RULE 112 Compiled

7/27/2019 RULE 112 Compiled

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Page 2 of33discuss matters leading to (1) the revocation of theconsulting contract with Ebasco and (2) theeventual award of the PNPP project to Westinghouseand Burns & Roe. There was a testimony to Disinisactions. Hull stated clearly and categorically that hemet with Disini and that the latter promised to wieldhis influence.

As to the actual payment of commissions: while it maybe true that the documents were not signed (fortelexes are not signed), they were nonethelessidentified and their sources authenticated. Oftenhave we ruled that the validity and the merits of aparty's defense or accusation, as well as theadmissibility of testimonies and pieces of evidence,are better ventilated during the trial than during thepreliminary investigation. Neither can theombudsman rule on the presence or the absence ofthe elements of the crime, for these are by natureevidentiary and defense matters, the truth of whichcan be best passed upon after a full-blown trial onthe merits

During the preliminary investigation, the PCGG was not

obliged to prove its cause beyond reasonabledoubt. It would be unfair to expect the Commissionto present the entire evidence needed to secure theconviction of the accused prior to the filing of theinformation. The reason lies in the nature and thepurpose of a preliminary investigation. At thisstage, the prosecutor does not decide whether theguilt of the person charged is backed by evidencebeyond reasonable doubt. The former merelydetermines whether there is sufficient basis tobelieve that a crime has been committed, andwhether the latter is guilty of it and should be heldfor trial.

The established rule is that a preliminary

investigation is not the occasion for the fulland exhaustive display of the partiesrespective sets of evidence. It is for thepresentation only of such evidence as mayengender a well-grounded belief that anoffense has been committed, and that theaccused is probably guilty thereof.

During the preliminary investigation, the mainfunction of the government prosecutor -- theombudsman in this case -- is merely to determinethe existence of probable cause and, if it doesexist, to file the correspondinginformation. Probable cause has been defined asthe existence of such facts and circumstances as

would excite in a reasonable mind -- acting on thefacts within the prosecutors knowledge -- the beliefthat the person charged is probably guilty of thecrime for which he or she is being prosecuted.

Probable cause is a reasonable ground for presumingthat a matter is or may be well-founded on suchstate of facts in the prosecutors mind as would leada person of ordinary caution and prudence tobelieve -- or entertain an honest or strong suspicion-- that it is so. The term does not mean actual andpositive cause; neither does it import absolutecertainty. It is based merely on opinion andreasonable belief. Thus, a finding of probable cause

does not require an inquiry into whether there issufficient evidence to secure a conviction. It isenough that the act or the omission complained ofis believed to constitute the offense charged.Precisely, there is a trial to allow the reception ofevidence for the prosecution in support of thecharge.

In determining probable cause, the averageperson weighs facts and circumstances

without resorting to the calibrations oftechnical rules of evidence, of which suchpersons knowledge is nil. Rather, the layperson usually relies on the calculus ofcommon sense, of which all reasonablepersons have abundance

Baytan v. COMELECFebruary 4, 2003 Carpio En Banc

Facts:

The Baytan brothers registered twice during the1997 Voters Registration, once on June 15, 1997and next on June 22, 1997

But on August 21, 1997, they wrote a letter toCOMELEC informing it of its double registration andits intention of rectifying a supposedly honestmistake

However, on Sept 16, 1997, COMELEC forwardedthe Baytans records for evaluation; this wasendorsed to the Regional Director for prosecution

Atty. Ravanzo recommended filing an info fordouble registration which was affirmed by theComelec en banc in its Minute Resolution

Issue:1. WON the criminal cases should be dismissed on the

ground of lack of intent and substantial compliance

with the requirement of cancellation of previousregistration

2. WON the Comelec en bancs assumption of origjurisdiction over the case violated the Constitution

Held:1. NO- the assailed resolutions were issued in the

preliminary investigation stage. A preliminaryinvestigation is essentially inquisitorial and is onlythe means to discover who may be charged with acrime, its function being merely to determineprobable cause. All that is required in thepreliminary investigation is the determination of

probable cause to justify the holding of petitionersfor trial.- Also, double registration is a malum prohibitum and

does not need intent for its violation

2. NO- Comelec has both adjudicatory or quasi-judicial

power and administrative powers and it is onlywhen it is exercising its adjudicatory or quasi-judicial powers that Comelec is mandated to hearand decide cases first by division and then, uponMR, by en banc

- the conduct of a preliminary investigation beforethe filing of an information in court does not in any


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Page 3 of33way adjudicate with finality the rights and liabilitiesof the parties investigated. A preliminaryinvestigation does not make any pronouncement asto the guilt or innocence of the party involved.Hence, a preliminary investigation cannot beconsidered a judicial or quasi-judicial proceedingrequired to be heard by the Division in the firstinstance.

- The prosecution of election law violators involvesthe exercise of the COMELECs administrativepowers. Thus, the COMELEC en banc can directlyapprove the recommendation of its Law Departmentto file the criminal information for doubleregistration against petitioners in the instant case.There is no constitutional requirement that the filingof the criminal information be first decided by any ofthe divisions of the COMELEC.

DOJ-NPS Manual, Part III (Preliminary Investigation), PartII (Inquest)

B. Definition; when required

- Rule 112, sec. 1;- DOJ-NPS Manual, Part III, secs. 1, 2, 3, 7;- RJCL, secs. 13, 8;

RULE 112 - PRELIMINARY INVESTIGATION Section 1. Preliminary investigation defined;

when required. Preliminary investigation is aninquiry or proceeding to determine whether there issufficient ground to engender a well-founded beliefthat a crime has been committed and therespondent is probably guilty thereof, and should beheld for trial.

Except as provided in Section 7 of this Rule, apreliminary investigation is required to be

conducted before the filing of a compliant orinformation for an offense where the penaltyprescribed by law is at least four (4) years, two (2)months and one (1) day without regard to the fine.

RJCL Sec. 8. Conduct of Initial Investigation bythe Police. The police officer conducting the initialinvestigation of a juvenile in conflict with the lawshall do so in the presence of either of the parentsof the juvenile; in the absence of both parents, theguardian or the nearest relative, or a social welfareofficer, and the counsel of his own choice. In theirpresence, the juvenile shall be informed of hisconstitutional rights during custodial investigation.

The right of the juvenile to privacy shall be protected atall times. All measures necessary to promote thisright shall be taken, including the exclusion of themedia.

RJCL Sec. 13. Preliminary Investigation. As far asconsistent with this Rule, the preliminaryinvestigation of a juvenile in conflict with the lawshall be governed by Section 3 of Rule 112 of theRevised Rules of Criminal Procedure. If clarificatoryquestions become necessary, the Rule onExamination of a Child Witness shall apply.

If a preliminary investigation is required before the filingof a complaint or information, the same shall beconducted by the judge of the Municipal Trial Courtor the public prosecutor in accordance with thepertinent provisions of Rule 112 of the RevisedRules of Criminal Procedure.

If the investigating prosecutor finds probable cause tohold the juvenile for trial, he shall prepare thecorresponding resolution and information for

approval by the provincial or city prosecutor, as thecase may be. The juvenile, his parents/nearestrelative/guardian and his counsel shall be furnishedforthwith a copy of the approved resolution.

Hashim vs BoncanDate: January 13, 1941 / Ponente: Laurel, J.

Facts- A preliminary investigation was conducted by the

respondent Fiscal at which evidence was adducedwarranting the filing of an information againstHashim for possessing counterfeit treasury

certificates of the Commonwealth of the Philippines- The information was filed in Court, and the presidingjudge, upon the strength of the said preliminaryinvestigation and sworn information, issued awarrant for the arrest of Hashim

- Counsel for Hashim asked the respondent fiscal tofurnish the clerk of court with the testimony of thewitnesses

Issue- Whether or not, in a preliminary investigation

conducted by the fiscal, the accused is entitled tobe informed of the substance of the testimony andof the evidence presented against him

Held- No

Ratio- In this case, a preliminary investigation was

conducted by the respondent Fiscal at whichevidence was adduced warranting the filing of aninformation against Hashim. The information wasfiled in Court, and the presiding judge, upon thestrength of the said preliminary investigation andsworn information, issued a warrant for the arrestfor Hashim. To ask for the abstract of testimony atthis stage of the proceedings, ostensibly for noother purpose than to scrutinize the same evidencewhich convinced the respondent Fiscal and thepresiding Judge that there was probable ground toproceed against the petitioner, is in effect, to ask foranother preliminary investigation.

Doctrine (kung gusto niyo lang isama sa notes)- The right to a preliminary investigation is statutory,

not constitutional.- The purpose is to secure the innocent against hasty

malicious, and oppressive prosecutions, and toprotect him from open and public accusation ofcrime, from the trouble, expenses and anxiety of apublic trial, and also to protect the State fromuseless and expensive prosecutions


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Page 4 of33- The investigation is advisedly called preliminary, to

be followed by the trial proper. The investigatingjudge or prosecuting officer acts upon probablecause and reasonable belief, not upon proof beyonda reasonable doubt. The occasion is not for the fulland exhaustive display of the parties' evidence; it isfor the presentation of such evidence only as mayengender well-grounded belief that an offense hasbeen committed and that the accused is probablyguilty thereof. When all this is fulfilled, the accused

will not be permitted to cast about for fanciedreasons to delay the proceedings; the time to askfor more is at the trial.

Tandoc et. al. vs. Resultan et. al.July 5, 1989 / Padilla

PARTIES:Petitioners: Pedro Tandoc, Rogelio Ercella, Rudy Diaz,

Juan Rosario, Fred MenorRespondents: Judge Ricardo Resultan (San Carlos City

Court), Arnulfo Payopay, Manuel Cancino, ConradoPayopay Sr.

FACTS:- Oct. 19, 1980 a criminal complaint was filed by

the petitioners in the Office of the City Fiscal ofSan Carlos City, Pangasinan with several charges:Serious Physical Injuries, Slight PhysicalInjuries, Trespass to Dwelling against therespondents

- Dec. 2, 1980 - 3 of the respondents (except thejudge) also filed a complaint with the same office,charging against all the petitioners the crimes ofTrespass to Dwelling, Serious OralDefamation, Grave Threats, Physical Injuries

- Dec. 10, 1980 the investigating fiscal foundprobable cause to believe that respondents did

commit the crimes charged against them bypetitioners and recommended that properInformations be filed in court. Apparently, therespondents, on Oct. 19, 1980, went to the storeand dining room of one Pacita Tandoc without herpermission. There was a throwing of stones andhitting (as in bugbog, ok) Pacitas helpers, thepetitioners. The latter went to the Brgy. Chairmanand Office of the Station Commander to report theincident and give sworn statements.

- Respondents filed MR but denied. So thecorresponding Informations were filed for the threecases in the City Court of San Carlos City. Fiscalrecommended the dropping of the Dec.2 complaintfiled by respondents. He said these werecountercharges, because they were filed 1 monthafter the incident. But there was a prima facie casefor the Trespass to Dwelling case filed againstone of the petitioners, so an Information for thatcase was also filed with the same court.

- Respondents filed directly with the same city courtthese complaints against petitioners: SeriousPhysical Injuries, Trespass to Dwelling, Less SeriousPhysical Injuries, Grave Threats to Kill

- This city court then conducted a preliminary examof these 4 cases and found reasonable ground tobelieve that petitioners may have committed these

offenses. Warrants of arrest were issued but latersuspended.

ISSUE:- Does a city court have power and authority to

conduct a new preliminary investigation of charges,which were already investigated and dismissed bythe Office of the City Fiscal? YES

- Define preliminary investigation (PI)

HELD and RATIO:- A preliminary investigation is intended to

protect the accused from the inconvenience,expense and burden of defending himself in aformal trial unless the reasonable probability of hisguilt shall have been first ascertained in a fairlysummary proceeding by a competent officer. It isalso intended to protect the state from having toconduct useless and expensive trials. This ismerely inquisitorial, and is often the only means todiscover who can be charged with a crime. This isnot a trial on the merits.

- Only purpose is to determine whether a crime hasbeen 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 istaken in jeopardy.

- 2 stages in a PI: 1) the preliminary examinationof the complainant and his witnesses prior to thearrest of the accused to determine whether or notthere is ground to issue a warrant of arrest; 2) PIproper, wherein the accused, after his arrest, isinformed of the complaint filed against him and isgiven access to the testimonies and evidencepresented, and he is also permitted to introduceevidence in his favor (this is to determine whetheror not the accused should be released or heldbefore trial)

- Old crimpro rules (1964): in cases within the

jurisdiction of city court, municipal court, CFI, theaccused is not entitled to be heard in a PI proper.Reason: the accused will be assured of a speedytrial upon his arraignment and will lessen the periodof his deprivation of liberty. You get to determineimmediately whether he is probably guilty or not.Saves time and effort for everybody.

- HERE, the offenses charged against petitioners arewithin the city courts jurisdiction. So complaints canbe directly filed in court. The court can do a prelimexam for purposes of issuance of warrant of arrest,then go to trial on the merits. There was NO needfor the city fiscal to do a PI. The fiscals order ofdismissal is NOT a bar to the direct filing of thecomplaints on the ground of double jeopardy.

- PI will NEVER give rise to the defense of doublejeopardy. Double jeopardy requires a formerjudgment, either of acquittal or of conviction,rendered by a court competent to render the same,not only by reason of the offense committed, whichmust be the same or at least comprised within it,but also by reason of the place where it wascommitted. PI is NOT a trial. It is only to determine,before the presentation of evidence by theprosecution and by the defense, if the latter partyshould wish to present any, whether or not there arereasonable grounds for proceeding formally andresolutely against the accused


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Page 5 of33- The crimes charged have not yet prescribed. City

courts have power and authority to conduct apreliminary examination and proceed with the trialof the case properly within its jurisdiction, as long asthe offense charged has not yet prescribed.

- HERE, petitioners cannot request for reinvestigationby the city fiscal. Reinvestigation can only be hadwhen a case is properly under CFI jurisdiction butfiled with City Court for PI purposes only, anddismissed by the CC on the ground that no prima

facie case exists. But when case is cognizable bylower courts and filed therein not only for PI but trialon merits, city fiscal has no authority toreinvestigate.

Quintin Doromal v. Sandiganbayan, Ombudsman,Special Prosecutor

EN BANC | September 7, 1989 | GRIO-AQUINO, J.

Note: Recall the jurisdiction of the Tanodbayan, SpecialProsecutor, and Ombudsman

FACTS:

October 1987 - Special Prosecution Officer, DionisioA. Caoili, conducted a preliminary investigation ofthe charge against Quintin S. Doromal, a formerCommissioner of the PCGG, for violation of the Anti-Graft and Corrupt Practices Act (RA 3019), Sec. 3(h),in connection with his shareholdings and position aspresident and director of the Doromal InternationalTrading Corporation (DITC) which submitted bids tosupply P61 million worth of electronic, electrical,automotive, mechanical and airconditioningequipment to the DECS and the National Manpowerand Youth Council (or NMYC).

With the approval of Special Prosecutor RaulGonzales, Caoili filed in the Sandiganbayan aninformation against Doromal for having direct or

indirect financial interest in DITC, an entity whichtransacted or entered into a business transaction orcontract with DECS and the NMYC, both agencies ofthe government which business, contracts ortransactions he is prohibited by law and theconstitution from having any interest.

First Case Filed Jurisdiction of the Tanodbayan- Filed petition for certiorari and prohibition in the SC

questioning the jurisdiction of the "Tanodbayan" tofile the information without the approval of theOmbudsman after the effectivity of the 1987Constitution

- SC annulled the information in accordance with the

ruling in Zaldivar vs. Sandiganbayan, that theincumbent Tanodbayan (called Special Prosecutorunder the 1987 Constitution and who is supposed toretain powers and duties NOT GIVEN to theOmbudsman) is clearly without authority to conductpreliminary investigations and to direct the filing ofcriminal cases with the Sandiganbayan, exceptupon orders of the Ombudsman.This right to do sowas lost effective February 2, 1987. From that time,he has been divested of such authority.

- Upon the annulment of the information, the SpecialProsecutor sought clearance from the Ombudsmanto refile it, which the Ombudsman, Conrado

Vasquez, granted but advised that "some changesbe made in the information previously filed."

First Information Second Information

entered into a businesstransaction orcontract with the

Department ofEducation, Cultureand Sports and theNational Manpowerand YouthCouncil, ... whichbusiness, contractsor transactions he[petitioner] isprohibited by lawand the constitutionfrom having anyinterest

unlawfully participatedin a businessthrough theDoromalInternational

Trading Corporationa family corporationof which he is thePresident, and whichcompanyparticipated in thebiddings conductedby the Departmentof Education,Culture and Sportsand the NationalManpower & YouthCouncil, which act oparticipation isprohibited by law

and the constitution

Actions Taken

1. Doromal - "Motion to Quash" the information forbeing invalid (because there had been nopreliminary investigation), and defective (becausethe facts alleged do not constitute the offensecharged). Sandiganbayan denied the Motion.

2. Special Prosecutor - "Motion to Suspend AccusedPendente Lite" pursuant to Section 13 R.A. 3019.This was objected by Doromal because thePresident had earlier approved his application forindefinite leave of absence as PCGG commissioner

effective immediately and until final decision of thecourts in his case. Sandigan then ordered hissuspension pendente lite from his position as PCGGCommissioner and from any other office he may beholding. His MR also denied.

Second Case Filed Grave Abuse of Discretion ofSandiganbayan

(1) in denying Doromals Motion to Quash theinformation in Second Criminal Case; and,

(2) in suspending him from office despite thePresident's having previously approved hisindefinite leave of absence " until final decision" inthis case.

Contentions:

1. Doromal - as the preliminary investigation that wasconducted prior to the filing of the originalinformation in the Criminal Case was nullified bythis Court, another preliminary investigation shouldhave been conducted before the new information inthe second case (refilled case) against him. Thedenial of his right to such investigation allegedlyviolates his right to due process and constitutes aground to quash the information.

2. Sandiganbayan - another preliminaryinvestigation is unnecessary because both old andnew informations involve the same subject matter aviolation of Section 3 (H) of R.A. No. 3019 in relation


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Page 6 of33to Section 13, Article VII of the 1987 Constitution.Moreover, Doromal allegedly waived the secondpreliminary investigation by his failure to complywith the Court's Order dated August 12, 1988directing him to submit a statement of new oradditional facts, duly supported by photo copies ofdocuments which he would present should a newpreliminary investigation be ordered.

Issue: Is there a need for another preliminary

investigation for the refilled case against Doromal?Held:YES. But the absence of a preliminary

investigation does not render the informationinvalid.

Ratio: A new preliminary investigation of the chargeagainst the petitioner is in order not only becausethe first was a nullity (a dead limb on the judicialtree which should be lopped off and whollydisregarded"-Anuran vs. Aquino) but also becausethe accused demands it as his right. Moreover, thecharge against him had been changed, as directedby the Ombudsman.

The petitioner's right to a preliminary investigation

of the new charge is secured to him by Rule 112 ofthe 1985 Rules on Criminal Procedure. (Sec. 3 and7)1

That right of the accused is "a substantial one." Itsdenial over his opposition is a "prejudicial error, inthat it subjects the accused to the loss of life,liberty, or property without due process of law."

Jurisprudence: The right of the accused not to be brought to

trial except when remanded therefor as aresult of a preliminary examination before acommitting magistrate, it has been held is asubstantial one. Its denial over the objectionsof the accused is prejudicial error in that itsubjects the accused to the loss of life, libertyor property without due process of law.

1SEC. 3. Procedure. ... no complaint or information for anoffense cognizable by the Regional Trial Court shall be filedwithout a preliminary investigation having been firstconducted. .....

SEC. 7. When accused lawfully arrested without

warrant.- When a person is lawfully arrested without a warrantfor an offense cognizable by the Regional Trial Court, thecomplaint or information may be filed by the offended party,peace officer or fiscal without a preliminary investigationhaving been first conducted; on the basis of the affidavit of the

offended party or arresting officer or person.

However, before the filing of such complaint or information, theperson arrested may ask for a preliminary investigation by aproper officer in accordance with this Rules ....

If the case has been filed in court without a preliminaryinvestigation having been first conducted, the accused maywithin five (5) days from the time he learns of the filing of theinformation, ask for a preliminary investigation with the sameright to adduce evidence in his favor in the manner prescribedin this Rule.

(Conde vs. Judge of Court of First Instance ofTayabas) The absence of a preliminary investigation if it

is not waived may amount to a denial of dueprocess. (San Diego vs. Hernandez)

xxx the preliminary investigation in criminalcases is not a creation of the Constitution; itsorigin is statutory and it exists and the rightthereto can be invoked when so establishedand granted by law. (Mariano Marcos, et al.vs. Roman A. Cruz).

OSG: The right to a preliminary investigation maybe waived and was in fact waived by Doromal. SCHELD: No. Since the right belongs to the accused,he alone may waive it. If he demands it, the Statemay not withhold it.

Absence of Preliminary Investigation is not aground to Quash Complaint or Information:Absence of a preliminary investigation is not aground to quash the complaint or information (Sec.3, Rule 117, Rules of Court), the proceedings uponsuch information in the Sandiganbayan should beheld in abeyance and the case should be remandedto the office of the Ombudsman for him or the

Special Prosecutor to conduct a preliminaryinvestigation. It does not affect the courtsjurisdiction over the case, nor does it impair thevalidity of the information or otherwise render itdefective.

Doromal clearly has to face the charges based onSection 13, Article VII of the 1987 Constitutionproviding that "the President, Vice-President, themembers of the Cabinet and their deputies orassistants shall not... during (their) tenure, ...directlyor indirectly... participate in any business."

His suspension from office, is likewise supported bySection 13 of RA 30192

His approved leave of absence is not a bar to his

preventive suspension for, as indicated by theSolicitor General, an approved leave, whether it befor a fixed or indefinite period, may be cancelled orshortened at will by the incumbent. However, hemay not be suspended indefinitely as that will runcounter to his rights to due process of law.

Doromals preventive suspension has exceeded thereasonable maximum period of ninety (90) daysprovided in Section 42 of the Civil Service Decree ofthe Philippines (P.D. 807), being such, it should nowbe lifted.

Disposition: Petition for certiorari and prohibitiongranted. Sandiganbayan ordered to immediatelyremand the Criminal Case to the Office of the

2SEC. 13. Suspension and loss of benefits.-Any publicofficer against whom any criminal prosecution under a validinformation under this Act or under the provisions of theRevised Penal Code on bribery is pending in court, shall besuspended from office. Should he be convicted by final

judgment, he shall lose all retirement or gratuity benefits undeany law, but if he is acquitted, he shall be entitled toreinstatement and to the salaries and benefits which he failedto receive during suspension, unless in the meantimeadministrative proceedings have been filed against him.


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Page 7 of33Ombudsman for preliminary investigation and tohold in abeyance the proceedings before it pendingthe result of such investigation. Doromalspreventive suspension is lifted.

COJUANGCO V. PCGGOctober 2, 1990 | J. Gancayco

FACTS:

In Nov. 28, 1989, Pres. Cory Aquino directed the SolGen to prosecute all person involved in the misuseof coconut levy funds

Sol Gen created a task force to conduct a thoroughstudy of the possible involvement of all persons filed 2 criminal complaints with PCGG (IS Nos. 74and 75)

PCGG assigned both complaints to prosecutor delRosario for preliminary investigation (PI)

In the scheduled PI, Cojuangco appeared thru hiscounsel and moved to disqualify/inhibit the PCGG ordismiss and alleges that the PCGG may not conducta PI without violating Cojuangcos rights to dueprocess and equal protection of the law and that

PCGG has no right to conduct such PI these weredenied

2 informations (criminal cases) were filed by PCGGwith the Sandiganbayan

SC directed that the Ombudsman be impleaded asparty-respondent and was required to comment

ISSUE:(1) WON PCGG can conduct a PI of the criminal

complaints filed against them by the SolGen(2) WON PI by PCGG of the complaints violates the right

of Cojuangco to due process and to equal protectionof law

HELD:(1) Yes.but..(2) Yes. PCGG cannot conduct the PI with cold neutrality

of an impartial judge

RATIO:(1) PCGG has power to conduct PI The exclusive jurisdiction of the Tanodbayan to

conduct PI of graft and corruption/unexplainedwealth cases was modified when Pres. Aquinoissued EO 1 creating the PCGG and constituting itsmembership to assist the President in the recoveryof ill gotten wealth accumulated by the formerPresident, his relatives and cronies

Sec 2. The commission shall be charged withthe task of assisting the President in regard tothe following matters: (b) the investigation ofsuch cases of graft and corruption as thePresident may assign to the Commission fromtime to time

Sec 3. The commission shall have the powerand authority: (a) to conduct investigations asmay be necessary in order to accomplish andcarry out the purposes of this order

EO 14 also empowers the OSG and PCGG to file andprosecute all cases investigated by it under EO 1

The authority to investigate extended to the PCGGincludes the authority to conduct a PI

Upon the adoption of the 1987 Consti creation ofthe office of the Ombudsman Art 13 Sec 1 vesting on the Ombudsman the right and the powerto investigate on its own or on complaint, any act oromission of any public official, employee, office oragency which appears to be illegal, unjust,improper, or inefficient general power ofinvestigation covers the lesser power to conduct aPI.

How to reconcile? Consti provision does not showthat the power of investigation including PI vestedon the Ombudsman is exclusive. The Consti did notrepeal or remove the power to conduct aninvestigation vested on the PCGG by EO 1 and 14.

(2) PI by PCGG violates Cojuangcos right to due processand equal protection of the laws

Rule 112 Sec 1 Preliminary investigation an inquiryor proceeding for the purpose of determiningwhether there is sufficient ground to engender awell-founded belief that a crime cognizable by theRTC has been committed and that the respondent isprobably guilty thereof, and should be held for trial

Purpose to secure the innocent against hasty,

malicious and oppressive prosecution, and toprotect him from an open and public accusation of acrime, from the trouble, expense, anxiety of a publictrial, and also to protect the state from useless andexpensive trials

Indispensable requirement of due process is thatthe person who presides and decides over aproceeding, including PI, must possess the coldneutrality of an impartial judge

Would it be fair and just for the PCGG to conduct thePI? NO

General power of investigation vested inPCGG

Criminal investigation fact-finding

inquiring usually conducted by lawenforcement agents where they gatherevidence and interview witnesses afterwhich they assess the evidence and ifthey find sufficient basis, file thecomplaint for the purpose of PI

PI ascertain if there is sufficientevidence to bring a person to trial

SC says, with the PCGG having gathered theevidence and filed the complaint as a lawenforcer, he cannot be expected to handlewith impartialitythe PI ofhis own complaintas a public prosecutor

PCGG cannot conduct the PI of said criminal

complaints with the cold neutrality of animpartial judge as it has prejudged thematter

J. GUTIERREZ, CONCURRING

He feels that the SC should have gone further PCGG should no longer continue conducting PI. It

should limit itself to the preparation and filing ofcivil cases

The court should have explored further on the issueof the equal protection

PCGG appointment, tenure, functions, andobjectives prevent it from being fair and


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Page 8 of33objective a temporary office given a fixedmission

Ombudsman created by the Constitution.Vested with independent powers and enjoysfiscal autonomy

Impartiality and fundamental fairness are inherentrights of all persons brought before our criminaljustice system

Webb vs. De Leon23 Aug 1995 | Puno, J.

Facts:NBI filed with DOJ a letter-complaint charging Webb,

Gatchalian, Lejano and 6 others with the crime ofrape with homicide. DOJ formed a panel ofprosecutors to conduct preliminary investigationwhere the NBI presented 1) sworn statement ofAlfaro 2) Sworn statements of 2 former Webbshousemaids 3)sworn statement of Carlos Cristobal(passenger of flight bound for NY) 4)swornstatement of Lolita Birrer 5) sworn statements of 2Vizcondes maids and 6) sworn statements of

security guard and Gatmaitan, an engineer. Autopsyreports and genital examination were alsopresented.

Before submitting a counter-affidavit, Webb filed withDOJ a Motion for Production and Examination ofEvidence and Documents for NBI to produce.Motion was granted. NBI submitted photocopies ofdocuments. Original sworn statement of Alfaro waslost. Webb claimed during the prelim investigationthat he went to the US on 1 Mar. 1991 and did notreturn until 27 Oct. 1992.

ISSUES:The petitioners contend that:1. DOJ Panel gravely abused its discretion when it

found probable cause2. Judges de Leon and Tolentino failed to conduct a

prelim investigation before issuing warrants ofarrest against them, gravely abusing their discretion

3. DOJ Panel denied their right to due process duringprelim investigation

4. DOJ Panel unlawfully intruded into judicialprerogative when it failed to charge Jessica Alfaro inthe information as accused

HELD:1. DOJ Panel did not abuse its discretion when it found

probable cause.

The purpose of a prelim investigation under Sec. 1 ofRule 112 provides that a prelim investigation shoulddetermine WON there is sufficient ground toengender a well-grounded belief that a crimecognizable by the RTC has been committed and thatthe respondent is probably guilty thereof, andshould be held for trial. Sec. 3 of the same Ruleoutlines the procedure in conducting a preliminvestigation. The need to find probable cause isdictated by the Bill of Rights.

Petitioners attack the truthfulness of Alfaro because shedescribed Webbs hair as semi-blond and shecommitted inconsistencies in her 2 swornstatements. DOJ Panel ruled that these did not

erode the credibility of Alfaro. There is no rule of lawwhich prohibits a court from crediting part of thetestimony of a witness as worthy of belief and fromsimultaneously rejecting other parts which the courtmay find incredible or dubious. The DOJ Panelevaluated supporting statements of other witnessesIt then weighed these inculpatory evidence againstexculpatory evidence of petitions ruling that an alibicannot outweigh positive identification made by awitness. A finding of probable cause needs only to

rest on evidence showing that more likely than not acrime has been committed by the suspects.

DOJ did not gravely abuse its discretion when it refusedto call the NBI witnesses for clarificatory questions.

The decision to do so is addressed to the sounddiscretion of the investigator alone. If the evidenceon hand already yields probable cause, theinvestigator need not hold a clarificatory hearing.Probable cause merely implies probability of guilt.Prelim investigation is not part of trial and it is onlyin a trial where n accused can demand the right toconfront and cross-examine his accusers to

establish his innocence. There was enough evidencein this case to make it unnecessary.

Petitioners also charge NBI with violating their right todiscovery proceedings during their preliminvestigation by suppressing the original copy ofAlfaros sworn statement. DOJ still found probablecause to charge them despite the inconsistencies inlight of the totality of evidence presented by theNBI.

2. The judges just personally review the initialdetermination of the prosecutor finding a probablecause to see if it is supported by substantialevidence. The sufficiency of the review process

cannot be measured by merely counting minutesand hours. The fact that it took them a few hoursdoes not mean they made no personal evaluation ofthe evidence attached to the records of the case.

3. DOJ Panel did not conduct the prelim investigationwith indecent haste. There is no violation of thepetitioners right to due process and right toimpartial investigation. DOJ Order No. 223 allowsthe filing of an Information in court after theconsummation of the prelim investigation even ifthe accused can still exercise the right to review ofthe prosecutors recommendation with the Sec. ofJustice.

4. The non-inclusion of Jessica Alfaro is anchored on RA6981 (Witness Protection Program).

C. Persons authorized to conduct- Rule 112, sec. 2;- DOJ-NPS Manual, sec. 6;- RA 6770, secs. 11 (4)(a), 15;

Sec. 2. Officers authorized to conduct preliminaryinvestigations. The following may conductpreliminary investigations:


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Page 9 of33(a) Provincial or City Prosecutors and their assistants;(b) Judges of the Municipal Trial Courts and Municipal

Circuit Trial Courts;(c) National and Regional State Prosecutors; and(d) Other officers as may be authorized by law.

Their authority to conduct preliminary investigationsshall include all crimes cognizable by the propercourt in their respective territorial jurisdictions.

Sec. 11. Structural Organization. - The authority andresponsibility for the exercise of the mandate of theOffice of the Ombudsman and for the discharge ofits powers and functions shall be vested in theOmbudsman, who shall have supervision andcontrol of the said Office.

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

(a) To conduct preliminary investigation and prosecutecriminal cases within the jurisdiction of theSandiganbayan;

(b) To enter into plea bargaining agreements; and(c) To perform such other duties assigned to it by theOmbudsman.

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

Sec. 15. Powers, Functions and Duties. - The Officeof the Ombudsman shall have the following powers,functions and duties:

(1) Investigate and prosecute on its own or oncomplaint by any person, any act or omission of anypublic officer or employee, office or agency, whensuch act or omission appears to be illegal, unjust,improper or inefficient. It has primary jurisdiction

over cases cognizable by the Sandiganbayan and, inthe exercise of his primary jurisdiction, it may takeover, at any stage, from any investigatory agency ofgovernment, the investigation of such cases;

(2) Direct, upon complaint or at its own instance, anyofficer or employee of the Government, or of anysubdivision, agency or instrumentality thereof, aswell as any government-owned or controlledcorporations with original charter, to perform andexpedite any act or duty required by law, or to stop,prevent, and correct any abuse or impropriety inthe performance of duties;chan robles virtual lawlibrary

(3) Direct the officer concerned to take appropriateaction against a public officer or employee at faultor who neglects to perform an act or discharge aduty required by law, and recommend his removal,suspension, demotion, fine, censure, or prosecution,and ensure compliance therewith; or enforce itsdisciplinary authority as provided in Section 21ofthis Act: Provided, That the refusal by any officerwithout just cause to comply with an order of theOmbudsman to remove, suspend, demote, fine,censure, or prosecute an officer or employee who isat fault or who neglects to perform an act ordischarge a duty required by law shall be a groundfor disciplinary action against said officer;

(4) Direct the officer concerned, in any appropriatecase, and subject to such limitations as it mayprovide in its rules of procedures, to furnish it withcopies of documents relating to contracts ortransactions entered into by his office involving thedisbursement or use of public funds or properties,and report any irregularity to the Commission onAudit for appropriate action;

(5) Request any government agency for assistance andinformation necessary in the discharge of its

responsibilities, and to examine, if necessary,pertinent records and documents;

(6) Publicize matters covered by its investigation of thematters mentioned in paragraphs (1), (2), (3) and(4) hereof, when circumstances so warrant and withdue prudence: Provided, that the Ombudsmanunder its rules and regulations may determine whatcases may not be made public: Provided further,That any publicity issued by the Ombudsman shallbe balanced, fair and true;

(7) Determine the causes of inefficiency, red tape,mismanagement, fraud, and corruption in thegovernment and make recommendations for theirelimination and the observance of high standards of

ethics and efficiency;(8) Administer oaths, issue subpoena and subpoenaduces tecum, and take testimony in anyinvestigation or inquiry, including the power toexamine and have access to bank accounts andrecords;

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

(10) Delegate to the Deputies, or its investigators orrepresentatives such authority or duty as shallensure the effective exercise or performance of thepowers, functions, and duties herein or hereinafterprovided;

(11) Investigate and initiate the proper action for the

recovery of ill-gotten and/or unexpired wealthamassed after February 25, 1986 and theprosecution of the parties involved therein.

The Ombudsman shall give priority to complaints filedagainst high ranking government officials and/orthose occupying supervisory positions, complaintsinvolving grave offenses as well as complaintsinvolving large sums of money and/or properties.

Velasco vs Casaclang294 SCRA 395 August 19, 1998

Ponente: Purisima

Nature: Special Civil Action in the Supreme Court.Certiorari and Prohibition.

Facts:

COA Audit Examiners conducted a special auditof selected transactions of the AFP LogisticsCommand involving the procurement of acertain amount of stainless steel meat cans.(what are meat cans? I dont know.) In theirMemorandum Report, the examiners stated thatthey found the procurement of 28,432 pieces ofmeat cans to be of doubtful validity. Thetransaction cycle from preparation to purchaseorders were all completed in just one day and


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Page 10 of33tha the tree of the four winning bidders havecommon incorporators. Subsequently, the auditexaminers filed with the Office of theOmbudsman a Joint Affidavit-Complaint,deploring the aforesaid transactions dubbed asanomalous and highly irregular.

The Deputy Ombudsman issued an Orderdirecting the herein petitioner and her co-accused to file a counter-affidavit and othercontroverting evidence, failure of which shall beconstrued as a waiver of their right to be heardand the premilinary investigation, after whichthe case shall proceed accordingly. Velasco fileda motion to direct the complainant auditexaminers to particularize the offenses. TheDeputy Ombudsman, without a word from theCOA, issued an Order stating that petitioner wasbeing charged with a violation of certainprovisions of RA 3019. Velasco then filed aMotion to Quash, saying that the auditexaminers did not charge an offense. TheDeputy Ombudsman denied the motion toquash, saying that AO No. 07 does not allowsuch a motion.

Issue: WON the conduction of a preliminaryinvestigation is within the jurisdiction of the DeputyOmbudsman

Held//Ratio:Yes.

Velasco argued that pursuant to Section 11,par.4, subpar. (a) of RA 6770, the Office of theSpecial Prosecutor is vested with the power andauthority to conduct preliminary investigationand to prosecute criminal cases falling withinthe jurisdiction of the Sandiganbayan.

Section 2 of Rule 112 provides that such otherofficers as may be authorized by law mayconduct preliminary investigation. UnderSection 15 of RA 6770, it is provided that theOffice of the Ombudsman has primaryjurisdiction over cases cognizable bytheSandiganbayan and... may take over, at anystage, from any investigatory agency of theGovernment, the investigation of such case.

It is beyond cavil that the Ombudsman and hisDeputies are, within, legal contemplation, otherofficers authorized by law to conductpreliminary investigation.

As to determination of offense: Embraced in thepowers of the Ombudsman is the discretionarypower to define, supervise and control the

methodology and procedure his office mayadopt in connection with its investigative power.Conformably, the Deputy Ombudsman has theauthority to decide what offense/s to charge onthe basis of the evidence before him.

Balgos et. al vs. SandiganbayanG.R. No. 85590 / August 10, 1989 / En banc /

Gancayco, J.

Facts:April 18, 1986 Petitioners were charged with violation

of Section 3(c) of Republic Act No. 3019, otherwise

known as the Anti-Graft and Corrupt Practice Act inan information that was filed with theSandiganbayan by the Special Prosecutor which wasapproved by the Deputy Tanodbayan, after apreliminary investigation. (The information statesthat they enforced a Writ of Execution against aMustang car registered in the name of LeticiaAcosta-Ang, despite their knowledge that theregistered owner is not the judgment debtor in aCivil Case No. 4047).

March 18,1987 - Antonio Uy Lim, the plaintiff in CivilCase No. 4047 filed a complaint for rescission of thesale of the car by Juanito Ang to private respondentLeticia Acosta-Ang for being allegedly in fraud ofcreditors. The complaint was docketed as Civil CaseNo. 5307. On the same day, petitioners filed amotion for reinvestigation in the Tanodbayan whichwas granted.

April 22, 1988 - The Tanodbayan filed with theSandiganbayan a motion to withdraw theinformation against petitioners which was denied.On September 1, 1988, petitioners filed a motion to

suspend proceedings in the criminal case againstthem on the ground of the existence of a prejudicialquestion in Civil Case No. 5307 which was alsodenied.

Issue: Does the denial by the Sandiganbayan of the 2motions (withdraw the information and suspendproceedings on the ground of a prejudicial questionin a pending civil action) constitute a grave abuse ofdiscretion despite a new finding in the investigationdone by the Tandobayan?

Held: No.

Ratio: While the public prosecutor has the sole

direction and control in the prosecution of offenses,once the complaint or information is filed in court,the court thereby acquires jurisdiction over the caseand all subsequent actions that may be taken bythe public prosecutor in relation to the disposition ofthe case must be subject to the approval of the saidcourt.

In such an instance, before a re-investigation of thecase may be conducted by the public prosecutor,the permission or consent of the court must besecured. And if after such reinvestigation theprosecution finds a cogent basis to withdraw theinformation or otherwise cause the dismissal of thecase, such proposed course of action must beaddressed to the sound discretion of the court.

The only instance when the appellate court should staythe hand of the trial court in such cases is when it isshown that the trial court acted without jurisdictionor in excess of its jurisdiction or otherwisecommitted a grave abuse of discretion amounting tosuch lack or excess of jurisdiction.

Upon reinvestigation of the criminal case by theTanodbayan, he found evidence tending to showthat the sale of said car to the complainant byJuanita Ang, the judgment debtor, was a sham


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Page 11 of33intended to defraud his creditors; that the deed ofabsolute sale appeared to be fictitious; that uponthe execution of the judgment, the car was found inthe possession of Alvin, the son of Juanita Ang, whoadmitted that the car belonged to his father byshowing the receipt of its repair in the name ofJuanita Ang. This is the basis of the motion forwithdrawal of the information of the Tanodbayan.

Although at the reinvestigation, the Tanodbayan was

persuaded that in fact the sale of the car to LeticiaAng was fraudulent, this did not necessarily clearpetitioners of the aforesaid Anti-Graft chargeagainst them. Still the burden is on the petitionersto establish that they acted in good faith inproceeding with the execution on the car even theywere presented evidence tending to show it did notbelong to Juanito Ang anymore. The pending civilcase for the annulment of the sale of the car toLeticia Ang (Civil Case No. 5307) is notdeterminative of the guilt or innocence of thepetitioners for the acts allegedly committed by themin seizing the car. Even if the sale was void, itdoesnt follow that the car was rightfully taken.

The pending civil case for the annulment of the sale ofthe car to Leticia Ang (Civil Case No. 5307) is notdeterminative of the guilt or innocence of thepetitioners for the acts allegedly committed by themin seizing the car. Even if in the civil action it isultimately resolved that the sale was null and void,it does not necessarily follow that the seizure of thecar was rightfully undertaken.

Alonzo v ConcepcionDate: January 17, 2005

Ponente: Puno

Facts: May 10, 2003 - At a wedding party, SPO4 Alonzo,

Rances, Salamat and Santos were drinking togetherin the same table. While waiting to be seated,Pedrito Alonzo was introduced by SPO4 Alonzo toRances as his nephew and as the son of ex-CaptainAlonzo. SPO4 Alonzo then introduced him toSalamat. Pedrito and his companions took theirseats and started drinking at the table across SPO4Alonzo's table. After some time, Pedrito stood up tourinate at the back of the house. Santos passed abag to Salamat, and they followed Pedrito. Ranceslikewise followed them. A shot rang out. Salamatwas seen placing a gun inside the bag as he

hurriedly left. The wedding guests ran afterSalamat. They saw him and Rances board a vehiclebeing driven by Santos. Pedrito's uncle, Jose Alonzo,sought the help of SPO4 Alonzo to chase theculprits. He refused and even disavowed anyknowledge as to their identity.

Jose Alonzo filed a complaint for murder againstSalamat, Rances, Santos, SPO4 Alonzo and a certainIsidro Atienza.

Pursuant to the preliminary investigation conducted,it was recommended that Salamat be charged withmurder as principal, and Santos and Rances asaccessories. With regard to SPO4 Alonzo and IsidroAtienza, the prosecutor found that no sufficient

evidence was adduced to establish their conspiracywith Salamat. Thereafter, an Information wasprepared, charging Salamat as principal, andRances and Santos as accessories, for the murder ofPedrito. No bail was recommended.

December 17, 2003 - Judge Concepcion issued anorder 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 Prosecutorof Bulacan to amend the information, so as toinclude all the aforenamed persons as accused inthis case, all as principals, within five (5) days fromnotice hereof.

January 5, 2004 - SPO4 Alonzo filed his Motion forReconsideration.

Court had no authority to review and reversethe resolution of the Office of the ProvincialProsecutor or to find probable cause againsthim for the purpose of amending theInformation.

Prosecutor's resolution can only be reviewedby the Department of Justice, by the Court ofAppeals or by the Supreme Court, when a

case for certiorari is filed. January 12, 2004 - SPO4 Alonzo filed an Urgent

Motion for Inhibitation. By issuing the aforementioned Order, Judge

Concepcion has shown his prejudice againsthim and bias in favor of private complainantJose Alonzo. He prayed that the case be re-raffled to another judge.

January 13, 2004 - Judge Concepcion issued anOrder denying the Motion for Reconsideration andthe Motion for Inhibition. Judge Concepcion statedthat SPO4 Alonzo had no personality to file the saidmotions as he was not an accused in that case. Heheld that only the Office of the Provincial Prosecutor

could question the first Order. January 16, 2004 - SPO4 Alonzo filed a verified

affidavit-complaint. He accused respondent judge of: a) gross

ignorance of the law; b) violation of Section2, Article 3 of the 1987 Constitution; c)abuse of authority under Section 6, Rule 112of the Rules of Court; d) knowinglyrendering an unjust order; e) conductunbecoming of a judge; and f) oppressionand partiality,

February 26, 2004 Judge Concepcion received theFirst Indorsement from the Office of the CourtAdministrator (OCA), requiring him to file his

comment to the complaint within ten days fromreceipt thereof. March 4, 2004 Judge Concepcion filed his

comment.o He claimed that while evaluating the

records of the case, his curiosity was piquedas to why no bail was recommended for thethree accused. He noticed that the fivewitnesseswho testified during thepreliminary investigation had consistentaccounts of the incidents leading to thedeath of Pedrito. From these accounts,respondent concluded that SPO4 Alonzo andall the accused conspired to kill Pedrito,


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Page 12 of33thus the Office of the Provincial Prosecutorerred when it merely charged Salamat asprincipal, and Rances and Santos asaccessories, while complainant wasexonerated.

o Respondent stressed that he bade theprosecution to amend the Information "xxxwithout any sanction even hinted, should itfail to do so."

The OCA recommended that the complaint bedismissed on the ground that the Order and the actscomplained of were done by respondent in hisjudicial capacity and were not actuated by bad faith,dishonesty or similar motive. In addition, the properremedy of the aggrieved party is to file a specialcivil action for certiorari under Rule 65 of the Rulesof 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 ajudge and is reprimanded.

Ratio:

Jude Concepcion overlooked the fact that there is aremedy where a prosecutor errs in not charging aperson in an Information. The recourse is to appealto the Secretary of Justice.By ordering theprosecutor to include complainant, Rances andSantos as principals in the Information, respondentarrogated unto himself the executive power ofsupervision and control over public prosecutors. Hisconduct is not only unbecoming of a judge; moreimportantly, it transgresses our Constitution.

It is not a sufficient excuse for respondent to averthat he did not impose any sanction for non-compliance with his Order. In itself, his Order doesviolence to the principle of separation of powersenshrined in our Constitution. In a clash of viewsbetween the judge who did not investigate and theprosecutor who did, or between the fiscal and theoffended party or the accused, that of theprosecutor's should normally prevail.

Respondent judge also erred when he issuedwarrants of arrest for Rances and Santos withoutbail. As the Information has not yet been amendedcharging these two accused as principals to thecrime of murder, they are still entitled, as mereaccessories, to bail under Rule 114, Section 4 of theRevised Rules of Criminal Procedure. The Courtnotes with approval that respondent corrected thiserror by allowing Rances and Santos, with therecommendation of the prosecution, to post bail. Forlack of evidence, respondent is exonerated of theother charges brought against him.

Notes:

The rules set the proper procedurefor theinvestigation of complaints and designate theprosecutor to conduct the preliminary investigation.The function of a preliminary investigation is todetermine whether there is sufficient ground to

engender a well-founded belief that a crime hasbeen committed and the respondent is probablyguilty thereof, and should be held for trial.It isthrough the conduct of a preliminary investigationthat the prosecutor determines the existence of aprima facie case that would warrant the prosecutionof a case. As a rule, courts cannot interferewith the prosecutor's discretion and control ofthe criminal prosecution. The reason for placingthe criminal prosecution under the direction and

control of the fiscal is to prevent malicious orunfounded prosecution by private persons. Howeverwhile prosecuting officers have the authority toprosecute persons shown to be guilty of a crime,they have equally the legal duty not to prosecutewhen after an investigation, the evidence adducedis not sufficient to establish aprima facie case.Judges should not unduly interfere with theexercise of the power to prosecute on the partof fiscals.

It stands to reason then to say that in a clash ofviews between the judge who did not investigateand the fiscal who did, or between the fiscal and theoffended party or the defendant, those of the

Fiscal's should normally prevail. In this regard, hecannot ordinarily be subject to dictation. We are not to be understood as saying that criminal

prosecution may not be blocked in exceptionalcases. A relief in equity "may be availed of to stop apurported enforcement of a criminal law where it isnecessary (a) for the orderly administration ofjustice; (b) to prevent the use of the strong arm ofthe law in an oppressive and vindictive manner; (c)to avoid multiplicity of actions; (d) to affordadequate protection to constitutional rights; and (e)in proper cases, because the statute relied upon isunconstitutional or was "held invalid.'"

D. Scope

Paderanga v. DrilonRegalado | April 19, 1991

FACTS:1) Information for multiple murder was filed in the

Regional Trial Court, Gingoog City, against FelipeGalarion, Manuel Sabit, Cesar Sabit, Julito Ampo,Eddie Torion, John Doe, Peter Doe and Richard Doe,for the deaths on May 1, 1984 of Renato Bucag, hiswife Melchora Bucag, and their son Renato Bucag II.

2) Only Felipe Galarion was tried and found guilty ascharged. The rest of the accused remained at large.Felipe Galarion, however, escaped from detention

and has not been apprehended since then3) In an amended information filed on October 6, 1988Felizardo Roxas, alias "Ely Roxas," "Fely Roxas" and"Lolong Roxas," was included as a co-accused.Roxas retained petitioner Paderanga as his counsel.

4) Petitioner filed, among others, an Omnibus Motionto dismiss, to Quash the Warrant of Arrest and toNullify the Arraignment

5) In the course of the preliminary investigation,through a signed affidavit, Felizardo Roxasimplicated herein petitioner(what a client/ friend ehnoh?) in the commission of the crime charged.

ISSUES:


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Page 13 of33WON there is a probable cause to justify his inclusion in

the case. YESWON the preliminary investigation towards him was

completed. YES

REASONINGPreliminary investigation is generally inquisitorial, and it

is often the only means of discovering the personswho may be reasonably charged with a crime, toenable the fiscal to prepare his complaint or

information. It is not a trial of the case on the meritsand has no purpose except that of determiningwhether a crime has been committed and whetherthere is probable cause to believe that the accusedis guilty thereof, and it does not place the personagainst whom it is taken in jeopardy.

The institution of a criminal action depends upon thesound discretion of the fiscal. He has the quasi-judicial discretion to determine whether or not acriminal case should be filed in court. Hence, thegeneral rule is that an injunction will not be grantedto restrain a criminal prosecution. The ff areexceptions to the rule:

a. To afford adequate protection to the constitutionalrights of the accused;

b. When necessary for the orderly administration ofjustice or to avoid oppression or multiplicity ofactions;

c. When there is a pre-judicial question which is subjudice;

d. When the acts of the officer are without or in excessof authority;

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

f. When double jeopardy is clearly apparent;g. Where the court has no jurisdiction over the offense;

h. Where it is a case of persecution rather thanprosecution;i. Where the charges are manifestly false and motivated

by the lust for vengeance; andj. When there is clearly no prima facie case against the

accused and a motion to quash on that ground hasbeen denied.

The case at bar, does not fall into the exceptions

Paderanga had already filed his counter-affidavit,pursuant to the subpoena issued to him on April 17,1989, wherein he controverted the charge againsthim and dismissed it as a malicious design of hispolitical opponents and enemies to link him to the

crime. We hold that this is sufficient compliancewith the procedural requirement of the Rules ofCourt, specifically Section 3(b) of Rule 112 thereof.Besides, petitioner failed to show that the subpoenaissued on April 25, 1989 involved a separatecomplaint charging an offense different and distinctfrom that charged in the complaint attached to thefirst subpoena issued to him earlier. The veracityand credibility of the witnesses and theirtestimonies are matters of defense bestaddressed to the trial court for itsappreciation and evaluation.

Petitioner further submits that there is no primafacie evidence, or probable cause, or sufficientjustification to hold him to a tedious and prolongedpublic trial, on the basis of the following grounds:the questioned resolution of respondent Gingoyon isfull of factual misrepresentations ormisapprehensions; respondent's reliance on thedecision of the Regional Trial Court against FelipeGalarion suffers from constitutional and proceduralinfirmities considering that petitioner was not a

party thereto, much less was he given anyopportunity to comment on or rebut the prosecutionevidence; reliance on Rogelio Hanopol's testimony islikewise "contemptible," it being merely hearsay inaddition to the fact that petitioner was never giventhe opportunity to cross-examine Hanopol at thetime he testified in court; and the affidavit of Roxasdated March 30, 1989, which is the only evidenceagainst petitioner, has been rendered nugatory byhis affidavit of retraction dated June 20, 1990.

A preliminary investigation is defined as an inquiry orproceeding for the purpose of determining whetherthere is sufficient ground to engender a well

founded belief that a crime cognizable by theRegional Trial Court has been committed and thatthe respondent is probably guilty thereof, andshould be held for trial. The quantum of evidencenow required in preliminary investigation issuch evidence sufficient to "engender a wellfounded belief as to the fact of thecommission of a crime and the respondent'sprobable guilt thereof. A preliminaryinvestigation is not the occasion for the fulland exhaustive display of the parties'evidence; it is for the presentation of suchevidence only as may engender a wengrounded belief that an offense has beencommitted and that the accused is probablyguilty thereof. We are in accord with the stateprosecutor's findings in the case at bar that thereexists prima facie evidence of petitioner'sinvolvement in the commission of the crime, it beingsufficiently supported by the evidence presentedand the facts obtaining therein.

It is a fundamental principle that the accused in apreliminary investigation has no right to cross-examine the witnesses which the complainant maypresent. Section 3, Rule 112 of the Rules of Courtexpressly provides that the respondent shall onlyhave the right to submit a counter-affidavit, toexamine all other evidence submitted by the

complainant and, where the fiscal sets a hearing topropound clarificatory questions to the parties ortheir witnesses, to be afforded an opportunity to bepresent but without the right to examine or cross-examine. Thus, even if petitioner was not given theopportunity to cross-examine Galarion and Hanopolat the time they were presented to testify duringthe separate trial of the case against Galarion andRoxas, he cannot assert any legal right to cross-examine them at the preliminary investigationprecisely because such right was never available tohim. The admissibility or inadmissibility of saidtestimonies should be ventilated before the trial


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Page 14 of33court during the trial proper and not in thepreliminary investigation.

The technical rules on evidence are not binding on thefiscal who has jurisdiction and control over theconduct of a preliminary investigation. If by its verynature a preliminary investigation could be waivedby the accused, we find no compelling justificationfor a strict application of the evidentiary rules.

II. Procedure in cases where preliminaryinvestigation required

A. In cases cognizable by RTC1. Conducted by prosecutor

- Rule 112, secs. 3, 4, 6, 8;- RJCL, sec. 13;

Sec. 3. Procedure. The preliminary investigation shallbe conducted in the following manner:

(a) The complaint shall state the address of therespondent and shall be accompanied by the

affidavits of the complainant and his witnesses, aswell as other supporting documents to establishprobable cause. They shall be in such number ofcopies as there are respondents, plus two (2) copiesfor the official file. The affidavits shall be subscribedand sworn to before any prosecutor or governmentofficial authorized to administer oath, or, in theirabsence or unavailability, before a notary public,each of whom must certify that he personallyexamined the affiants and that he is satisfied thatthey voluntarily executed and understood theiraffidavits.

(b) Within ten (10) days after the filing of thecomplaint, the investigating officer shall eitherdismiss it if he finds no ground to continue with theinvestigation, or issue a subpoena to therespondent attaching to it a copy of the complaintand its supporting affidavits and documents.

The respondent shall have the right to examine theevidence submitted by the complainant which hemay not have been furnished and to copy them athis expense. If the evidence is voluminous, thecomplainant may be required to specify those whichhe intends to present against the respondent, andthese shall be made available for examination orcopying by the respondent at his expense.

Objects as evidence need not be furnished a partybut shall be made available for examination,copying, or photographing at the expense of therequesting party.

(c) Within ten (10) days from receipt of the subpoenawith the complaint and supporting affidavits anddocuments, the respondent shall submit hiscounter-affidavit and that of his witnesses and othersupporting documents relied upon for his defense.The counter-affidavits shall be subscribed andsworn to and certified as provided in paragraph (a)of this section, with copies thereof furnished by himto the complainant. The respondent shall not be

allowed to file a motion to dismiss in lieu of acounter-affidavit.

(d) If the respondent cannot be subpoenaed, or ifsubpoenaed, does not submit counter-affidavitswithin the ten (10) day period, the investigatingoffice shall resolve the complaint based on theevidence presented by the complainant.

(e) The investigating officer may set a hearing if

there are facts and issues to be clarified from aparty or a witness. The parties can be present at thehearing but without the right to examine or cross-examine. They may, however, submit to theinvestigating officer questions which may be askedto the party or witness concerned.

The hearing shall be held within ten (10) days fromsubmission of the counter-affidavits and otherdocuments or from the expiration of the period fortheir submission. It shall be terminated within five(5) days.

(f) Within ten (10) days after the investigation, the

investigating officer shall determine whether or notthere is sufficient ground to hold the respondent fortrial.

Sec. 4. Resolution of investigating prosecutorand its review. If the investigating prosecutorfinds cause to hold the respondent for trial, he shallprepare the resolution and information. He shallcertify under oath in the information that he, or asshown by the record, an authorized officer, haspersonally examined the complainant and hiswitnesses; that there is reasonable ground tobelieve that a crime has been committed and thatthe accused is probably guilty thereof; that theaccused was informed of the complaint and of the

evidence submitted against him; and that he wasgiven an opportunity to submit controvertingevidence. Otherwise, he shall recommend thedismissal of the complaint.

Within five (5) days from his resolution, he shallforward the record of the case to the provincial orcity prosecutor or chief state prosecutor, or to theOmbudsman or his deputy in cases of offensescognizable by the Sandiganbayan in the exercise ofits original jurisdiction. They shall act on theresolution within ten (10) days from their receiptthereof and shall immediately inform the parties ofsuch action.

No complaint or information may be filed ordismissed by an investigating prosecutor withoutthe prior written authority or approval of theprovincial or city prosecutor or chief stateprosecutor or the Ombudsman or his deputy.

Where the investigating prosecutor recommends thedismissal of the complaint but his recommendationis disapproved by the provincial or city prosecutoror chief state prosecutor or the Ombudsman or hisdeputy on the ground that a probable cause exists,the latter may, by himself, file the informationagainst the respondent, or direct another assistant


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Page 15 of33prosecutor or state prosecutor to do so withoutconducting another preliminary investigation.

If upon petition by a proper party under such rules asthe Department of Justice may prescribe or motupropio, the Secretary of Justice reverses or modifiesthe resolution of the provincial or city prosecutor orchief state prosecutor, he shall direct the prosecutorconcerned either to file the correspondinginformation without conducting anther preliminary

investigation, or to dismiss or move for dismissal ofthe complaint or information with notice to theparties. The same rule shall apply in preliminaryinvestigations conducted by the officers of theOffice of the Ombudsman.

Sec. 5. Resolution of investigating judge andits review. Within ten (10) days after thepreliminary investigation, the investigating judgeshall transmit the resolution of the case to theprovincial or city prosecutor, or to the Ombudsmanor his deputy in cases of offenses cognizable by theSandiganbayan in the exercise of its originaljurisdiction, for appropriate action. The resolution

shall state the findings of facts and the lawsupporting his action, together with the record ofthe case which shall include: (a) the warrant, if thearrest is by virtue of a warrant; (b) the affidavits,counter-affidavits and other supporting evidence ofthe parties; (c) the undertaking or bail of theaccused and the order for his release; (d) thetranscripts of the proceedings during thepreliminary investigation; and (e) the order ofcancellation of his bail bond, if the resolution is forthe dismissal of the complaint.

Within thirty (30) days from receipt of the records,the provincial or city prosecutor, or the Ombudsmanor his deputy, as the case may be, shall review the

resolution of the investigating judge on theexistence of probable cause. Their ruling shallexpressly and clearly state the facts and the law onwhich it is based and the parties shall be furnishedwith copies thereof. They shall order the release ofan accused who is detained if no probable cause isfound against him.

Sec. 6. When warrant of arrest may issue. (a)By the Regional Trial Court. Within ten (10) daysfrom the filing of the complaint or information, thejudge shall personally evaluate the resolution of theprosecutor and its supporting evidence. He mayimmediately dismiss the case if the evidence onrecord clearly fails to establish probable cause. If hefinds probable cause, he shall issue a warrant ofarrest, or a commitment order if the accused hasalready been arrested pursuant to a warrant issuedby the judge who conducted the preliminaryinvestigation or when the complaint or informationwas filed pursuant to section 7 of this Rule. In caseof doubt on the existence of probable cause, thejudge may order the prosecutor to presentadditional evidence within five (5) days from noticeand the issue must be resolved by the court withinthirty (30) days from the filing of the complaint ofinformation.chan robles virtual law library

(b) By the Municipal Trial Court. When requiredpursuant to the second paragraph of section of thisRule, the preliminary investigation of cases fallingunder the original jurisdiction of the MetropolitanTrial Court, Municipal Trial Court in Cities, MunicipalTrial Court, or Municipal Circuit Trial Court may beconducted by either the judge or the prosecutor.When conducted by the prosecutor, the procedurefor the issuance of a warrant of arrest by the judgeshall be governed by paragraph (a) of this section.

When the investigation is conducted by the judgehimself, he shall follow the procedure provided insection 3 of this Rule. If his findings andrecommendations are affirmed by the provincial orcity prosecutor, or by the Ombudsman or hisdeputy, and the corresponding information is filed,he shall issue a warrant of arrest. However, withoutwaiting for the conclusion of the investigation, thejudge may issue a warrant of arrest if he finds afteran examination in writing and under oath of thecomplainant and his witnesses in the form ofsearching questions and answers, that a probablecause exists and that there is a necessity of placingthe respondent under immediate custody in order

not to frustrate the ends of justice.

(c) When warrant of arrest not necessary. A warrantof arrest shall not issue if the accused is alreadyunder detention pursuant to a warrant issued by themunicipal trial court in accordance with paragraph(b) of this section, or if the complaint or informationwas filed pursuant to section 7 of this Rule or is foran offense penalized by fine only. The court shallthem proceed in the exercise of its originaljurisdiction.

Sec. 7. When accused lawfully arrested withoutwarrant. When a person is lawfully arrestedwithout a warrant involving an offense which

requires a preliminary investigation, the complaintor information may be filed by a prosecutor withoutneed of such investigation provided an inquest hasbeen conducted in accordance with existing rules.In the absence or unavailability of an inquestprosecutor, the complaint may be filed by theoffended party or a peace officer directly with theproper court on the basis of the affidavit of theoffended party or arresting officer or person.

Before the complaint or information is filed, theperson arrested may ask for a preliminaryinvestigation in accordance with this Rule, but hemust sign a waiver of the provision of Article 125 ofthe Revised Penal Code, as amended, in thepresence of his counsel. Notwithstanding thewaiver, he may apply for bail and the investigationmust be terminated within fifteen (15) days from itsinception.

After the filing of the complaint or information incourt without a preliminary investigation, theaccused may, within five (5) days from the time helearns of its filing, ask for a preliminaryinvestigation with the same right to adduceevidence in his defense as provided in this Rule.


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Page 16 of33Sec. 8. Records. (a) Records supporting theinformation or complaint. An information orcomplaint filed in court shall be supported by theaffidavits and counter-affidavits of the parties andtheir witnesses, together with the other supportingevidence and the resolution on the case.

(b) Record of preliminary investigation. The recordof the preliminary investigation, whether conductedby a judge or a prosecutor, shall not form part of

the record of the case. However, the court, on itsown initiative or on motion of any party, may orderthe production of the record or any of its part whennecessary in the resolution of the case or anyincident therein, or when it is to be introduced as anevidence in the case by the requesting party.

RJCL Sec. 13. Preliminary Investigation. As far asconsistent with this Rule, the preliminaryinvestigation of a juvenile in conflict with the lawshall be governed by Section 3 of Rule 112 of theRevised Rules of Criminal Procedure. If clarificatoryquestions become necessary, the Rule onExamination of a Child Witness shall apply.

If a preliminary investigation is required before the filingof a complaint or information, the same shall beconducted by the judge of the Municipal Trial Courtor the public prosecutor in accordance with thepertinent provisions of Rule 112 of the RevisedRules of Criminal Procedure.

If the investigating prosecutor finds probable cause tohold the juvenile for trial, he shall prepare thecorresponding resolution and information forapproval by the provincial or city prosecutor, as thecase may be. The juvenile, his parents/nearestrelative/guardian and his counsel shall be furnishedforthwith a copy of the approved resolution.

Rodil v. GarciaMay 13, 1981

Fernando 2nd Division

Facts:

Rodil was issued a warrant of arrest for murder His counsel insisted that the witnesses for the

prosecution be recalled to enable him to cross-examine the on clarificatory and amplificatorymatters

He also prayed that Rodil be allowed bail Judge Garcia denied the request thus, this

proceeding for certiorari and prohibition with

preliminary injunction

Issue:1. WON the judge validly denied the prayer for bail2. WON there was grave abuse of discretion in the

refusal to allow Rodils counsel to recall prosecutionwitnesses

Held:1. NO- The judge did not allow Rodil to be heard- What cannot be too sufficiently stressed is that the

procedure to be followed in the hearing on anapplication for bail, while summary in character, is

not to be a mere sham or pretense. It must not bean exercise in futility. The accused is not to bedenied his day in court.

2. NO, because it is not right given to an accused but aprivilege that a judge may grant him

- An accused is not entitled to cross-examine thewitnesses presented against him in the preliminaryinvestigation before his arrest, this being a matterthat depends on the sound discretion of the Judge oinvestigating officer concerned

- To follow the language of Abrera, petitioner as theaccused "was not deprived of any right but wasmerely refused the exercise of a privilege."

- The Abrera decision likewise stands for thisproposition first set forth in the aforecited Dequitocase: "There are an infinite number of things whicha party may not in strict law do or cause to be donebut which may be permitted by the court in theexercise of its discretion and in the interest ofjustice. Specially is this true in matters affecting theconduct of the trial and the calling, recalling andexamination of witnesses."

- "The judge is not a ministerial officer reduced torecording what takes place and what witnesses dayin the examination. Above all, his is the greatresponsibility of safeguarding the accused fromgroundless or vindictive prosecution. If the justice ofthe peace is to ascertain, as he must, whether acrime has been committed and, if so, whether thereis probable cause that the accused committed it, hisauthority cannot be confined as in a straight jacketto the stiffness of medieval and outmodedtechnicalities of practice." 13It thus appears clearlythat in the exercise of his discretion respondentJudge could have granted the request and thusavoided the necessity of this character having to befiled.

- The interest of a more speedy and a more efficientadministration of justice would be best served ifthere is a greater awareness on the part of judgesthat in addition to safeguarding the express rightsof an accused person, a matter mandated by theConstitution or the Rules of Court, they shouldlikewise exercise their discretion in such a way thatthe purpose of a preliminary investigation, theavoidance of groundless or vindictive prosecutions,could be attained in as fair and objective manner aspossible

(Allado vs. Diokno supra case, rule 113 first case)

2. Conducted by MTC JudgeRule 112, secs. 3, 5, 6, 8; (see above)- RJCL, sec. 13; (see above)

B. In cases cognizable by MTC1. Conducted by prosecutor- Rule 112, secs. 1 [par. 2] 3, 4, 6, 8;- RJCL, sec. 13;

2. Conducted by MTC Judge- Rule 112, secs. 3, 5, 6, 8;- RJCL, sec. 13;

C. In cases cognizable by Sandiganbayan


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Page 17 of331. Conducted by prosecutor or MTC Judge- Rule 112, secs. 3, 4, 5, 8;

2. Conducted by Ombudsman/Special Prosecutor- RA 6770 (posted online, did anyone print this?)- Administrative Order No. 07, Rule II, secs. 1,

2, 4, 5, 6, 7;

Administrative Order No. 07Rules of Procedure of the Office of the

Ombudsman

Rule II: PROCEDURE IN CRIMINAL CASES

Section 1. Grounds A criminal complaint may bebrought for an offense in violation of R.A. 3019, asamended, R.A. 1379 as amended, R.A. 6713, TitleVII, Chapter II, Section 2 of the Revised Penal Code,and for such other offenses committed by publicofficers and employees in relation to office.

Section 2. Evaluation Upon evaluating thecomplaint, the investigating officer shallrecommend whether it may be:

a) dismissed outright for want of palpable merit;b) referred to respondent for comment;c) indorsed to the proper government office or agency

which has jurisdiction over the case;d) forwarded to the appropriate office or official for fact-

finding investigation;e) referred for administrative adjudication; orf) subjected to a preliminary investigation.

Section 3. Preliminary investigation; who mayconduct. Preliminary Investigation may beconducted by any of the following:

1) Ombudsman Investigators;2) Special Prosecuting Officers;3) Deputized Prosecutors;

4) Investigating Officials authorized by law to conductpreliminary investigations or

5) Lawyers in the government service, so designated bythe Ombudsman.

Section 4. Procedure The preliminary investigationof cases falling under the jurisdiction of theSandiganbayan and Regional Trial Courts shall beconducted in the manner prescribed in Section 3,Rule 112 of the Rules of Court, subject to thefollowing provisions:

a) If the complaint is not under oath or is based only onofficial reports, the investigating officer shall requirethe complainant or supporting witnesses to executeaffidavits to substantiate the complaints.

b) After such affidavits have been secured, theinvestigating officer shall issue an order, attachingthereto a copy of the affidavits and other supportingdocuments, directing the respondents to submit,within ten (10) days from receipt thereof, hiscounter-affidavits and controverting evidence withproof of service thereof on the complainant. Thecomplainant may file reply affidavits within ten (10)days after service of the counter- affidavits.

c) If the respondents does not file a counter-affidavit,the investigating officer may consider the commentfiled by him, if any, as his answer to the complaint.In any event, the respondent shall have access tothe evidence on record.

d) No motion to dismiss shall be allowed except for lackof jurisdiction. Neither may a motion for a bill ofparticulars be entertained. If respondents desiresany matter in the complainant's affidavit to be

clarified, the particularization thereof may be doneat the time of clarificatory questioning in themanner provided in paragraph (f) of this section.

e) If the respondents cannot be served with the ordermentioned in paragraph 6 hereof, or having beenserved, does not comply therewith, the complaintshall be deemed submitted for resolution on thebasis of the evidence on the record.

f) If, after the filing of the requisite affidavits and theirsupporting evidences, there are facts material tothe case which the investigating officer may need tobe clarified on, he may conduct a clarificatory

hearing during which the parties shall be affordedthe opportunity to be present but without the rightto examine or cross-examine the witness beingquestioned. Where the appearance of the parties orwitnesses is impracticable, the clarificatoryquestioning may be conducted in writing, wherebythe questions desired to be asked by theinvestigating officer or a party shall be reduced intowriting and served on the witness concerned whoshall be required to answer the same in writing andunder oath.

g) Upon the termination of the preliminaryinvestigation, the investigating officer shall forwardthe records of the case together with his resolution

to the designated authorities for their appropriateaction thereon.

No information may be filed and no complaint may bedismissed without the written authority or approvalof the Ombudsman in cases falling within thejurisdiction of the Sandiganbayan, or of the properDeputy Ombudsman in all other cases.

Section 5. Cases falling under the jurisdiction ofmunicipal trial courts. Cases falling under thejurisdiction of the Office of the Ombudsman whichare cognizable by municipal trial courts, includingthose subject to the Rule on Summary Proceduremay only be filed in court by information approvedby the Ombudsman or the proper DeputyOmbudsman.

Section 6. Notice to parties. The parties shall beserved with a copy of the resolution as finallyapproved by the Ombudsman or by the properDeputy Ombudsman.

Section 7. Motion for reconsideration -

a) Only one motion for reconsideration orreinvestigation of an approved order or resolutionshall be allowed, the same to be filled within five (5)


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Page 18 of33days from notice thereof with the Office of theOmbudsman, or the proper

Deputy Ombudsman as the case may be, withcorresponding leave of court in cases whereinformation has already been filed in court;

b) The filing of a motion forreconsideration/reinvestigation shall not bar thefiling of the corresponding information in Court onthe basis of the finding of probable cause in the

resolution subject of the motion. (As amended byAdministrative Order No. 15, dated February 16,2000)

III. Procedure in cases not requiring apreliminary investigation

A. MTC cases or those covered by summaryprocedure

- Rule 112, sec. 9;

Sec. 9. Cases not requiring a preliminary

investigation nor covered by the Rule onSummary Procedure. (a) If filed with theprosecutor. If the complaint is filed directly withthe prosecutor involving an offense punishable byimprisonment of less than four (4) years, two (2)months and one (1) day, the procedure outlined insection 3(a) of this Rule shall be observed. Theprosecutor shall act on the complaint based on theaffidavits and other supporting documentssubmitted by the complainant wi