SALES VS.

SANDIGANBAYAN
369 SCRA 293 G.R. NO. 143802; 16 NOV 2001

Facts:

The petitioner, the incumbent mayor of Pagudpud Ilocos Norte, shot the
former mayor and his political rival Atty. Benemerito. After the shooting, he
surrendered himself and hence the police inspector and wife of the victim filed
a criminal complaint for murder against him.

The judge after conducting the preliminary examination (p.e. for brevity)
found probable cause and issued a warrant of arrest. Also after conducting the
preliminary investigation (p.i. for brevity), he issued a resolution forwarding
the case to the prosecutor for appropriate action.

Petitioner received a subpoena directing him to file his counter affidavit,

affidavit of witnesses and other supporting documents. He did it the following
day. While proceedings are ongoing, he filed a petition for habeas corpus with
the C.A alleging that: the warrant was null and void because the judge who
issued it was a relative by affinity of the private respondent and the p.e. and
the p.i. were illegal and irregular as the judge doesn’t have jurisdiction on the
case.

The C.A. granted the petition holding that the judge was a relative by affinity
by 3rd degree to the private respondent and the p.i. he conducted has 2
stages, the p.e. and the p.i. proper.

The proceeding now consists only of one stage. He conducted the requisite
investigation prior to the issuance of warrant of arrest. Moreover he did not
complete it. He only examined the witness of the complainant. But the
prosecution instead of conducting p.i. of his own forwarded the records to the
Ombudsman (OMB for brevity) for the latter to conduct the same.

The OMB directed the petitioner to submit his counter affidavit, but he did not
comply with it finding the same superfluous. The graft investigator
recommended the filing of information for murder which the OMB approved.
Petitioner received a copy of the resolution but prevented seeking
reconsideration thereof he filed a motion to defer issuance of warrant of arrest
pending the determination of probable cause.

The Sandiganbayan denied the motion.

This is now a petition for review on the decision of the Sandiganbayan.

ISSUES:

(1) Whether or Not the OMB followed the procedure in conducting preliminary
investigation.

(2) Whether or Not petitioner was afforded an opportunity to be heard and to

submit controverting evidence.

HELD:

The proper procedure in the conduct of preliminary investigation was not

followed because of the following reasons.

Firstly, the preliminary investigation was conducted by 3 different

investigators, none of whom completed the preliminary investigation. There
was not one continuous proceeding but rather, cases of passing the buck, the
last one being the OMB throwing the buck to the Sandiganbayan.

Secondly, the charge of murder is a non bailable offense. The gravity of the
offense alone should have merited a deeper and more thorough preliminary
investigation. The OMB did nothing of the sort but wallowed the resolution of
the graft investigator. He did a worse job than the judge, by actually adopting
the resolution of the graft investigator without doing anything and threw
everything to the Sandiganbayan for evaluation.

Thirdly, a person under preliminary investigation by the OMB is entitled to a

motion for reconsideration, as maintained by the Rules of Procedure by the
OMB. The filing of the motion for reconsideration is an integral part of the
preliminary investigation proper. The denial thereof is tantamount to the
denial of the right itself to a preliminary investigation. This fact alone renders
preliminary investigation conducted in this case incomplete.

And lastly, it was patent error for the Sandiganbayan to have relied purely on
the OMB’s certification of probable cause given the prevailing facts of the case
much more so in the face of the latter’s flawed report and one side factual
findings.

The court cannot accept the Sandiganbayan’s assertion of having found

probable cause on its own, considering the OMB’s defective report and
findings, which merely relied on the testimonies of the witnesses for the
prosecution and disregarded the evidence for the defense.

Judgment is rendered setting aside the resolution of the Sandiganbayan,

ordering the Sandiganbayan to quash the warrant of arrest and remanding
the OMB for completion of the preliminary investigation.
DISUCUSSION RE: PRELIMINARY INVESTIGATION

The purpose of a preliminary investigation or a previous inquiry of some kind,

before an accused person is placed on trial, is to secure the innocent against
hasty, malicious and oppressive prosecution and to protect him from an open
and public accusation of a crime, from the trouble, expenses and anxiety of a
public trial.

Also intended to protect the state from having to conduct useless and
expensive trials.

While the right is statutory rather than constitutional in its fundament, it is a

component part of due process in criminal justice. The right to have a
preliminary investigation conducted before being bound over to trial for a
criminal offense and hence formally at risk of incarceration or some other
penalty, is not a mere formal or technical right; it is a substantive right. To
deny the accused’s claim to a preliminary investigation would be to deprive
him of the full measure of his right to due process.

The officer conducting the same investigates or inquires into the facts
concerning the commission of the crime with the end in view of determining
whether or not an information may be prepared against the accused.

A preliminary investigation is in effect a realistic judicial appraisal of the merits

of the case.

Sufficient proof of the guilt of the accused must be adduced so that when the
case is tried, the trial court may not be bound as a matter of law to order an
acquittal. A preliminary investigation has been called a judicial inquiry. It is a
judicial proceeding. An act becomes a judicial proceeding when there is an
opportunity to be heard and for the production of and weighing of evidence,
and a decision is rendered thereon.

The authority of a prosecutor or investigating officer duly empowered to

preside or to conduct a preliminary investigation is no less than a municipal
judge or even a regional trial court judge. He is and must be considered to be
a quasi-judicial officer because a preliminary investigation is considered a
judicial proceeding.
 BAYTAN VS. COMELEC
G.R. No. 153945 February 4, 2003

CARPIO, J.:
FACTS: Petitioners, Reynato Baytan, Reynaldo Baytan and Adrian Baytan were on
their way to register for the May 1998 elections when they met the newly elected
Barangay Captain, Roberto Ignacio, in Barangay 18, Zone II of Cavite City, who led
them to register in Precinct No. 83-A of Barangay 18.

Upon realizing that their residence is situated within the jurisdiction of Barangay 28
not Barangay 18, petitioners proceeded to Precinct 129-A of Barangay 28 and
registered anew.

Subsequently, petitioners sent a letter to former COMELEC Assistant Executive

Director Jose Pio O. Joson requesting for advice on how to cancel their previous
registration.

Petitioners’ Voters Registration Records were forwarded to the Provincial Election

Supervisor, Atty. Juanito V. Ravanzo, for evaluation, who, subsequently,
recommended filing an information for double registration against petitioners. The
COMELEC affirmed Ravanzo’s resolution. Petitioners moved for reconsideration,
which, was denied by COMELEC en banc.

Hence, this petition.

ISSUE: Whether COMELEC acted with grave abuse of discretion when it

recommended the prosecution of petitioners for double registration despite lack of
intent and substantial compliance with the requirement of cancellation of previous
registration.
HELD: No. There is no question that petitioners registered twice on different days
and in different precincts without canceling their previous registration. Since "double
registration" is malum prohibitum, petitioners’ claim of lack of intent to violate the
law is inconsequential. Neither is the letter to Joson an application to cancel their
previous registration. This letter was sent after their second registration was
accomplished and after the election officer of Cavite City had already reported their
act of double registration to a higher official.
Moreover, petitioners’ claims of honest mistake, good faith and substantial
compliance with the Election Code’s requirement of cancellation of previous
registration are matters of defense best ventilated in the trial proper rather than at
the preliminary investigation. The established rule is that a preliminary
investigation is not the occasion for the full and exhaustive display of the
parties’ evidence. It is for the presentation of such evidence only as may
engender a well-grounded belief that an offense has been committed and
the accused is probably guilty thereof.

PADERANGA VS. DRILON

 G.R. 96080, April 19, 1991

DOCTRINE:

Definition of Preliminary Examination – Generally inquisitorial, often only

means of discovering the persons who may be reasonably charged with a
crime, to enable the fiscal to prepare his complaint or information.

The institution of a criminal action depends upon the sound discretion of the
Fiscal. He has the quasi-judicial discretion to determine wither or not a
criminal case should be filed in Court.

General Rule:

Injunction will not be granted to restrain a criminal prosecution

Exception (Brocka vs Enrile):

• Afford adequate protection to the constitutional rights of the accused

• Necessary for the orderly administration of justice or to avoid
oppression or multiplicity of actions
• When there is a prejudicial question
• When the acts of the officers are without or excess of authority
• Double jeopardy is clearly apparent
• When the Court has no jurisdiction over the offense
• A case of persecution rather than prosecution
• The charges are manifestly false and motivated by vengeance
• Clearly no Prima Facie case against the accused

The right of the accused to ask clarificatory questions is not ABSOLUTE.

QUANTUM OF EVIDENCE required in preliminary investigation is such evidence

sufficient to “engender” a well-founded belief as to the fact of the omission of
a crime and respondents probable guilt.

FACTS:
Petitioner avers that he was deprived of full preliminary investigation because
when the resolution was issued there were still incidents pending such as the
validity of testimonies and affidavits of Roxas, Hanpol as bases for preliminary
investigation, the polygraph test of Roxas which he failed, the clarifactory
question that were supposed to be propounded by petitioner’s counsel to
Roxas and Hanapol. He also claims he was deprived of the opportunity to file
his counter-affidavit to the subpoena of April 25 - BUT THESE CONTENTIONS
ARE WITHOUT MERIT.

Petitioner also alleged that there is no prima facie evidence, or probable cause,
or sufficient justification to hold him to a tedious and prolonged public trial,
on the basis of the following grounds:

• the questioned resolution of respondent Gingoyon is full of factual

misrepresentations or misapprehensions;
• respondent’s reliance on the decision of the Regional Trial Court against
Felipe Galarion suffers from constitutional and procedural infirmities
considering that petitioner was not a party thereto, much less was he
given any opportunity to comment on or rebut the prosecution evidence;
• reliance on Rogelio Hanopol’s testimony is likewise “contemptible,” it
being merely hearsay in addition to the fact that petitioner was never
given the opportunity to cross-examine Hanopol at the time he testified
in court;
• the affidavit of Roxas dated March 30, 1989, which is the only evidence
against petitioner, has been rendered nugatory by his affidavit of
retraction dated June 20, 1990.

ISSUE:

Whether the Fiscal have the jurisdiction to determine the probable cause of
the accused.

HELD:

Yes, Preliminary investigation is generally inquisitorial, and it is often the only

means of discovering the persons who may be reasonably charged with a
crime, to enable the fiscal to prepare his complaint or information. It is not a
trial of the case on the merits and has no purpose except that of determining
whether a crime has been committed and whether there is probable cause to
believe that the accused is guilty thereof, and it does not place the person
against whom it is taken in jeopardy. The institution of a criminal action
depends upon the sound discretion of the fiscal. He has the quasi-judicial
discretion to determine whether or not a criminal case should be filed in court.
Hence, the general rule is that an injunction will not be granted to restrain a
criminal prosecution. The fiscal has the discretion to determine whether or
not he will propound these questions to the parties or witnesses concerned.
The quantum of evidence now required in preliminary investigation is such
evidence sufficient to “engender a well-founded belief” as to the fact of the
commission of a crime and the respondent’s probable guilt thereof. A
preliminary investigation is not the occasion for the full and exhaustive display
of the parties’ evidence; it is for the presentation of such evidence only as
may engender a well-grounded belief that an offense has been committed and
that the accused is probably guilty thereof.

We are in accord with the state prosecutor’s findings in the case at bar that
there exists prima facie evidence of petitioner’s involvement in the
commission of the crime, it being sufficiently supported by the evidence
presented and the facts obtaining therein.

GENERAL RULE:

The institution of a criminal action depends upon the sound discretion of the
fiscal. He has the quasi-judicial discretion to determine whether or not a
criminal case should be filed in court. Hence, the general rule is that an
injunction will not be granted to restrain a criminal prosecution

EXCEPTIONS: Citing the case of Brocka et al vs Enrile

• To afford adequate protection to the constitutional rights of the accused;

• When necessary for the orderly administration of justice or to avoid
oppression or multiplicity of actions;
• When there is a pre-judicial question which is sub judice;
• When the acts of the officer are without or in excess of authority;
• Where the prosecution is under an invalid law, ordinance or regulation;
• When double jeopardy is clearly apparent;
• Where the court has no jurisdiction over the offense;
• Where it is a case of persecution rather than prosecution;
• Where the charges are manifestly false and motivated by the lust for
vengeance; and
• When there is clearly no prima facie case against the accused and a motion
to quash on that ground has been denied.

In this case, the circumstances of the case do not fall in any of the exceptions.

As to petitioner’s contention that he was not granted the opportunity of cross-

examination:

It is a fundamental principle that the accused in a preliminary investigation

has no right to cross-examine the witnesses which the complainant may
present.
Section 3, Rule 112 of the Rules of Court expressly provides that the
respondent shall only have the right to submit a counter-affidavit, to examine
all other evidence submitted by the complainant and, where the fiscal sets a
hearing to propound clarificatory questions to the parties or their witnesses,
to be afforded an opportunity to be present but without the right to examine
or cross-examine.

Thus, even if petitioner was not given the opportunity to cross-examine

Galarion and Hanopol at the time they were presented to testify during the
separate trial of the case against Galarion and Roxas, he cannot assert any
legal right to cross-examine them at the preliminary investigation precisely
because such right was never available to him.

The admissibility or inadmissibility of said testimonies should be ventilated

before the trial court during the trial proper and not in the preliminary
investigation.

GO VS. COURT OF APPEALS

206 SCRA 138
G.R. No. 101837, February 11, 1992

FACTS:
An information was filed charging herein petitioner Rolito Go for murder
before the Regional Trial Court of Metro Manila. Petitioner voluntarily
presented himself together with his two lawyers to the police upon obtaining
knowledge of being hunted by the latter. However, he was immediately
detained and denied his right of a preliminary investigation unless he
executes and sings a waiver of the provisions of Article 125 of the Revised
Penal Code.

Upon omnibus motion for immediate release on recognizance or on bail and

proper preliminary investigation on the ground that his warrantless arrest was
unlawful and no preliminary investigation was conducted before the
information was filed, which is violative of his rights, the same was granted
but later on reversed by the lower court and affirmed by the Court of Appeals.

The appellate court in sustaining the decision of the lower court held that
petitioner's warrantless arrest was valid in view of the fact that the offense
was committed, the petitioner was clearly identified and there exists valid
information for murder filed against petitioner.

ISSUE:

WON warrantless arrest of petitioner was lawful.

WON petitioner effectively waived his right to preliminary investigation.

HELD:

The general rule on arrest provides that the same is legitimate if effected with
a valid warrant. However, there are instances specifically enumerated under
the law when a warrantless arrest may be considered lawful. Despite that, the
warrantless arrest of herein petitioner Rolito Go does not fall within the terms
of said rule. The police were not present at the time of the commission of the
offense, neither do they have personal knowledge on the crime to be
committed or has been committed not to mention the fact that petitioner was
not a prisoner who has escaped from the penal institution.

In view of the above, the allegation of the prosecution that petitioner needs
to sign a waiver of the provisions of Article 125 of the Revised Penal Code
before a preliminary investigation may be conducted is baseless. In this
connection, petitioner has all the right to ask for a preliminary investigation
to determine whether is probable cause that a crime has been committed and
that petitioner is probably guilty thereof as well as to prevent him from the
hassles, anxiety and aggravation brought by a criminal proceeding. This
reason of the accused is substantial, which he should not be deprived of.

On the other hand, petitioner did not waive his right to have a preliminary
investigation contrary to the prosecutor's claim. The right to preliminary
investigation is deemed waived when the accused fails to invoke it before or
at the time of entering a plea at arraignment. The facts of the case show that
petitioner insisted on his right to preliminary investigation before his
arraignment and he, through his counsel denied answering questions before
the court unless they were afforded the proper preliminary investigation.

For the above reasons, the petition was granted and the ruling of the appellate
court was set aside and nullified.

The Supreme Court however, contrary to petitioner's allegation, declared that

failure to accord the right to preliminary investigation did not impair the
validity of the information charging the latter of the crime of murder.

ALTERNATIVE REASON:

Petitioner and prosecutor err in relying on Umil v. Ramos, wherein the Court upheld
the warrantless arrest as valid effected 1 to 14 days from actual commission of the
offenses, which however constituted “continuing crimes,” i.e. subversion,
membership in an outlawed organization, etc. There was no lawful warrantless arrest
under Section 5, Rule 113. This is because the arresting officers were not actually
there during the incident, thus they had no personal knowledge and their information
regarding petitioner were derived from other sources. Further, Section 7, Rule 112,
does not apply.

Petitioner was not arrested at all, as when he walked in the police station, he neither
expressed surrender nor any statement that he was or was not guilty of any crime.
When a complaint was filed to the prosecutor, preliminary investigation
should have been scheduled to determine probable cause. Prosecutor made
a substantive error, petitioner is entitled to preliminary investigation,
necessarily in a criminal charge, where the same is required appear thereat.
Petition granted, prosecutor is ordered to conduct preliminary investigation,
trial for the criminal case is suspended pending result from preliminary
investigation, petitioner is ordered released upon posting a bail bond.

DOROMAL VS. SANDIGANBAYAN

G. R. No. 85468, September 07, 1989

FACTS:
Quintin S. Doromal, a former Commissioner of the Presidential Commission
on Good Government (PCGG), for violation of the Anti-Graft and Corrupt
Practices Act (RA 3019), Sec. 3(h), in connection with his shareholdings and
position as president and director of the Doromal International Trading
Corporation (DITC) which submitted bids to supply P61 million worth of
electronic, electrical, automotive, mechanical and airconditioning equipment
to the Department of Education, Culture and Sports (or DECS) and the
National Manpower and Youth Council (or NMYC).
An information was then filed by the “Tanodbayan” against Doromal for the
said violation and a preliminary investigation was conducted.
The petitioner then filed a petition for certiorari and prohibition questioning
the jurisdiction of the “Tanodbayan” to file the information without the
approval of the Ombudsman.
The Supreme Court held that the incumbent Tanodbayan (called Special
Prosecutor under the 1987 Constitution and who is supposed to retain powers
and duties NOT GIVEN to the Ombudsman) is clearly without authority to
conduct preliminary investigations and to direct the filing of criminal cases
with the Sandiganbayan, except upon orders of the Ombudsman.
Subsequently annulling the information filed by the “Tanodbayan”.
A new information, duly approved by the Ombudsman, was filed in the
Sandiganbayan, alleging that the Doromal, a public officer, being then a
Commissioner of the Presidential Commission on Good Government, did then
and there wilfully and unlawfully, participate in a business through the
Doromal International Trading Corporation, a family corporation of which he
is the President, and which company participated in the biddings conducted
by the Department of Education, Culture and Sports and the National
Manpower & Youth Council, which act or participation is prohibited by law and
the constitution.
The petitioner filed a motion to quash the information on the ground that it
was invalid since there had been no preliminary investigation for the new
information that was filed against him.
The motion was denied by Sandiganbayan claiming that another preliminary
investigation is unnecessary because both old and new informations involve
the same subject matter.

ISSUES:
Whether or not preliminary investigation is necessary even if both
informations involve the same subject matter.
Whether or not the information shall be effected as invalid due to the absence
of preliminary investigation.

HELD:

YES. The right of the accused to a preliminary investigation is "a substantial

one." Its denial over his opposition is a "prejudicial error, in that it subjects
the accused to the loss of life, liberty, or property without due process of law"
provided by the Constitution.

Since the first information was annulled, the preliminary investigation

conducted at that time shall also be considered as void. Due to that fact, a
new preliminary investigation must be conducted.

NO. The absence of preliminary investigation does not affect the court's
jurisdiction over the case. Nor do they impair the validity of the information
or otherwise render it defective; but, if there were no preliminary
investigations and the defendants, before entering their plea, invite the
attention of the court to their absence, the court, instead of dismissing the
information should conduct such investigation, order the fiscal to conduct it or
remand the case to the inferior court so that the preliminary investigation may
be conducted.

WHEREFORE, the petition for certiorari and prohibition is granted. The

Sandiganbayan shall immediately remand Criminal Case No. 12893 to the
Office of the Ombudsman for preliminary investigation and shall hold in
abeyance the proceedings before it pending the result of such investigation.

WEBB, VS. DE LEON

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

FACTS:

On June 19, 1994, the National Bureau of Investigation (NBI) filed with the
Department of Justice a letter-complaint charging petitioners Hubert Webb,
Michael Gatchalian, Antonio J. Lejano and six (6) other persons with the crime
of Rape and Homicide of Carmela N. Vizconde, her mother Estrellita Nicolas-
Vizconde, and her sister Anne Marie Jennifer in their home at Number 80 W.
Vinzons, St., BF Homes Paranaque, Metro Manila on June 30, 1991.
Forthwith, the Department of Justice formed a panel of prosecutors headed
by Assistant Chief State Prosecutor Jovencio R. Zuno to conduct the
preliminary investigation.

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

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

Petitioners complain about the denial of their constitutional right to due

process and violation of their right to an impartial investigation. They also
assail the prejudicial publicity that attended their preliminary investigation.

ISSUES:

WON respondent Judges de Leon and Tolentino gravely abused their discretion
when they failed to conduct a preliminary examination before issuing warrants
of arrest against them.

WON the DOJ Panel denied them their constitutional right to due process
during their preliminary investigation.

HELD:

NO. The Court ruled that respondent judges did not gravely abuse their
discretion. In arrest cases, there must be a probable cause that a crime has
been committed and that the person to be arrested committed it. Section 6 of
Rule 112 simply provides that “upon filing of an information, the Regional Trial
Court may issue a warrant for the accused. Clearly the, our laws repudiate the
submission of petitioners that respondent judges should have conducted
“searching examination of witnesses” before issuing warrants of arrest against
them.

NO. There is no merit in this contention because petitioners were given all
the opportunities to be heard. The DOJ Panel precisely requested the parties
to adduce more evidence in their behalf and for the panel to study the
evidence submitted more fully.

NO. Petitioner’s argument lacks appeal for it lies on the faulty assumption that
the decision whom to prosecute is a judicial function, the sole prerogative of
the courts and beyond executive and legislative interference. In truth, the
prosecution of crimes appertains to the executive department of government
whose principal power and responsibility is to see that our laws are faithfully
executed. A necessary component of this power is the right to prosecute their
violators (See R.A. No. 6981 and section 9 of Rule 119 for legal basis).

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

ALLADO VS. DIOKNO

G.R. No. 113630

FACTS:

Petitioners, Diosdado Jose Allado and Roberto L. Mendoza, were both

implicated as the masterminds of the kidnapping and murder of Eugen
Alexander Van Twist.

An information for the said crime was filed against the petitioners primarily on
the strength of a sworn statement by Escolastico Umbal, who admitted that
he was among those who kidnapped and killed the victim upon the orders of
the petitioners. Thereafter, respondent judge, Roberto C. Diokno, ordered the
arrest of the petitioners and no bail was recommended.

Petitioners, contending that their arrests was effected whimsically as there is

no probable cause, questioned their arrests.

ISSUE:

Whether or not probable cause is present to warrant the order of arrest

against the petitioners.
HELD:

No, probable cause do not exist to merit the order of arrest against the
petitioners.

The probable cause test is an objective one, for in order that there be probable
cause the facts and circumstances must be such as would warrant a belief by
a reasonably discreet and prudent man that the accused is guilty of the crime
which has just been committed. There is serious doubt on Van Twest’s
reported death since the corpus delicti has not been established, nor have his
remains been recovered.

We are reminded of the leading case of U.S. v. Samarin, decided ninety-two

years ago where this Court ruled that when the supposed victim is wholly
unknown, his body not found, and there is but one witness who testifies to
the killing, the corpus delicti is not sufficiently proved.

In People v. Inting, we emphasized the important features of the constitutional

mandate: (a) The determination of probable cause is a function of the judge;
it is not for the provincial fiscal or prosecutor to ascertain. Only the judge and
the judge alone makes this determination; (b) The preliminary inquiry made
by a prosecutor does not bind the judge. It merely assists him in making the
determination of probable cause. The judge does not have to follow what the
prosecutor presents to him. By itself, the prosecutor’s certification of probable
cause is ineffectual. It is the report, the affidavits, the transcript of
stenographic notes (if any), and all other supporting documents behind the
prosecutor’s certification which are material in assisting the judge in his
determination of probable cause; and, (c) Judges and prosecutors alike should
distinguish the preliminary inquiry which determines probable cause for the
issuance of a warrant of arrest from the preliminary investigation proper which
ascertains whether the offender should be held for trial or released. Even if
the two inquiries be conducted in the course of one and the same proceeding,
there should be no confusion about their objectives. The determination of
probable cause for the warrant is made by the judge. The preliminary
investigation proper – whether or not there is reasonable ground to believe
that the accused is guilty of the offense charged and therefore, whether or not
he should be subjected to the expense, rigors and embarrassment of trial – is
a function of the prosecutor
The extrajudicial statement of Umbal suffers from material inconsistencies. In
Lim v. Felix, where we reiterated Soliven v. Makasiar and People v. Inting, we
said -

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

The extent of the Judge’s personal examination of the report and its annexes
depends on the circumstances of each case. We cannot determine beforehand
how cursory or exhaustive the Judge’s examination should be.

The Judge has to exercise sound discretion for, after all, the personal
determination is vested in the Judge by the Constitution. It can be as brief or
as detailed as the circumstances of each case require. To be sure, the judge
must go beyond the Prosecutor’s certification and investigation report
whenever necessary. He should call for the complainant and witnesses
themselves to answer the court’s probing questions when the circumstances
of the case so require.

RA 6770, Sections 11(4) (a), 15

Section 11. Structural Organization. — The authority and responsibility for the
exercise of the mandate of the Office of the Ombudsman and for the discharge
of its powers and functions shall be vested in the Ombudsman, who shall have
supervision and control of the said office.

(4) The Office of the Special Prosecutor shall, under the supervision and
control and upon the authority of the Ombudsman, have the following powers:

(a) To conduct preliminary investigation and prosecute criminal cases within

the jurisdiction of the Sandiganbayan;

(b) To enter into plea bargaining agreements; and

(c) To perform such other duties assigned to it by the Ombudsman.

The Special Prosecutor shall have the rank and salary of a Deputy
Ombudsman.

Section 15. Powers, Functions and Duties. — The Office of the Ombudsman
shall have the following powers, functions and duties:

(1) Investigate and prosecute on its own or on complaint by any person, any
act or omission of any public officer or employee, office or agency, when such
act or omission appears to be illegal, unjust, improper or inefficient.t has
primary jurisdiction over cases cognizable by the Sandiganbayan and, in the
exercise of this primary jurisdiction, it may take over, at any stage, from any
investigatory agency of Government, the investigation of such cases;

(2) Direct, upon complaint or at its own instance, any officer or employee of
the Government, or of any subdivision, agency or instrumentality thereof, as
well as any government-owned or controlled corporations with original
charter, to perform and expedite any act or duty required by law, or to stop,
prevent, and correct any abuse or impropriety in the performance of duties;

(3) Direct the officer concerned to take appropriate action against a public
officer or employee at fault or who neglect to perform an act or discharge a
duty required by law, and recommend his removal, suspension, demotion,
fine, censure, or prosecution, and ensure compliance therewith; or enforce its
disciplinary authority as provided in Section 21 of this Act: provided, that the
refusal by any officer without just cause to comply with an order of the
Ombudsman to remove, suspend, demote, fine, censure, or prosecute an
officer or employee who is at fault or who neglects to perform an act or
discharge a duty required by law shall be a ground for disciplinary action
against said officer;

(4) Direct the officer concerned, in any appropriate case, and subject to such
limitations as it may provide in its rules of procedure, to furnish it with copies
of documents relating to contracts or transactions entered into by his office
involving the disbursement or use of public funds or properties, and report
any irregularity to the Commission on Audit for appropriate action;

(5) Request any government agency for assistance and information necessary
in the discharge of its responsibilities, and to examine, if necessary, pertinent
records and documents;

(6) Publicize matters covered by its investigation of the matters mentioned in

paragraphs (1), (2), (3) and (4) hereof, when circumstances so warrant and
with due prudence: provided, that the Ombudsman under its rules and
regulations may determine what cases may not be made public: provided,
further, that any publicity issued by the Ombudsman shall be balanced, fair
and true;
(7) Determine the causes of inefficiency, red tape, mismanagement, fraud,
and corruption in the Government, and make recommendations for their
elimination and the observance of high standards of ethics and efficiency;

(8) Administer oaths, issue subpoena and subpoena duces tecum, and take
testimony in any investigation or inquiry, including the power to examine and
have access to bank accounts and records;

(9) Punish for contempt in accordance with the Rules of Court and under the
same procedure and with the same penalties provided therein;

(10) Delegate to the Deputies, or its investigators or representatives such

authority or duty as shall ensure the effective exercise or performance of the
powers, functions, and duties herein or hereinafter provided;

(11) Investigate and initiate the proper action for the recovery of ill-gotten
and/or unexplained wealth amassed after February 25, 1986 and the
prosecution of the parties involved therein.

The Ombudsman shall give priority to complaints filed against high ranking
government officials and/or those occupying supervisory positions, complaints
involving grave offenses as well as complaints involving large sums of money
and/or properties.
 VELASCO VS. CASACLANG
294 SCRA 192
FACTS:

Petitioner Laura Velasco questioned the authority of respondent Deputy

Ombudsman to conduct preliminary investigation, arguing that pursuant to
Section 11, par. (4), subpar. (a) of R.A. 6770, the Office of the Special
Prosecutor is vested with the power and authority to conduct preliminary
investigation and to prosecute criminal cases falling within the jurisdiction of
the Sandiganbayan and Section 17 of P.D. 1630 provides that the Office of
Tanodbayan (now Office of the Special Prosecutor) has the exclusive authority
to conduct preliminary investigation in all cases cognizable by the
Sandiganbayan.

ISSUE:

WON the Deputy Ombudsman is vested with power and authority to conduct
preliminary investigation.

YES. Under Section 2, Rule 112 of the 1985 Rules of Criminal Procedure, as
amended:

The following may conduct preliminary investigation:

1. Provincial or city fiscals and their assistants;

2. Judges of the Municipal Trial Courts and Municipal Circuit Trial Courts;
3. National and Regional state prosecutors; and
4. Such other officers as may be authorized by law.

On the other hand, Section 15, paragraph (1) of R.A. 6770, otherwise known
as The Ombudsman Act, provides:

The Office of the Ombudsman shall have the following powers, functions, and
duties:

(1) Investigate and prosecute on its own or on complaint by any person, any
act or omission of any public officer or employee, office, or agency, when such
act or omission appears to be illegal, unjust, improper or inefficient. It has a
primary jurisdiction over cases cognizable by the Sandiganbayan and, in the
exercise of this primary jurisdiction, it may take over, at any stage, from any
investigatory agency of Government, the investigation of such cases.
In light of the aforequoted provisions of law in point, it is beyond cavil that
the Ombudsman and his Deputies are, within legal contemplation, other
officers authorized by law to conduct preliminary investigation.

In Enrique Zaldivar vs. Sandiganbayan, this Court succinctly ruled, that :

Under the 1987 Constitution, the Ombudsman (as distinguished from the
incumbent Tanodbayan) is charged with the duty to:

Investigate on its own, or on complaint by any person, any act or omission of

any public official, employee, office or agency, when such act or omission
appears to be illegal, unjust improper, or inefficient. (Sec. 13, par. 1)

The Constitution likewise provides that:

The existing Tanodbayan shall hereafter be known as the Office of the Special
Prosecutor. It shall continue to function and exercise its power as now or
hereafter may be provided by law, except those conferred on the Office of the
Ombudsman created under this Constitution. (Article XI, Section 7)
[Underscoring, supplied].

Now then, in as much as the aforementioned duty is given to the Ombudsman,

the incumbent Tanodbayan (called Special Prosecutor under the 1987
Constitution and who is supposed to retain powers and duties NOT GIVEN to
the Ombudsman) is clearly without authority to conduct preliminary
investigations and to direct the filing of criminal cases with the
Sandiganbayan, except upon orders of the Ombudsman. This right to do so
was lost effective February 2, 1987. From that time, he has been divested of
such authority.

Under the present Constitution, the Special Prosecutor...is a mere subordinate

of the Tanodbayan (Ombudsman) and can investigate and prosecute cases
only upon the latters authority or order... Even his original power to issue
subpoena, which he still claims under Section 10 (d) of PD 1630, is now
deemed transferred to the Ombudsman, who may, however, retain it in the
Special Prosecutor in connection with the cases he is ordered to investigate.
[Underscoring, supplied]

So also, Section 3 of Administrative Order No. 07, otherwise known as The

Rules of Procedure of the Office of the Ombudsman, published in the May 1,
1990 issue of Manila Bulletin, states that:

Preliminary investigation may be conducted by any of the following:

1. Ombudsman Investigators;

2. Special Prosecuting Officers;

 3. Deputized Prosecutors;

4. Investigating Officials authorized by law to conduct preliminary

investigation;

5. Lawyers in the government service, so designated by the Ombudsman.

(Underscoring, supplied)

Neither can we discern any tenability in petitioners reliance on Section 17 of

P.D. 1630.[15] Said law, which took effect on July 18, 1979, was deemed
abrogated by Section 7, Article XI of the 1987 Philippine Constitution, which
reads:

The existing Tanodbayan shall hereafter be known as the Office of the Special
Prosecutor. It shall continue to function and exercise its powers as now and
hereafter may be provided by law, except those conferred on the Office of the
Ombudsman created under this Constitution.

(Underscoring supplied)

The powers, functions and duties of the Office of the Ombudsman are clearly
provided in Section 13, Article XI of the 1987 Charter, as follows:

(1) [to] investigate on its own, or on complaint by any person, any act or
omission of any public official, employee, office or agency, when such act
or omission appears to be illegal, unjust, improper, or inefficient.

(2) [to] direct, upon complaint or at its own instance, any public official or
employee of the Government, or any subdivision, agency or
instrumentality thereof, as well as of any government-owned or controlled
corporation with original charter, to perform and expedite any act or duty
required by law, or to stop, prevent, and correct any abuse or impropriety
in the performance of duties.

xxx

In line with the aforestated constitutional provisions, then President Corazon

C. Aquino signed Executive Order No. 244 limiting the Special Prosecutors
authority, thus:

Section 2 - The Office of the Special Prosecutor shall exercise powers presently
exercised by the Tanodbayan except those conferred on the Office of the
Ombudsman under the Constitution. (Underscoring, supplied)
Then, too, while Section 17 of P.D. No. 1630 provides, that:

The Office of Tanodbayan (now, Office of the Special Prosecutor) shall have
the exclusive authority to conduct preliminary investigation of all cases
cognizable by the Sandiganbayan...;

Section 11, subparagraph 4 (c) of R.A. No. 6770,[17] states, that:

The Office of the Special Prosecutor shall, under the supervision and control
and upon the authority of the Ombudsman, have the following powers:

(a) To conduct preliminary investigation and prosecute criminal cases within

the jurisdiction of the Sandiganbayan.

xxx

Unmistakably, the exclusive authority of the Office of the Tanodbayan (now

Office of the Special Prosecutor) under P. D. No. 1630 to conduct preliminary
investigation was not included in Section 11, subparagraph 4 (a) of R.A. No.
6770. Consequently, the irresistible conclusion that can be drawn unerringly
from the aforementioned statutory amendments is that the exclusive authority
of the Office of Special Prosecutor to conduct preliminary investigation has
become a thing of the past, and the Office of the Ombudsman has the power
to investigate and to conduct preliminary investigation.

Corollary to the investigative power of the Office of the Ombudsman is the

authority to lay down its own rules of procedure, as gleanable from the
following provisions of Section 13, subparagraph (8), Article XI of the 1987
Constitution:

The Office of the Ombudsman shall have the ... power ...[to]:

(8) Promulgate its rules of procedure and exercise such other powers or
perform such functions or duties as may be provided by law.

and Section 18 of R.A. No. 6770:

Rules of Procedure - (1) The Office of the Ombudsman shall promulgate its
rules of procedure for the effective exercise or performance of its powers,
functions and duties.

All things studiedly considered, we are therefore of the opinion, and so rule,
that the respondent Deputy Ombudsman has the power and authority to
conduct preliminary investigation under the attendant facts and
circumstances.
Similarly untenable is petitioners contention that respondent Deputy
Ombudsman could not, on his own initiative, determine what offense or
offenses subject Joint Affidavit-Complaint and its annexes charge.

With the vast powers vested in him by law, respondent Deputy Ombudsman
is definitely with authority and competence to look into and find out motu
proprio the nature of the accusation embodied in the said Joint Affidavit-
Complaint endorsed to him for the indictment of the herein petitioner and her
co-respondents under Rep. Act 3019 otherwise known as The Anti-Graft and
Corrupt Practices Act.

In accordance with Section 15, subparagraph (10) of R.A. No. 6770, the
powers, functions and duties of the Ombudsman may be delegated to his
Deputies, to ensure effective exercise of his powers. Embraced in the broad
powers of the Ombudsman is the discretionary power to define, supervise and
control the methodology and procedure his office may adopt in connection
with its investigative power.[18] Comformably, the respondent Deputy
Ombudsman has the authority to decide what offense or offenses to charge
on the basis of the evidence before him.

Section 1, Rule 112 of the 1985 Rules on Criminal Procedure, as amended,

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

To be sure, the respondent Deputy Ombudsman has direct supervision and

control over the preliminary investigation conducted by him. Absent any grave
abuse of discretion tainting it, his action is not subject to judicial review.

The propriety of endowing the Ombudsman with wide latitude of ministerial

and discretionary powers emanates from the vitality and importance of his
constitutional duty and function - to protect the people from inefficiency, red
tape, mismanagement, fraud, and corruption in the government.[19]

It bears stressing that the determination of the existence or absence of a

sustainable basis and ground for holding the respondent (petitioner here) for
trial is within the primary jurisdiction of the Ombudsman to undertake.[20]

Taking into account the same Affidavit-Complaint dated May 6, 1993, together
with the auditors Memorandum Report and findings sent to him by the
Commission on Audit, the respondent Deputy Ombudsman cannot be faulted
for conducting the requisite preliminary investigation against petitioner Laura
Velasco and the other respondents in OMB Case No. 0-90-0296. Sufficient
basis therefor has been duly laid.
Neither is the Court persuaded by petitioners imputation to respondent Deputy
Ombudsman of grave abuse of discretion in denying her motion to quash and
motion for reconsideration.

Section 4 (d) of Administrative Order No. 07, reads:

Procedure - The preliminary investigation of cases falling under the jurisdiction

of the Sandiganbayan and Regional Trial Courts shall be conducted in the
manner prescribed in Section 3, Rule 112 of the Rules of Court, subject to the
following provisions:

xxx

(d) No motion to dismiss shall be allowed except for lack of jurisdiction.

While Section 3, Rule 112 of the 1985 Rules on Criminal Procedure, as

amended, provides:

Procedure - Except as provided for in Section 7 hereof, no complaint or

information for an offense cognizable by the Regional Trial Court shall be filed
without a preliminary investigation having been first conducted in the
following manner:

xxx

(b) Within ten (10) days after the filing of the complaint, the investigating
officer shall either dismiss the same if he finds no ground to continue with the
inquiry, or issue a subpoena to the respondent, attaching thereto a copy of
the complaint, affidavits and other supporting documents. Within ten (10)
days from receipt thereof, the respondent shall submit counter-affidavits and
other supporting documents. He shall have the right to examine all other
evidence submitted by the complainant.

xxx

(f) Thereafter, the investigation shall be deemed concluded, and the

investigating officer shall resolve the case within ten (10) days therefrom.
Upon the evidence thus adduced, the investigating officer shall determine
whether or not there is sufficient ground to hold the respondent for trial.

Verily, the respondent Deputy Ombudsman erred not in denying the motion
to quash and motion for reconsideration interposed by petitioner in the said
case. He acted thereupon according to applicable provisions of the Revised
Rules of Court and Administrative Order No. 07 of the Ombudsman. Section 4
(d) of said administrative order disallows a motion to quash (or dismiss)
except on the ground of lack of jurisdiction. Here, no absence of jurisdiction
is perceived.
Following Section 3 of Rule 112 supra, petitioner was ordered to submit her
counter-affidavit within ten (10) days from service of the subpoena upon her.

The constitutional prescript of promptness of action patently foremost in his

mind, respondent Deputy Ombudsman must have been impelled to afford the
case against petitioner speediest resolution possible. To the fore is Section 12,
Article XI of the 1987 Philippine Constitution, to wit:

The Ombudsman and his Deputies, as protectors of the people, shall act
promptly on complaints filed in any form or manner against public officials or
employees of the government, or any subdivision, agency or instrumentality
thereof, including government owned and controlled corporations, and shall,
in appropriate cases, notify the complainants of the action taken and the result
thereof. (Underscoring, supplied)

The aforecited constitutional provision directs the Ombudsman and his

Deputies to act promptly on complaints. The forms of the complaint or manner
of bringing the same should not deter action thereon with dispatch and sense
of urgency.

It is noteworthy and significant, however, that notwithstanding several

proddings and warnings, petitioner preoccupied herself with the filing of a
motion to quash the Complaint in lieu of her counter-affidavit, so much so that
respondent Deputy Ombudsman had no alternative but to declare the waiver
of petitioners right to be heard and to preliminary investigation.

BALGOS VS. SANDIGANBAYAN

G.R. No.85590; April 10, 1989
DOCTRINE

The doctrine of prejudicial question comes into play usually in a situation

where a civil action and a criminal action are both pending and there exists in
the former an issue which must be pre-emptively resolved before the criminal
action may proceed, because whatsoever the issue raised in the civil action is
resolved would be determinative juris et jure of the guilt or innocence of the
accused in the criminal case.

FACTS:
Balgos, Jr., a public officer, was the acting Clerk of Court of the RTC in
Bayombong and his co-accused were Deputy Provincial Sheriffs.

Petitioners were charged with violation of Section 3(c) of Republic Act No.
3019 (Anti-Graft and Corrupt Practice Act) in an information that was filed
with the Sandiganbayan by the Special Prosecutor.

They enforced a Writ of Execution against a Mustang car registered in the

name of Leticia Acosta-Ang, despite their knowledge that the registered owner
is not the judgment debtor in Civil Case No. 40.

March 18,1987 - Antonio Uy Lim, the plaintiff and prevailing party in Civil Case
No. 4047 filed a complaint for rescission of the sale of the car by Juanito Ang
to private respondent Leticia Acosta-Ang for being allegedly in fraud of
creditors; this was docketed as Civil Case No. 5307.

On the same day, petitioners filed a motion for reinvestigation in the

Tanodbayan; it was granted.

In the reinvestigation, the Tanodbayan found evidence tending to show that:

 the sale of said car to the complainant by Juanito Ang, the judgment
debtor, was a sham intended to defraud his creditors;
 the deed of absolute sale which ostensibly was executed before a notary
public on June 18, 1983 appeared to be fictitious;
 the certificate of registration of the car was issued to complainant only
on June 13, 1984 which showed that the document of sale was actually
executed only on or about the same date, that is, 7 days after Juanito
Ang received copy of the adverse decision in Civil Case No. 4047 on June
8, 1984;
 upon the execution of the judgment, the car was found in the possession
of Alvin, the son of Juanita Ang, who admitted that the car belonged to
his father by showing the receipt of its repair in the name of Juanita
Ang.
April 22, 1988 – based on the above, the Tanodbayan filed w/ the
Sandiganbayan a motion to withdraw the information against petitioners; this
was denied by the Sandiganbayan.

Sandiganbayan declared that the issue in the criminal case was not so much
whether the car was owned by Juanito Ang or Leticia Ang but whether it was
rightly seized, that is, whether or not it was attended with partiality as to
extend unwarranted benefits to the judgment creditor.

September 1, 1988 - Petitioners filed a motion to suspend proceedings in the

criminal case against them on the ground of the existence of a prejudicial
question in Civil Case No. 5307; this was denied.
June 6, 1989 - The Court, acting on the ex-parte urgent motion of petitioners
for the issuance of a TRO enjoining the Sandiganbayan from setting the
arraignment of petitioners, and after requiring the Solicitor General to
comment thereon, granted the motion.

Thereafter, the Solicitor General filed a Manifestation in support of the stand

taken by the petitioners.

Hence, the instant petition where it is alleged that the Sandiganbayan

committed a grave abuse of discretion amounting to lack or excess of
jurisdiction in denying the aforestated motions.

ISSUES:

WON the denial by the Sandiganbayan of the motion to withdraw the

information and of another motion to suspend proceedings on the ground of
a prejudicial question in a pending civil action constitute a grave abuse of
discretion correctible by the writs of certiorari and prohibition.

HELD:

NO. Petition is devoid of merit.

Although at the reinvestigation, the Tanodbayan was persuaded that in fact

the sale of the car to Leticia Ang was fraudulent, this did not necessarily clear
petitioners of the aforesaid Anti-Graft charge against them.

The burden is on the petitioners to establish that they acted in good faith in
proceeding with the execution on the car even they were presented evidence
tending to show it did not belong to Juanito Ang anymore.

The doctrine of prejudicial question comes into play usually in a situation

where a civil action and a criminal action are both pending and there exists in
the former an issue which must be pre-emptively resolved before the criminal
action may proceed, because whatsoever the issue raised in the civil action is
resolved would be determinative juris et jure of the guilt or innocence of the
accused in the criminal case.

In this case, as correctly held by public respondent, the pending civil case for
the annulment of the sale of the car to Leticia Ang (Civil Case No. 5307) is not
determinative of the guilt or innocence of the petitioners for the acts allegedly
committed by them in seizing the car.

Even if in the civil action it is ultimately resolved that the sale was null and
void, it does not necessarily follow that the seizure of the car was rightfully
undertaken. The car was registered in the name of Leticia Ang 6 months before
the seizure. Until the nullity of the sale is declared by the courts, the same is
presumptively valid.
Thus, petitioners must demonstrate that the seizure was not attended by
manifest bad faith in order to clear themselves of the charge in the criminal
action.

ALONZO VS. CONCEPTION

A.M. No. RTJ-04-1879, January 17, 2005
Facts:
May 10, 2003 - At a wedding party, SPO4 Alonzo, Rances, Salamat and Santos were drinking
together in the same table. While waiting to be seated, Pedrito Alonzo was introduced by
SPO4 Alonzo to Rances as his nephew and as the son of ex-Captain Alonzo. SPO4 Alonzo then
introduced him to Salamat. Pedrito and his companions took their seats and started drinking
at the table across SPO4 Alonzo's table. After some time, Pedrito stood up to urinate at the
back of the house. Santos passed a bag to Salamat, and they followed Pedrito. Rances likewise
followed them. A shot rang out. Salamat was seen placing a gun inside the bag as he hurriedly
left. The wedding guests ran after Salamat. They saw him and Rances board a vehicle being
driven by Santos. Pedrito's uncle, Jose Alonzo, sought the help of SPO4 Alonzo to chase the
culprits. He refused and even disavowed any knowledge as to their identity.

Jose Alonzo filed a complaint for murder against Salamat, Rances, Santos, SPO4 Alonzo and
a certain Isidro Atienza.

Pursuant to the preliminary investigation conducted, it was recommended that Salamat be

charged with murder as principal, and Santos and Rances as accessories. With regard to SPO4
Alonzo and Isidro Atienza, the prosecutor found that no sufficient evidence was adduced to
establish their conspiracy with Salamat. Thereafter, an Information was prepared, charging
Salamat as principal, and Rances and Santos as accessories, for the murder of Pedrito. No
bail was recommended.

December 17, 2003 - Judge Concepcion issued an order finding conspiracy among SPO4
Alonzo (mastermind), Rances (back-up of Salamat), Salamat (hired killer) and Santos
(provider of gun) and directing the Office of the Provincial Prosecutor of Bulacan to amend
the information, so as to include all the aforenamed persons as accused in this case, all as
principals, within five (5) days from notice hereof.
January 5, 2004 - SPO4 Alonzo filed his Motion for Reconsideration.

o Court had no authority to review and reverse the resolution of the Office of the Provincial
Prosecutor or to find probable cause against him for the purpose of amending the
Information.
o Prosecutor's resolution can only be reviewed by the Department of Justice, by the Court
of Appeals or by the Supreme Court, when a case for certiorari is filed.

January 12, 2004 - SPO4 Alonzo filed an Urgent Motion for Inhibitation.
o By issuing the aforementioned Order, Judge Concepcion has shown his prejudice against
him and bias in favor of private complainant Jose Alonzo. He prayed that the case be re-
raffled to another judge.

January 13, 2004 - Judge Concepcion issued an Order denying the Motion for Reconsideration
and the Motion for Inhibition. Judge Concepcion stated that SPO4 Alonzo had no personality
to file the said motions as he was not an accused in that case. He held that only the Office of
the Provincial Prosecutor could question the first Order.

January 16, 2004 - SPO4 Alonzo filed a verified affidavit-complaint.

o He accused respondent judge of: a) gross ignorance of the law; b) violation of
Section 2, Article 3 of the 1987 Constitution; c) abuse of authority under
Section 6, Rule 112 of the Rules of Court; d) knowingly rendering an unjust
order; e) conduct unbecoming of a judge; and f) oppression and partiality,

February 26, 2004 – Judge Concepcion received the First Indorsement from the Office of the
Court Administrator (OCA), requiring him to file his comment to the complaint within ten days
from receipt thereof.

March 4, 2004 – Judge Concepcion filed his comment.

o He claimed that while evaluating the records of the case, his curiosity was
piqued as to why no bail was recommended for the three accused. He noticed
that the five witnesses who testified during the preliminary investigation had
consistent accounts of the incidents leading to the death of Pedrito. From these
accounts, respondent concluded that SPO4 Alonzo and all the accused
conspired to kill Pedrito, thus the Office of the Provincial Prosecutor erred when
it merely charged Salamat as principal, and Rances and Santos as accessories,
while complainant was exonerated.
o Respondent stressed that he bade the prosecution to amend the Information
"xxx without any sanction even hinted, should it fail to do so."
 The OCA recommended that the complaint be dismissed on the ground that the Order and
the acts complained of were done by respondent in his judicial capacity and were not
actuated by bad faith, dishonesty or similar motive. In addition, the proper remedy of the
aggrieved party is to file a special civil action for certiorari under Rule 65 of the Rules of
 Court, and not an administrative complaint.

ISSUE:

WON SC should follow recommendation of OCA

WON Judge Concepcion is liable for conduct unbecoming of a judge

Held:

SC cannot follow recommendation of OCA. Judge Concepcion is liable for conduct unbecoming
of a judge and is reprimanded.
Ratio:
 Jude Concepcion overlooked the fact that there is a remedy where a prosecutor errs
in not charging a person in an Information. The recourse is to appeal to the Secretary
of Justice. By ordering the prosecutor to include complainant, Rances and Santos as
principals in the Information, respondent arrogated unto himself the executive power
of supervision and control over public prosecutors. His conduct is not only unbecoming
of a judge; more importantly, it transgresses our Constitution.
 It is not a sufficient excuse for respondent to aver that he did not impose any sanction
for non-compliance with his Order. In itself, his Order does violence to the principle of
separation of powers enshrined in our Constitution. In a clash of views between the
judge who did not investigate and the prosecutor who did, or between the fiscal and
the offended party or the accused, that of the prosecutor's should normally prevail.
 Respondent judge also erred when he issued warrants of arrest for Rances and Santos
without bail. As the Information has not yet been amended charging these two accused
as principals to the crime of murder, they are still entitled, as mere accessories, to bail
under Rule 114, Section 4 of the Revised Rules of Criminal Procedure. The Court notes
with approval that respondent corrected this error by allowing Rances and Santos, with
the recommendation of the prosecution, to post bail. For lack of evidence, respondent
is exonerated of the other charges brought against him.
Notes:
 The rules set the proper procedure for the investigation of complaints and designate
the prosecutor to conduct the preliminary investigation. The function of a preliminary
investigation is to determine whether there is sufficient ground to engender a well-
founded belief that a crime has been committed and the respondent is probably guilty
thereof, and should be held for trial. It is through the conduct of a preliminary
investigation that the prosecutor determines the existence of a prima facie case that
would warrant the prosecution of a case. As a rule, courts cannot interfere with
the prosecutor's discretion and control of the criminal prosecution. The reason
for placing the criminal prosecution under the direction and control of the fiscal is to
prevent malicious or unfounded prosecution by private persons. However, while
prosecuting officers have the authority to prosecute persons shown to be guilty of a
crime, they have equally the legal duty not to prosecute when after an investigation,
the evidence adduced is not sufficient to establish a prima facie case. Judges should
not unduly interfere with the exercise of the power to prosecute on the part
of fiscals.
 It stands to reason then to say that in a clash of views between the judge who did not
investigate and the fiscal who did, or between the fiscal and the offended party or the
defendant, those of the Fiscal's should normally prevail. In this regard, he cannot
ordinarily be subject to dictation.
 We are not to be understood as saying that criminal prosecution may not be blocked
in exceptional cases. A relief in equity "may be availed of to stop a purported
enforcement of a criminal law where it is necessary (a) for the orderly administration
of justice; (b) to prevent the use of the strong arm of the law in an oppressive and
vindictive manner; (c) to avoid multiplicity of actions; (d) to afford adequate protection
to constitutional rights; and (e) in proper cases, because the statute relied upon is
 unconstitutional or was "held invalid.'"
CONQUILLA VS. BERNARDO
A.M. No. MTJ-09-1737

FACTS:

In a verified complaint dated 30 July 2008, complainant Conquilla charged

respondent judge with usurpation of authority, grave misconduct, and gross
ignorance of the law. Complainant alleged that on 4 July 2008, a criminal
complaint for direct assault was filed against her before the MTC of Bocaue,
Bulacan. The complaint was signed by Police Chief Inspector Rizalino Andaya
of the Bocaue Police Station.

On 8 July 2008, respondent judge conducted a preliminary investigation and

found probable cause to hold the complainant for trial for the crime of direct
assault. Respondent judge then issued a warrant of arrest dated 8 July 2008,
with the bail fixed at P12,000.

On 10 July 2008, upon motion of complainant, respondent judge issued an

order reducing the bail for complainants provisional liberty to P6,000. On the
same date, complainant posted cash bail of P6,000 for her provisional liberty.

Complainant then filed an administrative complaint, alleging that under A.M.

No. 05- 08-[2]6-SC, first level court judges no longer have the authority to
conduct preliminary investigations. Thus, complainant avers that respondent
judge committed an illegal act constituting gross ignorance of the law and
procedure when he conducted the preliminary investigation and issued the
warrant of arrest.

Complainant claims that the hasty issuance of the warrant of arrest was
without legal basis and unjustly prejudiced complainant and deprived her of
her liberty. Complainant submits that respondent judge usurped the power of
the prosecutor, who was not even given the chance to comment on
complainants Motion to Reduce Bail.

Furthermore, complainant alleges that when she learned about the warrant of
arrest, she called respondent judges wife, who said she would help in having
the bail reduced to P6,000.00 and would have the case for direct assault
against herein complainant dismissed provided herein complainant cancel the
wifes debt of P35,000.00 and provided that herein complainant loan the wife
an additional amount of P50,000.00.1 In his Comment, respondent judge
states that he issued the warrant of arrest in good faith because he was
convinced that there was probable cause and that it was necessary to place
the complainant under immediate custody to prevent a frustration of justice.
Although respondent judge knew that the Supreme Court already amended
Rules 112 and 114 of the Revised Rules on Criminal Procedure by removing
the conduct of the preliminary investigation from judges of first level courts,
he argues that the power to personally determine probable cause in the
issuance of a warrant of arrest cannot be revoked. Besides, even if such power
to determine probable cause was indeed revoked by the amendment,
respondent judge submits that technical rules can be relaxed if their
implementation will result in injustice.

Respondent judge further states that he did not usurp the power of the
prosecutor when he reduced the bail considering that under Section 20 of Rule
114 the court may increase or decrease the bail upon good cause. Lastly,
respondent judge denies any knowledge of the alleged conversation and
transaction between complainant and his wife.

ISSUE:

Whether or not the conduct of the respondent judge is a direct contravention

of A.M. No. 05-8-26-SC.

HELD:

Yes. The Resolution in A.M. No. 05-8-26-SC, which took effect on 3 October
2005, removed the conduct of investigation from the scope of authority of first
level courts judges.

Under Section 2 of Rule 112, only the following officers are authorized to
conduct preliminary investigations:

(a) Provincial or City Prosecutors and their assistants;

(b) National and Regional State Prosecutors; and
(c) Other officers as may be authorized by law.

Furthermore, Sec 5b of Rule 112 provides: SEC. 5. When warrant of arrest

may issue.
‒
(b) By the Municipal Trial Court.
‒

When required pursuant to the second paragraph of section 1 of this Rule, the
preliminary investigation of cases falling under the original jurisdiction of the
Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal Trial Court
or Municipal Circuit Trial Court SHALL be conducted by the prosecutor. The
procedure for the issuance of a warrant of arrest by the judge shall be
governed by paragraph (a) of this section.

MTC judges are no longer authorized to conduct preliminary investigation. The

complaint was direct assault a public school teacher. The duration of the
penalty of prision correccional in its medium and maximum periods is 2 years,
4 months and 1 day to 6 years. Thus, the offense charged against complainant
requires the conduct of preliminary investigation as provided under Section 1
of Rule 112 of the Rules of Court.

It was therefore incumbent upon respondent judge to forward the records of

the case to the Office of the Provincial Prosecutor for preliminary investigation,
instead of conducting the preliminary investigation himself. In this case,
respondent judge conducted the preliminary investigation without authority
and issued the warrant of arrest. Thus, these acts are void for want of
jurisdiction. The reduction of bail is also void because in the first place,
respondent judge had no jurisdiction over the case itself
 Inquest Procedures (DOJ Circular No. 61, 1993)
Evidence Needed for an Inquest Proceedings

SECTION 1.Concept .—Inquest is an informal and summary investigation

con-ducted by a public prosecutor in criminal cases involving persons arrested
and detained without the benefit of a warrant of arrest issued by the court for
the purpose of deter-mining whether or not said persons should remain under
custody and correspondingly be charged in court.

SEC. 2.Designationof Inquest Officers.—The City or Provincial Prosecutor

shall designate the Prosecutors assigned to inquest duties and shall furnish
the Philippine National Police (PNP) a list of their names and their schedule of
assignments. If, however, there is only one Prosecutor in the area, all inquest
cases shall be referred to him for appropriate action. Unless otherwise directed
by the City or Provincial Prosecutor, those assigned to inquest duties shall
discharge their functions during the hours of their designated assignments
and only at the police stations/headquarters of the PNP in order to expedite
and facilitate the disposition of inquest cases.

SEC. 3.Commencement and Termination of Inquest.—The inquest

proceedings shall be considered commenced upon receipt by the Inquest
Officer from the law enforcement authorities of the complaint/referral
documents which should include:

a. the affidavit of arrest;

b. the investigation report;
c. the statement of the complainant and witnesses; and
d. other supporting evidence gathered by the police in the course of the
latter’s investigation of the criminal incident involving the arrested or
detained person. The inquest Officer shall, as far as practicable, cause
the affidavit of arrest and statements/affidavits of the complainant and
the witnesses to be subscribed and sworn to before him by the arresting
officer and the affiants. The inquest proceedings must be terminated
within the period prescribed under the provisions of Article 125 of the
Revised Penal Code, as amended. *

SEC. 4.Particular Documents Required in Specific Cases.—The

submission, presentation of the documents listed herein below should as far
as practicable, be required in the following cases by the Inquest Officer.
Violation of the Anti-Fencing Law (PD 1612)
a. a list/inventory of the articles and items subject of the offense; and
b. statement of their respective value

Illegal Possession of Explosives (PD 1866)

a. chemistry report duly signed by the forensic chemist and
b. photograph of the explosives, if readily available.

Violation of the Fisheries Law (PD 704)(now RA 8550)

a. photograph of the confiscated fish, if readily available; and
b. certification of the Bureau of Fisheries and Aquatic Resources;

Violation of the Forestry Law (PD 705)

a. scale sheets containing the volume and species of the forest products
confiscated, number of pieces and other important details such as
estimated value of the products confiscated;
b. certification of Department of Environment and Natural
Resources/Bureau of Forest Management; and
c. seizure receipt. The submission of the foregoing documents shall no
absolutely be required if there are other forms of evidence submitted
which will sufficiently establish the facts sought to be proved by the
foregoing documents.

SEC. 5.Incomplete documents.—When the documents presented are not

complete to establish probable cause, the Inquest Officer shall direct the law
enforcement agency to submit the required evidence within the period
prescribed under the provisions of Article 125 of the Revised Penal Code, as
amended; otherwise, the Inquest Officer shall order the release of the
detained person and, where the inquest is conducted outside of office hours,
direct the law enforcement agency concerned to file the case with the City or
Provincial Prosecutor for appropriate action.

SEC. 6.Presence of the detained person.—The presence of the detained

person who is under custody shall be ensured during the proceedings.
However, the production of the detained person before the Inquest Officer
may be dispensed with in the following cases:
 a. if he is confined in a hospital;
b. if he is detained in a place under maximum security;
c. if production of the detained person involve security risks; or
d. if the presence of the detained person is not feasible by reason of
age, health, sex and other similar factors.

The absence of the detained person by reason of any of the foregoing factors
must be noted by the Inquest Officer and reflected in the record of the case.

SEC. 7.Charges and counter-charges.—All charges and counter-charges

arising from the same incident shall, as far as practicable, be consolidated and
inquested jointly to avoid contradictory or inconsistent dispositions.

SEC. 8.Initial duty of the inquest officer .—The Inquest Officer must first
deter-mine if the arrest of the detained person was made in accordance with
the provisions of paragraphs (a) and (b) of Section 5, Rule 113 of the 1985
Rules on Criminal Procedure, as amended, which provide that arrests without
a warrant may be effected:

a. when, in the presence of the arresting officer, the person to be

arrested has committed, is actually committing, or is attempting to
commit an offense; or
b. when an offense has in fact just been committed, and the arresting
officer has personal knowledge of facts indicating that the person to be
arrested has committed it. For this purpose, the Inquest Officer may
summarily examine the arresting officers on the circumstances
surrounding the arrest or apprehension of the detained per-son.

SEC. 9.Where arrest not properly effected.—Should the Inquest Officer

find that the arrest was not made in accordance with the Rules, he shall:

a. recommend the release of the person arrested or detained;

b. note down the disposition of the referral document;
c. prepare a brief memorandum indicating the reasons for the action
taken; and
 d. forward the same, together with the record of the case, to the City or
Provincial Prosecutor for appropriate action.

Where the recommendation for the release of the detained person is approved
by the City or Provincial Prosecutor but the evidence on hand warrant the
conduct of a regular preliminary investigation, the order of release shall be
served on the officer having custody of said detainee and shall direct the said
officer to serve upon the detainee the subpoena or notice of preliminary
investigation, together with the copies of the charge sheet or complaint,
affidavits or sworn statements of the complainant and his witnesses and other
supporting evidence.

SEC. 10.Where the arrest property effected.—Should the Inquest Officer

find that the arrest was properly effected, the detained person should be asked
if he desires to avail himself of a preliminary investigation, if he does, he shall
be made to execute a waiver of the provisions of Article 125 of the Revised
Penal Code, as amended, with the assistance of a lawyer and, in case of non-
availability of a lawyer, a responsible person of his choice. The preliminary
investigation may be conducted by the Inquest Officer himself or by any other
Assistant Prosecutor to whom the case may be assigned by the City or
Provincial Prosecutor, which investigation shall be terminated within
fifteen(15) days from its inception.

SEC. 11.Inquest proper .—Where the detained person does not opt for a
preliminary investigation or otherwise refuses to execute the required waiver,
the Inquest Officer shall proceed with the inquest by examining the sworn
statements/affidavits of the complainant and the witnesses and other
supporting evidence submitted to him. If necessary, the Inquest Officer may
require the presence of the complainant and witnesses and subject them to
an informal and summary investigation or examination for purposes of
determining the existence of probable cause.

SEC. 12.Meaning of probable cause.—Probable cause exists when the

evidence submitted to the Inquest Officer engenders a well-founded belief that
a crime has been committed and that the arrested or detained person is
probably guilty thereof.

SEC. 13.Presence of probable cause.—If the Inquest Officer finds that

probable cause exists, he shall forthwith prepare the corresponding
complaint/information with the recommendation that the same be filed in
court. The complaint/information shall indicate the offense committed and the
amount of bail recommended, if bailable. Thereafter, the record of the case,
together with the prepared com-plaint/information, shall be forwarded to the
City or Provincial Prosecutor for appropriate action. The complaint/information
may be filed by the Inquest Officer himself or by any other Assistant
Prosecutor to whom the case may be assigned by the City or Provincial
Prosecutor.

SEC. 14.Contents of information.—The information shall, among others,

contain:

a. a certification by the filing Prosecutor that he is filing the same in

accordance with the provisions of Section 7, Rule 112 of the 1985 Rules
on Criminal Procedure, as amended, in cases cognizable by the Regional
Trial Court;
b. the full name and alias, if any, and address of the accused;
c. the place where the accused is actually detained;
d. the full names and addresses of the complainant and witnesses;
e. a detailed description of the recovered item, if any;
f. the full name and address of the evidence custodian;
g. the age and date of birth of the complainant or the accused, if
eighteen (19)years of age or below; and
h. the full names and addresses of the parents, custodians or guardians
of the minor complainant or accused, as the case may be.

SEC. 15.Absence of probable cause.—If the Inquest Officer finds no

probable cause, he shall:

a. recommend the release of the arrested or detained person;

b. note down his disposition on the referral document;
c. prepare a brief memorandum indicating the reasons for the action
taken; and
d. forthwith forward the record of the case to the City or Provincial
Prosecutor for appropriate action.

If the recommendation of the Inquest Officer for the release of the arrested
or detained person is approved, the order of release shall be served on the
officer having custody of the said detainee. Should the City or Provincial
Prosecutor disapprove the recommendation of release, the arrested or
detained person shall remain under custody, and the correspond-ing
complaint/information shall be filed by the City or Provincial Prosecutor or by
any Assistant Prosecutor to whom the case may be assigned.

SEC. 16.Presence at the crime scene.—Whenever a dead body is found

and there is reason to believe that the death resulted from foul play, or from
the unlawful acts or omissions of other persons and such fact has been brought
to his attention, the Inquest Officer shall:

a. forthwith proceed to the crime scene or place of discovery of the dead

person;
b. cause an immediate autopsy to be conducted by the appropriate
medico-legal officer in the locality or the PNP medico-legal division or
the NBI medico-legal office, as the case may be;
c. direct the police investigator to cause the taking of photographs of
the crime scene or place of discovery of the dead body;
d. supervise the investigation to be conducted by the police authorities
as well as the recovery of all articles and pieces of evidence found
thereat and see to it that the same are safeguarded and the chain of the
custody thereof properly recorded; and
e. submit a written report of his finding to the City or Provincial
Prosecutor for appropriate action.

SEC. 17.Sandiganbayan cases.—Should any complaint cognizable by the

Sandiganbayan be referred to an Inquest Officer for investigation, the latter
shall, after conducting the corresponding inquest proceeding, forthwith
forward the complete record to the City or Provincial Prosecutor for
appropriate action.

LEVISTE VS. ALAMEDA

626 SCRA 575

Facts:

Jose Antonio C. Leviste (petitioner) was, by Information, charged with

homicide for the death of Rafael de las Alas on January 12, 2007 before the
Regional Trial Court (RTC) of Makati City. Petitioner was placed under police
custody while confined at the Makati Medical Center. After petitioner posted a
bond which the trial court approved,he was released from detention, and his
arraignment was set.

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

Issue:

Whether or not in cases when an accused is arrested without a warrant, the

remedy of preliminary investigation belongs only to the accused.

Held:

No. The Court holds that the private complainant can move for reinvestigation.

All criminal actions commenced by a complaint or information shall be

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

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

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

Once the trial court grants the prosecution’s motion for reinvestigation, the
former is deemed to have deferred to the authority of the prosecutorial arm
of the Government. Having brought the case back to the drawing board, the
prosecution is thus equipped with discretion – wide and far reaching –
regarding the disposition thereof, subject to the trial court’s approval of the
resulting proposed course of action.
J. REMEDIES FROM PRELIMINARY INVESTIGATION

A. Appeal

DIMATULLAC VS. VILLON

G.R. No. 127107 Oct. 12, 1998
Facts:
On or about November 2, 2005 all the accused under the leadership of Mayor
Santiago Yabut went to the house of PO3 Virgilio Dimatulac. Some of the
accused positioned themselves around the house while the others stood by
the truck and the mayor stayed in the truck with the body guard. Accused
Billy YAbut, Kati YAbut & Franncisco Yambao went inside the house strongly
suggested to go down to see the mayor outside and ask for sorry. As
Dimatulac went down to the house and he was shot to kill as a consequence
he died.
The assistant prosecutor Alfonso Flores found that the Yabut’s were in
company with one another that the offense committed was only homicide not
murder and hereby subject to bail P 20,000.00 for each of the accused. The
herein petitioner appealed the resolution of Alfonso Flores to the Secretary of
Justice. Pending appeal to the DOJ, Judge Roura hastily set the case for
arraignment.
Issue:
Whether or not arraignment to lesser penalty of homicide is proper while the
case is pending in the DOJ subject for Review.
Held:
In the case, it is not proper. Indubitably then, there was on the part of the
public prosecution, indecent haste in the filing of information of homicide ,he
should have ask the petitioner as regards to the status of the appeal or warned
them that the DOJ would not decide the appeal within the certain period. It is
indubitable that petitioner had the right to appeal to the Secretary of Justice.
Section 4 of Rule 112 of the rules of court provides that “If upon petition by
the proper party the secretary of Justice reverses the resolution of the
provincial or city fiscal or chief state prosecutor, he shall direct the fiscal
concerned to file the corresponding information without conducting any
preliminary investigation to investigate or to dismiss or move for the dismissal
of the complaint or information”. There is nothing that forecloses the power
of authority of the secretary of justice to review resolutions of his subordinates
in criminal cases despite information already having been filed in court. The
secretary of justice is only enjoined to refrain far as practicable from
entertaining a petition for review or appeal from action of the prosecutor once
the complaint or information is filed in court. In Any case, the grant of a motion
to dismiss, which the prosecution may file after the secretary of justice
reverses an appealed resolution, is subject to the discretion of the court. We
do not hesitate to rule that court committed grave abuse of discretion in
rushing the arraignment of the Yabut’s on the assailed information for
homicide. The DOJ could have, even if belatedly, joined cause with petitioners
to set aside arraignment. So must it be where the arraignment and plea of
not guilty are void.

TY VS. NBI
G.R. No. 182147 December 15, 2010

Facts:

Petitioners are stockholders of Omni Gas Corporation ("Omni"). They are being
suspected of engaging in illegal trading of petroleum products and underfilling
of branded LPG cylinders in violation of B.P. 33, as amended by P.D. 1865.
NBI Agents Marvin De Jemil and Edgardo Kawada conducted surveillance
operations on Omni. On 15 April 2004, the NBI Agents carried out a test-buy.
Using eight branded LPG cylinders from Shell, Petron and Total, they went to
Omni for refilling. Omni refilled the cylinders. The NBI agents paid more than
P1500. LPG Inspector Noel Navio found that the LPG cylinders were without
LPG valve seals and one of the cylinders was actually underfilled.

On 28 April 2004, Agent De Jemil obtained a search warrant from Pasig RTC
branch 167. The NBI seized several items from Omni's premises.
Subsequently, Agent De Jemil filed his Complaint-Affidavit before the DOJ.
The Assistant City Prosecutor of Pasig found probable cause for violation of BP
33. This was later approved by Chief State Prosecutor Jovencito Zuno.

Petitioners appealed the decision to the Secretary of Justice, who later

reversed the decision of the Office of the Chief State Prosecutor. NBI Agent
De Jemil moved for reconsideration. Denied. He thus filed a petition for
certiorari under Rule 65 with the Court of Appeals.

The Court of Appeals affirmed the decision of Secretary of Justice. It later

reversed itself and reinstated the Resolution of the Chief State Prosecutor.

Issue:

WON the petition for certiorari with the Court of Appeals was proper even if
Agent De Jemil did not appeal to the Office of the President.

Held:

YES. The determination of probable cause by the public prosecutor, and, later
on, by the Secretary of Justice, is subject to judicial review where it is
established that grave abuse of discretion tainted the determination. The
aggrieved party need not resort to the Office of the President before availing
of judicial remedies because the Secretary of Justice is an alter ego of the
President who may opt to exercise or not to exercise his or her power of review
over the former’s determination in criminal investigation cases. Also, under
the doctrine of qualified political agency, the determination of probable cause
by the Secretary of Justice is presumably that of the Chief Executive unless
disapproved or reprobated by the latter.

B. REINVESTIGATION/PRELIMINARY INVESTIGATION

CRESPO VS MOGUL
GR No. L-53373, June 30, 1987

FACTS:

Assistant Fiscal Proceso K. Gala with the approval of the Provincial Fiscal filed
an information for estaga against Mario Crespo in the Circuit Criminal Court of
Lucena City. When the case was set for arraignment the accused filed a motion
to deter arraignment on the ground that there was a pending petition for
review filed with the Secretary of Justice of the resolution of the office of
provincial Fiscal.

ISSUE:
WON the trial court acting on a motion to dismiss a criminal case filed by the
Provincial Fiscal upon instructions of the Secretary of Justice to whom the case
was elevated for review, may refuse to grant the motion and insist on the
arraignment and trial on the merits.

HELD:

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

information is filed in Court any disposition of the case as its dismissal or the
conviction or acquittal of the accused rests in the sound discretion of the
Court. Although the fiscal retains the direction and control of the prosecution
of criminal cases even while the case is already in Court he cannot impose his
opinion on the trial court. The Court is the best and sole judge on what to do
with the case before it. The determination of the case is within its exclusive
jurisdiction and competence.

A motion to dismiss the case filed by the fiscal should be addressed to the
Court who has the option to grant or deny the same. It does not matter if this
is done before or after the arraignment of the accused or that the motion was
filed after a reinvestigation or upon instructions of the Secretary of Justice
who reviewed the records of the investigation.

CARDINAL PRINCIPLE:

Criminal actions either commenced by complaint or by information shall be

prosecuted under the direction and control of the fiscal. The institution of a
criminal action depends upon the sound discretion of the Fiscal. He may or he
may not file the complaint or information, follow or not follow that presented
by the offended party, according to whether the evidence in his opinion, is
sufficient or not to establish the guilt of the accused beyond reasonable doubt.
The reason for placing the criminal prosecution under the discretion and
control of the fiscal is to prevent malicious or unfounded prosecution by
private persons.

It is through the conduct of preliminary investigation, that the fiscal

determines the existence of a Prima Facie case that would warrant the
prosecution of a case. The Courts cannot interfere with the fiscal’s discretion
and control of the criminal prosecution. It is not prudent or even permissible
for a Court of compel the fiscal to prosecute a proceeding originally initiated
by him on an information.

In a clash of views between the Judge who did not investigate and the Fiscal
who did, or between the fiscal and the offended party or the defendant, those
of the Fiscal’s should normally prevail.
The action of fiscal or prosecutor is not without any limitation or control. The
same is subject to the approval to the Provincial or City Fiscal or the Chief of
State Prosecutor as the case maybe and it maybe elevated for review to the
Secretary of Justice who has the power to affirm, modify or reverse the action
or opinion of the Fiscal.