mens rea of the
two offenses being charged to be correct. The Court, however,
decided the case in the context of the second sentence of
Article IV (22) of the 1973 Constitution (now under Section
21 of Article III of the 1987 Constitution), rather than the first
sentence of the same section. x x x
xxxx
[T]he doctrine laid down in the Relova case does not squarely
apply to the case at Bench since the Informations filed against
the petitioners are for violation of four separate and distinct
laws which are national in character.
xxxx
This Court firmly agrees in the public respondents
understanding that the laws by which the petitioners have been
[charged] could not possibly absorb one another as the
elements of each crime are different. Each of these laws
require [sic] proof of an additional fact or element which the
other does not, although they stemmed from a single act. x x x
xxxx
[T]his Court finds that there is not even the slightest indicia of
evidence that would give rise to any suspicion that public
respondent acted with grave abuse of discretion amounting to
excess or lack of jurisdiction in reversing the Municipal Trial
Courts quashal of the Informations against the petitioners for
violation of P.D. 1067 and P.D. 984. This Court equally finds
no error in the trial courts denial of the petitioners motion to
quash R.A. 7942 and Article 365 of the Revised Penal Code. 18
Petitioners sought reconsideration but the Court of Appeals
denied their motion in its Resolution of 14 March 2002.
Petitioners raise the following alleged errors of the Court of
Appeals:
I. THE COURT OF APPEALS COMMITTED A
R[E]VERSIBLE ERROR IN MAINTAINING THE
CHARGES FOR VIOLATION OF THE
PHILIPPINE MINING ACT (R.A. 7942) AND
REINSTATING THE CHARGES FOR
VIOLATION OF THE WATER CODE (P.D. 1067)
AND POLLUTION CONTROL LAW (P.D. 984),
CONSIDERING THAT:
A. THE INFORMATIONS FOR
VIOLATION OF THE WATER CODE
(P.D. 1067), THE POLLUTION CONTROL
LAW (P.D. 984), THE PHILIPPINE
MINING ACT (R.A. 7942) AND ARTICLE
365 OF THE REVISED PENAL CODE
PROCEED FROM AND ARE BASED ON
A SINGLE ACT OR INCIDENT OF
POLLUTING THE BOAC AND
MAKULAPNIT RIVERS THRU
DUMPING OF MINE TAILINGS.
B. THE PROSECUTION OF
PETITIONERS FOR DUPLICITOUS AND
MULTIPLE CHARGES CONTRAVENES
THE DOCTRINE LAID DOWN IN
PEOPLE VS. RELOVA, 148 SCRA 292
[1986 THAT "AN ACCUSED SHOULD
NOT BE HARASSED BY MULTIPLE
PROSECUTIONS FOR OFFENSES
WHICH THOUGH DIFFERENT FROM
ONE ANOTHER ARE NONETHELESS
EACH CONSTITUTED BY A COMMON
SET OR OVERLAPPING SETS OF
TECHNICAL ELEMENTS."
II. THE COURT OF APPEALS COMMITTED A
REVERSIBLE ERROR IN RULING THAT THE
ELEMENT OF LACK OF NECESSARY OR
ADEQUATE PRECAUTION, NEGLIGENCE,
RECKLESSNESS AND IMPRUDENCE UNDER
ARTICLE 356 [sic] OF THE REVISED PENAL
CODE DOES NOT FALL WITHIN THE AMBIT
OF ANY OF THE ELEMENTS OF THE
PERTINENT PROVISIONS OF THE WATER
CODE, POLLUTION CONTROL LAW AND
PHILIPPINE MINING ACT CHARGED AGAINST
PETITIONERS[.]19
The Issues
The petition raises these issues:
(1) Whether all the charges filed against petitioners
except one should be quashed for duplicity of charges
and only the charge for Reckless Imprudence
Resulting in Damage to Property should stand; and
(2) Whether Branch 94s ruling, as affirmed by the
Court of Appeals, contravenes People v. Relova.
The Ruling of the Court
The petition has no merit.
No Duplicity of Charges in the Present Case
Duplicity of charges simply means a single complaint or
information charges more than one offense, as Section 13 of
Rule 11020 of the 1985 Rules of Criminal Procedure clearly
states:
Duplicity of offense. A complaint or information must
charge but one offense, except only in those cases in which
existing laws prescribe a single punishment for various
offenses.
In short, there is duplicity (or multiplicity) of charges when a
single Information charges more than one offense.21
Under Section 3(e), Rule 11722 of the 1985 Rules of Criminal
Procedure, duplicity of offenses in a single information is a
ground to quash the Information. The Rules prohibit the filing
of such Information to avoid confusing the accused in
preparing his defense.23 Here, however, the prosecution
charged each petitioner with four offenses, with each
Information charging only one offense. Thus, petitioners
erroneously invoke duplicity of charges as a ground to quash
the Informations. On this score alone, the petition deserves
outright denial.
The Filing of Several Charges is Proper
Petitioners contend that they should be charged with one
offense only Reckless Imprudence Resulting in Damage to
Property because (1) all the charges filed against them
"proceed from and are based on a single act or incident of
polluting the Boac and Makalupnit rivers thru dumping of
mine tailings" and (2) the charge for violation of Article 365
of the RPC "absorbs" the other charges since the element of
"lack of necessary or adequate protection, negligence,
recklessness and imprudence" is common among them.
The contention has no merit.
As early as the start of the last century, this Court had ruled
that a single act or incident might offend against two or more
entirely distinct and unrelated provisions of law thus justifying
the prosecution of the accused for more than one
offense.24 The only limit to this rule is the Constitutional
prohibition that no person shall be twice put in jeopardy of
punishment for "the same offense." 25 In People v.
Doriquez,26 we held that two (or more) offenses arising from
the same act are not "the same"
x x x if one provision [of law] requires proof of an additional
fact or element which the other does not, x x x. Phrased
elsewise, where two different laws (or articles of the same
code) define two crimes, prior jeopardy as to one of them is no
obstacle to a prosecution of the other, although both offenses
arise from the same facts, if each crime involves some
important act which is not an essential element of the
other.27 (Emphasis supplied)
Here, double jeopardy is not at issue because not all of its
elements are present.28 However, for the limited purpose of
controverting petitioners claim that they should be charged
with one offense only, we quote with approval Branch 94s
comparative analysis of PD 1067, PD 984, RA 7942, and
Article 365 of the RPC showing that in each of these laws on
which petitioners were charged, there is one essential element
not required of the others, thus:
In P.D. 1067 (Philippines Water Code), the additional element
to be established is the dumping of mine tailings into the
Makulapnit River and the entire Boac River System without
prior permit from the authorities concerned. The gravamen of
the offense here is the absence of the proper permit to dump
said mine tailings. This element is not indispensable in the
prosecution for violation of PD 984 (Anti-Pollution Law),
[RA] 7942 (Philippine Mining Act) and Art. 365 of the
Revised Penal Code. One can be validly prosecuted for
violating the Water Code even in the absence of actual
pollution, or even [if] it has complied with the terms of its
Environmental Compliance Certificate, or further, even [if] it
did take the necessary precautions to prevent damage to
property.
In P.D. 984 (Anti-Pollution Law), the additional fact that must
be proved is the existence of actual pollution. The gravamen is
the pollution itself. In the absence of any pollution, the
accused must be exonerated under this law although there was
unauthorized dumping of mine tailings or lack of precaution
on its part to prevent damage to property.
In R.A. 7942 (Philippine Mining Act), the additional fact that
must be established is the willful violation and gross neglect
on the part of the accused to abide by the terms and conditions
of the Environmental Compliance Certificate, particularly that
the Marcopper should ensure the containment of run-off and
silt materials from reaching the Mogpog and Boac Rivers. If
there was no violation or neglect, and that the accused
satisfactorily proved [sic] that Marcopper had done everything
to ensure containment of the run-off and silt materials, they
will not be liable. It does not follow, however, that they cannot
be prosecuted under the Water Code, Anti-Pollution Law and
the Revised Penal Code because violation of the
Environmental Compliance Certificate is not an essential
element of these laws.
On the other hand, the additional element that must be
established in Art. 365 of the Revised Penal Code is the lack
of necessary or adequate precaution, negligence, recklessness
and imprudence on the part of the accused to prevent damage
to property. This element is not required under the previous
laws. Unquestionably, it is different from dumping of mine
tailings without permit, or causing pollution to the Boac river
system, much more from violation or neglect to abide by the
terms of the Environmental Compliance Certificate.
Moreover, the offenses punished by special law are mal[a]
prohibita in contrast with those punished by the Revised Penal
Code which are mala in se.29
Consequently, the filing of the multiple charges against
petitioners, although based on the same incident, is consistent
with settled doctrine.
On petitioners claim that the charge for violation of Article
365 of the RPC "absorbs" the charges for violation of PD
1067, PD 984, and RA 7942, suffice it to say that a mala in se
felony (such as Reckless Imprudence Resulting in Damage to
Property) cannot absorb mala prohibita crimes (such as those
violating PD 1067, PD 984, and RA 7942). What makes the
former a felony is criminal intent (dolo) or negligence (culpa);
what makes the latter crimes are the special laws enacting
them.
People v. Relova not in Point
Petitioners reiterate their contention in the Court of Appeals
that their prosecution contravenes this Courts ruling in People
v. Relova. In particular, petitioners cite the Courts statement
in Relova that the law seeks to prevent harassment of the
accused by "multiple prosecutions for offenses which though
different from one another are nonetheless each constituted by
a common set or overlapping sets of technical elements."
This contention is also without merit.1avvphil.net
The issue in Relova is whether the act of the Batangas Acting
City Fiscal in charging one Manuel Opulencia ("Opulencia")
with theft of electric power under the RPC, after the latter had
been acquitted of violating a City Ordinance penalizing the
unauthorized installation of electrical wiring, violated
Opulencias right against double jeopardy. We held that it did,
not because the offenses punished by those two laws were the
same but because the act giving rise to the charges was
punished by an ordinance and a national statute, thus falling
within the proscription against multiple prosecutions for the
same act under the second sentence in Section 22, Article IV
of the 1973 Constitution, now Section 21, Article III of the
1987 Constitution. We held:

The petitioner concludes that:

"The unauthorized installation punished by the ordinance [of

Batangas City] is not the same as theft of electricity [under the
Revised Penal Code]; that the second offense is not an
attempt to commit the first or a frustration thereofand that the
second offense is not necessarily included in the offense
charged in the first information."

The above argument[ ] made by the petitioner [is] of course

correct. This is clear both from the express terms of the
constitutional provision involved which reads as follows:

"No person shall be twice put in jeopardy of punishment for

the same offense. If an act is punished by a law and an
ordinance, conviction or acquittal under either shall constitute
a bar to another prosecution for the same act." x x x

and from our case law on this point. The basic difficulty with
the petitioners position is that it must be examined, not under
the terms of the first sentence of Article IV (22) of the 1973
Constitution, but rather under the second sentence of the same
section. The first sentence of Article IV (22) sets forth the
general rule: the constitutional protection against double
jeopardy is not available where the second prosecution is for
an offense that is different from the offense charged in the first
or prior prosecution, although both the first and second
offenses may be based upon the same act or set of acts. The
second sentence of Article IV (22) embodies an exception to
the general proposition: the constitutional protection, against
double jeopardy is available although the prior offense
charged under an ordinance be different from the offense
charged subsequently under a national statute such as the
Revised Penal Code, provided that both offenses spring from
the same act or set of acts. x x x30 (Italicization in the original;
boldfacing supplied)

Thus, Relova is no authority for petitioners claim against

multiple prosecutions based on a single act not only because
the question of double jeopardy is not at issue here, but also
because, as the Court of Appeals held, petitioners are being
prosecuted for an act or incident punished by four national
statutes and not by an ordinance and a national statute. In
short, petitioners, if ever, fall under the first sentence of
Section 21, Article III which prohibits multiple prosecution for
the same offense, and not, as in Relova, for offenses arising
from the same incident.

WHEREFORE, we DENY the petition. We AFFIRM the

Decision dated 5 November 2001 and the Resolution dated 14
March 2002 of the Court of Appeals.

SO ORDERED.