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RODNEY HEGERTY,petitioner, vs. THE HON. COURT OFAPPEALS and ALLAN NASH, respondents.

D E C I S I O N

YNARES-SANTIAGO,J.:

This petition seeks to annul and set aside the decision of theCourt of Appeals in CA-G.R. SP No. 66680[1] which reversed theresolution[2] of the Office of the City Prosecutor of Manila dismissing

the complaint for estafa filed against petitioner Rodney Hegerty, aswell as the resolution of the Secretary of Justice dismissingrespondent Allan Nashs appeal and denying his motion forreconsideration for having been filed out of time.

Respondent Allan Nash alleged that petitioner Rodney Hegerty,together with the deceased Don Judevine and James Studenski,invited him to invest in a foreign exchange scheme with aguaranteed return of 10.45% per annum on the moneyinvested. From July 1992 to November 28, 1997, Nash invested atotal of US$236,353.34.

Sometime in December 1997, Hegerty informed Nash that allhis investments had been lost after he lent a portion of theinvestment to Swagman Hotels and Travel, Inc., of which he was astockholder. Initially, Hegerty offered to return to Nash half of histotal investment, but later on withdrew the offer.

After his demands were ignored, Nash filed a complaint-affidavit against Hegerty before the City Prosecutor of Manila forestafa under Article 315 (1) (b) of the Revised Penal Code.

For his part, Hegerty denied making any invitation to Nash toinvest his money in any foreign exchange scheme. Neither did hedivert any portion of such investment to the Swagman Group ofCompanies. He, however, admitted his acquaintance with Judevineand Studenski but denied that they were his business partners. Helikewise disclaimed any knowledge of or participation in any of thereceipts and cash vouchers presented by Nash supposedly asproofs of his investments.

The City Prosecutor dismissed the complaint for estafa againstHegerty for insufficiency of evidence. Upon receipt of a copy of thesaid resolution on June 16, 1999, counsel of Nash filed a motion forreconsideration. On May 8, 2000, Nash himself received a copy ofthe resolution denying the motion for reconsideration.

On May 19, 2000, Nash filed an appeal with the Department ofJustice (DOJ), however, the same was dismissed[3] for having beenfiled out of time. He filed a motion for reconsideration, which was

denied again for having been filed beyond the reglementary periodof ten (10) days.

Undaunted, Nash filed with the Court of Appeals a petitionfor certiorari and mandamus under Rule 65 of the 1997 Rules ofCivil Procedure, contending that the DOJ acted in grave abuse ofdiscretion amounting to lack of or in excess of jurisdiction when itdismissed his appeal and denied his motion for reconsideration.

On June 28, 2002, the Court of Appeals rendered the assaileddecision, the dispositive portion of which reads:

WHEREFORE, premises considered, the PETITION is GRANTED. Theundated resolution and 22 August 2001 resolution are REVERSEDand SET ASIDE. The public respondent is directed to prosecuterespondent Hegerty for the crime of estafa under Article 315 (1) (b)of the Revised Penal Code.

SO ORDERED.[4]

Hegerty is now before us on this petition for review, raising thefollowing issues:

I. DOES THE RESPONDENT COURT OF APPEALS HAVEJURISDICTION OVER A CASE WHICH STARTED AT THEOFFICE OF THE PROSECUTOR OF MANILA THENAPPEALED TO THE DEPARTMENT OF JUSTICE BUT WHICHAPPEAL WAS FILED WAY OUT OF TIME?

II. MAY THE RESPONDENT COURT OF APPEALS ACTINGWITHOUT JURISDICTION ORDER THE PROSECUTION OF ACRIMINAL CASE?[5]

Hegerty contends that since Nashs appeal with the DOJ andhis motion for reconsideration were both filed out of time, theprosecutors resolution had become final and

executory. Consequently, the DOJ and the Court of Appeals neveracquired jurisdiction over the case. Corollarily, the Court ofAppeals does not have the authority to order the filing of a case inthe absence of grave abuse of discretion on the part of theprosecutor.

We agree. The rule is settled that our duty in an appropriatecase is confined to determining whether the executive or judicialdetermination, as the case may be, of probable cause was donewithout or in excess of jurisdiction or with grave abuse ofdiscretion. Thus, although it is entirely possible that theinvestigating fiscal may erroneously exercise the discretion lodgedin him by law, this does not render his act amenable to correctionand annulment by the extraordinary remedy ofcertiorari, absent

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any showing of grave abuse of discretion amounting to excess ofjurisdiction.[6]

The pivotal question, therefore, in this case is: whether the CityProsecutor acted with grave abuse of discretion in dismissing thecriminal complaint for estafa against Hegerty.

In D.M. Consunji, Inc. v. Esguerra,[7]we defined grave abuse ofdiscretion in this wise:

By grave abuse of discretion is meant, such capricious andwhimsical exercise of judgment as is equivalent to lack ofjurisdiction. The abuse of discretion must be grave as where thepower is exercised in an arbitrary or despotic manner by reason ofpassion or personal hostility and must be so patent and gross as toamount to an evasion of positive duty or to a virtual refusal toperform the duty enjoined by or to act at all in contemplation oflaw.

The City Prosecutor had the duty to determine whether therewas aprima facie case for estafa based on sufficient evidence thatwould warrant the filing of an information. The elements of estafa

through misappropriation as defined and penalized under Article315 (1) (b) are:

(1) That money, goods, or other personal property be receivedby the offender in trust or on commission, or for administration, orunder any other obligation involving the duty to make delivery of,or to return, the same;

(2) That there be misappropriation or conversion of such moneyor property by the offender, or denial on his part of such receipt;

(3) That such misappropriation or conversion or denial is to theprejudice of another; and

(4) That there is a demand made by the offended party to theoffender.[8]

The City Prosecutor dismissed the complaint for estafa basedon the following findings:

Recouping everything that has been maintained and asserted bythe parties, there is really reason to believe that the complainanthad in fact made some investments with the late DON JUDEVINEwho acknowledged receipts thereof and bound himselfthereby alone. There is, however, an utter and absolute absenceof a showing that the respondent partook of the said investmentsnor had any business dealing with either the late DON JUDEVINE or

the complainant. Complainant also tried in vain to show some formof a partnership between the respondent and the two deceased

individuals but the former failed to adduce any tangible evidence tosupport the same except his general declarations which remainbare as they were.[9]

A public prosecutor, by the nature of his office, is under nocompulsion to file a criminal information where no clear legaljustification has been shown, and no sufficient evidence of guiltnorprima facie case has been presented by the petitioner. [10]

We need only to stress that the determination of probablecause during a preliminary investigation or reinvestigation isrecognized as an executive function exclusively of theprosecutor. An investigating prosecutor is under no obligation tofile a criminal action where he is not convinced that he has thequantum of evidence at hand to support theaverments. Prosecuting officers have equally the duty not toprosecute when after investigation or reinvestigation they areconvinced that the evidence adduced was not sufficient to establishaprima facie case. Thus, the determination of the persons to beprosecuted rests primarily with the prosecutor who is vested withdiscretion in the discharge of this function. [11]

In Quiso v. Sandiganbayan,[12] we pointed out that:

x x x [A] fiscal by the nature of his office, is under no compulsion tofile a particular criminal information where he is not convinced thathe has evidence to support the allegations thereof. Although thispower and prerogative x x x is not absolute and subject to judicialreview, it would be embarrassing for the prosecuting attorney to becompelled to prosecute a case when he is in no position to do so,because in his opinion he does not have the necessary evidence tosecure a conviction, or he is not convinced of the merits of thecase.

The remedy of mandamus does not lie to compel the CityProsecutor to file an Information against petitioner. There being noshowing of grave abuse of discretion which will warrant the reversalof the dismissal of the complaint against petitioner, there is also noground to issue a writ of mandamus. [13] In the case at bar, we findno evidence to prove that the City Prosecutor abused, much lessgravely abused, his discretion when he dismissed the complaint forestafa filed against Hegerty.

Moreover, the appeal filed by respondent with the Departmentof Justice was out of time. Section 2 of DOJ Order No. 223 datedJune 30, 1993, which was then in force, provides:

When to appeal. The appeal must be filed within a period offifteen (15) days from receipt of the questioned resolution by the

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party or his counsel. The period shall be interrupted only by thefiling of a motion for reconsideration within ten (10) days fromreceipt of the resolution and shall continue to run from the time theresolution denying the motion shall have been received by themovant or his counsel.

In the case at bar, respondents counsel received a copy of theresolution of the City Prosecutor dismissing the complaint on June16, 1999. The tenth day, June 26, fell on a Saturday; thus, the

motion for reconsideration was filed on Monday, June 28, 1999. OnMay 8, 2000, respondent received the resolution denying hismotion for reconsideration. He filed an appeal with the Departmentof Justice on May 19, 2000.

Under the above-quoted rule, respondents fifteen-day periodto appeal was interrupted by the filing of the motion forreconsideration on the tenth day. The said period continued to runagain when he received the resolution denying his motion forreconsideration, but only for the remaining period of fivedays. Therefore, respondent only had until May 15, 2000 May 13,2000 was a Saturday within which to appeal. His appeal filed on

May 19, 2000 was clearly out of time.Respondent Nash, however, argues that the service to him of

the resolution of the City Prosecutor denying his motion forreconsideration was invalid inasmuch as he was represented bycounsel. There is no generally accepted practice in the service oforders, resolutions, and processes, which allows service upon eitherthe litigant or his lawyer. While as a rule, notice or service madeupon a party who is represented by counsel is a nullity, this admitsof exceptions, as when the court or tribunal orders service upon theparty or when the technical defect is waived.[14]

The above-quoted DOJ Rule expressly provides that service of

resolutions may be made to the party or his counsel. In thisconnection, we had occasion to rule: [15]

A plain reading of Section 2 of DOJ Order No. 223 clearly shows thatin preliminary investigations, service can be made upon the partyhimself or through his counsel. It must be assumed that when theJustice Department crafted the said section, it was done withknowledge of the pertinent rule in the Rules of Court and ofjurisprudence interpreting it. The DOJ could have just adopted therule on service provided for in the Rules of Court, but didnot. Instead, it opted to word Section 2 of DOJ Order No. 223 insuch a way as to leave no doubt that in preliminary investigations,service of resolutions of public prosecutors could be made uponeither the party or his counsel.

WHEREFORE, in view of the foregoing, the petition isGRANTED. The decision of the Court of Appeals in CA G.R. SP No.66680 is REVERSED and SET ASIDE. The Resolution of the CityProsecutor of Manila, which dismissed the complaint againstpetitioner for estafa, and the Resolution of the Department ofJustice which denied respondents appeal, are REINSTATED. Nocosts.

SO ORDERED.

Davide, Jr., C.J. , (Chairman), Vitug, Carpio andAzcuna,JJ., concur.

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G.R. No. 126005 January 21, 1999

PEOPLE OF THE PHILIPPINES and ALYNN PLEZETTEDY, petitioners,vs.COURT OF APPEALS, BILLY CERBO and JONATHANCERBO, respondents.

PANGANIBAN,J.:

In our criminal justice system, the public prosecutor has the quasi-judicial discretion to determine whether or not case should be filedin court. Courts must. respect the exercise of such discretion whenthe information filed against the accused valid on its face, and nomanifest error, grave abuse of discretion or prejudice can beimputed to the public prosecutor.

The Case

Before us is a Petition for Review under Rule 45, seeking to reversethe June 28, 1996 Decision and the August 27, 1996 Resolution of

the Court of Appeals1

in CA-GR SP No. 36018.2

The assailedDecision dismissed the Petition for Certiorari filed by thepetitioners, which sought to annul and set aside two Orders of theRegional Trial Court of Nabunturan, Davao: the June 28, 1994 Orderdismissing the Information for murder filed against PrivateRespondent Billy Cerbo and the August 18, 1994 Order denyingpetitioners' motion for reconsideration.

The assailed August 27, 1996 Court of Appeals (CA) Resolutionlikewise denied petitioners' motion for reconsideration.

The Facts

The case below arose from the fatal shooting of Petitioner Dy'smother, Rosalinda Dy, in which the primary suspect was PrivateRespondent Jonathan Cerbo, son of Private Respondent Billy Cerbo.

The procedural and factual antecedents of the case weresummarized in the challenged Decision of the Court of Appeals asfollows:

On August 30, 1993, Rosalinda Dy, according to the petition,was shot at pointblank range by private respondentJonathan Cerbo in the presence and at the office of hisfather, private respondent Billy Cerbo at Purok 9, Poblacion,Nabunturan, Davao.

On September 2, 1993, eyewitness Elsa B. Gumbanexecuted an affidavit positively identifying private

respondent Jonathan Cerbo as the assailant. (Annex C, Rollo,p. 34).

On September 20, 1993, private respondent Jonathan Cerboexecuted a counter-affidavit interposing the defense thatthe shooting was accidental (Annex D: Rollo, pp. 35-36).

On October 6, 1993, the 3rd Municipal Circuit Trial Court ofNabunturan-Mawab, Davao, after a preliminary

investigation, found "sufficient ground to engender a well-founded belief" that the crime of murder has beencommitted by private respondent Jonathan Cerbo andresolved to forward the entire records of the case to theprovincial prosecutor at Tagum, Davao (Annex E, Rollo, pp.37-38).

After [an] information for murder was filed against JonathanCerbo, petitioner Alynn Plezette Dy, daughter of the victimRosalinda Dy, executed an affidavit-complaint chargingprivate respondent Billy Cerbo of conspiracy in the killing(Annex F, Rollo, p. 39), supported by a supplementalaffidavit of Elsa B. Gumban, alleging "in addition" to her

previous statement that:

3. In addition to my said sworn statement, Ivoluntarily and freely aver as follows:

a) I vividly recall that while my mistress Rosalinda Goand I were in the office of Billy Cerbo at about 11:45a.m. on August 30, 1993, Mr. Cerbo personallyinstructed me to fetch the food from the kitchen [andto bring it] to the office instead of the dining room.

b) While bringing the food, Mr. Cerbo againinstructed me to place the food [o]n a corner table

and commanded me to sit behind the entrance doorand at the same time Mr. Cerbo positioned Rosalinda[on] a chair facing the entrance door for an easytarget.

c) Immediately after Rosalinda was shot, Mr. BillyCerbo called his son Jonathan who was running, butdid not and ha[s] never bothered to bring Rosalindato a hospital or even apply first aid.

d) To my surprise, Mr. Billy Cerbo, instead of bringingRosalinda to the hospital, brought her to the funeralparlor and immediately ordered her to be embalmed

without even informing her children or any of herimmediate relatives xxx.' Annex G. Rollo, p. 40.)

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Private respondent Billy Cerbo submitted a counter-affidavitdenying the allegations of both petitioner Alynn Plezette Dyand Elsa B. Gumban (Annex H, Rollo, pp. 41-42).

On or about April 8, 1994, Prosecutor Protacio Lumangtadfiled a "Motion for leave of court to reinvestigate the case"(Annex I, Rollo, pp. 43-44) which was granted by therespondent judge in an order dated April 28, 1994 (AnnexJ, Rollo, p. 45).

In his resolution dated May 5, 1994, Prosecutor Lumangtadrecommended the filing of an amended informationincluding Billy Cerbo". . . as one of the accused in the murder case . . ." (AnnexK: Rollo, pp. 46-49).

Accordingly, the prosecution filed an amended informationincluding Billy Cerbo in the murder case. A warrant for hisarrest was later issued on May 27, 1994 (Rollo, p. 27).

Private respondent Billy Cerbo then filed a motion to quashwarrant of arrest arguing that the same was issued without

probable cause (Rollo, p. 27).On June 28, 1994, respondent Judge issued the first assailedorder dismissing the case against Billy Cerbo and recallingthe warrant for his arrest[;] the dispositive portion of [theorder] reads:

IN THE LIGHT OF ALL THE FOREGOING, [an] order ishereby issued DISMISSING the case as against BillyCerbo only.

Let, therefore, the warrant of arrest, dated May 27,1994, be RECALLED.

The prosecution is hereby ordered to withdraw itsAmended Information and file a new one chargingJonathan Cerbo only.

SO ORDERED. (Rollo, pp. 29-30).

Private Prosecutor Romeo Tagra filed a motion forreconsideration which was denied by the respondent judgein his second assailed order dated August 18, 1994 (AnnexB, Rollo, pp. 31-33). 3

The Ruling of the Court of Appeals

In its 10-page Decision, the Court of Appeals debunked petitioners'

assertion that the trial judge committed a grave abuse of discretionin recalling the warrant of arrest and subsequently dismissing the

case against Billy Cerbo. Citing jurisprudence, 4 the appellate courtheld as follows:

The ruling is explicit. If upon the filing of theinformation in court, the trial judge, after reviewingthe information and the documents attached thereto,finds that no probable cause exists, must either callfor the complainant and the witnesses or simplydismiss the case.

Petitioners question the applicability of the doctrinelaid down in the above[-]mentioned case, allegingthat the facts therein are different from the instantcase. We rule that the disparity of facts does notprevent the application of the principle.

We have gone over the supplemental affidavit of ElsaB. Gumban and taking into account the additionalfacts and circumstances alleged therein, we cannotsay that respondent judge gravely abused hisdiscretion in dismissing the case as against privaterespondent Billy Cerbo for lack of probable cause.

xxx xxx xxx

The prosecution, if it really believed that Billy Cerbois probably guilty by conspiracy, should havepresented additional evidence sufficiently andcredibly demonstrating the existence of probablecause.

xxx xxx xxx 5

In sum, the Court of Appeals held that Judge Eugenio Valles did notcommit grave abuse of discretion in recalling the warrant of arrestissued against Private Respondent Billy Cerbo and subsequentlydismissing the Information for murder filed against the privaterespondent, because the evidence presented thus far did notsubstantiate such charge.

Hence, this petition. 6

The Assigned Errors

Petitioner Dy avers:

1) The Court of Appeals gravely erred in holding thatthe Regional Trial Court Judge had the authority toreverse [the public prosecutor's] finding of probablecause to prosecute accused . . . and thus dismiss the

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case filed by the latter on the basis of a motion toquash warrant of arrest.

2) The Court of Appeals gravely erred in fully andunqualifiedly applying the case of Allado, et. al. vs.PACC, et. al. G.R. No. 113630, [to] the case at benchdespite [the] clear difference in their respectivefactual backdrop[s] and the contrary earlierjurisprudence on the matter.7

On the other hand, the solicitor general posits this sole issue:

Whether the Court of Appeals erred in finding that noprobable cause exists to merit the filing of chargesagainst private respondent Billy Cerbo. 8

Essentially, the petitioners are questioning the propriety of the trialcourt's dismissal, for want of evidence, of the Information formurder against Private Respondent Billy Cerbo.

In resolving this petition, the discussion of the Court will revolvearound the points: first, the determination of probable cause as anexecutive and judicial function and, second, the applicability

ofAllado and Salonga to the case at bar.

The Court's Ruling

The petition is meritorious. The trial court erred indismissing the information filed against the privaterespondent. Consequently the Court of Appeals was likewisein error when ias to whether or not it suffices "to engender awell founded belief that a crime has been committed andthat the respondent is probably guilty thereof and should beheld for trial."

It is a function that this Court should not be called upon to

perform.It is a function that properly pertains to the publicprosecutor, one that, as far as crimes cognizable by aRegional Trial Court are concerned, and notwithstandingthat it involves an adjudicative process of a sort, exclusivelypertains, by law, to said executive officer, the publicprosecutor. It is moreover a function that in the establishedscheme of things, is supposed to be performed at the verygenesis of, indeed, prefatorily to, the formal commencementof a criminal action. The proceedings before a publicprosecutor, it may well be stressed, are essentiallypreliminary, prefatory and cannot lead to a final, definiteand authoritative adjudgment of the guilt or innocence of

the persons charged with a felony or crime.

Whether or not that function has been correctly dischargedby the public prosecutor i.e., whether or not he has madea correct ascertainment of the existence of probable causein a case, is a matter that the trial court itself does not andmay not be compelled to pass upon. It is not for instancepermitted for an accused, upon the filing of the informationagainst him by the public prosecutor, to preempt trial byfiling a motion with the Trial Court praying for the quash or

dismissal of the indictment on the ground that the evidenceupon which the same is based is inadequate. Nor is itpermitted, on the antipodal theory that the evidence is intruth inadequate, for the complaining party to present apetition before the Court praying that the public prosecutorbe compelled to file the corresponding information againstthe accused.

xxx xxx xxx

Indeed, the public prosecutor has broad discretion to determinewhether probable cause exists and to charge those whom be or shebelieves to have committed the crime as defined by law. Otherwise

stated, such official has the quasi-judicial authority to determinewhether or not a criminal case list be filed in court. 11Thus,in Crespo v. Mogul, 12 we ruled:

It is a cardinal principle that all criminal actions eithercommenced by complaint or by information shall beprosecuted under the direction and control of the fiscal. Theinstitution of a criminal action depends upon the sounddiscretion of the fiscal. He may or may not file the complaintor information, follow or not follow that presented by theoffended party, according to whether the evidence, in hisopinion, is sufficient or not to establish the guilt of theaccused beyond reasonable doubt. The reason for placing

the criminal prosecution under the direction and control ofthe fiscal is to prevent malicious or unfounded prosecutionsby private persons. . . . Prosecuting officers under the powervested in them by the law, not only have the authority butalso the duty of prosecuting persons who, according to theevidence received from the complainant, are shown to beguilty of a crime committed within the jurisdiction of theiroffice. They have equally the duty not to prosecute whenthe evidence adduced is not sufficient to establish a primafacie case.

This broad prosecutoral power is however nor unfettered, because

just as public prosecutors are obliged to bring forth before the lawthose who have transgressed it, they are also constrained to be

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circumspect in filing criminal charges against the innocent. Thus,for crimes cognizable by regional trial courts, preliminaryinvestigations are usually conducted. In Ledesma v. Court ofAppeals, 13 we discussed the purposes and nature of a preliminaryinvestigation in this manner:

The primary objective of a preliminary investigation is tofree respondent from the inconvenience, expense, ignominyand stress of defending himself/herself in the course of a

formal trial, until the reasonable probability of his or herguilt in a more or less summary proceeding by a competentoffice designated by law for that purpose. Secondarily, suchsummary proceeding also protects the state from theburden of the unnecessary expense an effort in prosecutingalleged offenses and in holding trials arising from false,frivolous or groundless charges.

Such investigation is not part of the trial. A full and exhaustivepresentation of the parties' evidence is not required, but only suchas may engender a well-grounded belief than an offense has beencommitted and that the accused is probably guilty thereof. By

reason of the abbreviated nature of preliminary investigations, adismissal of the charges as a result thereof is not equivalent to ajudicial pronounct upheld such ruling.

Executive Determination

of Probable Cause

The determination of probable cause during a preliminaryinvestigation is a function that belongs to the public prosecutor. Itis an executive function, 9 the correctness of the exercise of whichis matter that the trial court itself does not and may not becompelled to pass upon. The Separate (Concurring) Opinion offormer Chief Justice Andres R. Narvasa in Roberts v. Court of

Appeals10 succinctly elucidates such point in this wise:

xxx xxx xxx

In this special civil action, this Court is being asked toassume the function of a public prosecutor. It is being askedto determine whether probable cause exists as regardspetitioners. More concretely, the Court is being asked toexamine and assess such evidence as has thus far beensubmitted by the parties and, on the basis thereof, make aconclusion ement of acquittal. Hence, no double jeopardyattaches.

Judicial Determination of

Probable Cause

The determination of probable cause to hold a person for trial mustbe distinguished from the determination of probable cause to issuea warrant of arrest, which is a judicial function. The judicialdetermination of probable cause in the issuance of arrest warrantshas been emphasized in numerous cases. In Ho v. People, 14 theCourt summarized the pertinent rulings on the subject, as follows:

The above rulings in Soliven, Inting and Lim,Sr. wereiterated inAllado v. Diokno, where we explained again whatprobable cause means. Probable cause for the issuance of awarrant of arrest is the existence of such facts andcircumstances that would lead a reasonably discreet andprudent person to believe that an offense has beencommitted by the person sought to be arrested. Hence, thejudge, before issuing a warrant of arrest, "must satisfyhimself that based on the evidence submitted, there issufficient proof that a crime has been committed and thatthe person to be arrested is probably guilty thereof." At thisstage of the criminal proceeding, the judge is not yet tasked

to review in detail the evidence submitted during thepreliminary investigation. It is sufficient that he personallyevaluates such evidence in determining probable cause.In Webb v. De Leon we stressed that the judge merelydetermines the probability, not the certainty, of guilt of theaccused and, in doing so, he need not conduct a denovo hearing. He simply personally reviews the prosecutor'sinitial determination finding probable cause to see if it issupported by substantial evidence.

xxx xxx xxx

In light of the aforecited decisions of this Court, such

justification cannot be upheld. Lest we be too repetitive, weonly emphasize three vital matters once more: First, as heldin Inting, the determination of probable cause by theprosecutor is for a purpose different from that which is to bemade by the judge. Whether there is reasonable ground tobelieve that the accused is guilty of the offense charged andshould be held for trial is what the prosecutor passes upon.The judge, on the other hand, determines whether a warrantof arrest should be issued against the accused, i.e., whetherthere is a necessity for placing him under immediatecustody in order not to frustrate the ends of justice. Thus,even if both should base their findings on one and the same

proceeding or evidence, there should be no confusion as totheir distinct objectives.

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Second, since their objectives are different, the judgecannot rely solely on the report of the prosecutor in findingprobable cause to justify the issuance of a warrant of arrest.Obviously and understandably, the contents of theprosecutor's report will support his own conclusion thatthere is reason to charge the accused of an offense and holdhim for trial. However, the judge must decideindependently. Hence, he must have supporting evidence,

other than the prosecutor's bare report, upon which tolegally sustain his own findings on the existence or non-existence of probable cause to issue an arrest order. Thisresponsibility of determining personally and independentlythe existence of non-existence of probable cause is lodgedin him by no less than the most basic law of the land.Parenthetically, the prosecutor could ease the burden of thejudge and speed up the litigation process by forwarding tothe latter not only the information and his bare resolution,but also so much of the records and the evidence on handas to enable His Honor to make his personal and separatejudicial finding on whether to issue a warrant of arrest.

Lastly, It is not required that the complete or entire recordsof the case during the preliminary investigation besubmitted to and examined by the judge. We do not intendto unduly burden trial courts by obliging them to examinethe complete records of every case all the time simply forthe purpose of ordering the arrest of the accused. What isrequired, rather, is that the judge must have sufficientsupporting documents (such as the complaint, affidavits,counter-affidavits, sworn statements of witnesses ortranscript of stenographic notes, if any) upon which to makehis independent judgment, or at the very least, upon whichto verify the findings of the prosecutor as to the existence of

probable cause. The point is: he cannot rely solely andentirely on the prosecutor's recommendation, as theRespondent Court did in this case. Although the prosecutorenjoys the legal presumption of regularity in theperformance of his duties and functions, which in turn giveshis report the presumption of accuracy, the Constitution, werepeat, commands the judge to personally determineprobable cause in the issuance of warrants of arrest. ThisCourt has consistently held that a judge fails in his boundedduty if he relies merely on the certification or the report ofthe investigating officer.

xxx xxx xxx

Verily, a judge cannot be compelled to issue a warrant of arrest ifhe or she deems that there is no probable cause for doing so.Corollary to this principle, the judge should not override the publicprosecutor's determination of probable cause to hold an accusedfor trial on the ground that the evidence presented to substantiatethe issuance of an arrest warrant was insufficient, as in the presentcase.

Indeed, it could be unfair to expect the prosecution to present all

the evidence needed to secure the conviction of the accused uponthe filing of the information against the latter. The reason is foundin the nature and the objective of a preliminary investigation. Here,the public prosecutors do not decide whether there is evidencebeyond reasonable doubt of the guilt of the person charged; theymerely determine "whether there is sufficient ground to engender awell-founded belief that a crime . . . has been committed and thatthe respondent is probably guilty thereof, and should be held fortrial." 15 Evidentiary matters must be presented and heard duringthe trial. 16 Therefore, if the information is valid on its face, andthere is no showing of manifest error, grave abuse of discretion andprejudice on the part of the public prosecutor , the trial court

should respect such determination.

Inapplicabilty of Allado

and Salonga

The Court of Appeals anchored its ruling on the pronouncementmade inAllado v. Diokno:" . . . [I]f, upon the filing of the informationin court, the trial judge, after reviewing the information and thedocuments attached thereto, must either call for the complainantand the witnesses themselves or simply dismiss the case. There isno reason to hold the accused for trial and further expose him to anopen and public accusation of the crime when no probable cause

exists."17

In Allado, Petitioners Diosdado Jose Allado and Roberto I. Mendoza,practicing lawyers, were accused by the Presidential Anti-CrimeCommission (PACC) of kidnapping with murder and ordered byJudge Roberto C. Diokno to be arrested without bail. The petitionersquestioned the issuance of the warrants for their arrest contendingthat the respondent judge acted with grave abuse of discretion andin excess of his jurisdiction in holding that there was probablecause against them. They contended that the trial court reliedmerely on the resolution of the investigating panel and itscertification that probable cause existed, without personallydetermining the admissibility and sufficiency of the evidence forsuch finding and without stating the basis thereof. They maintained

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that the records of the preliminary investigation, which was thesole basis of the judge's ruling, failed to establish probable causeagainst them that would justify the issuance of warrants for theirarrest.

The Court declared that Judge Diokno has indeed committed graveabuse of discretion in issuing the arrest warrants. Contrary to theconstitutional mandate and established jurisprudence, he merelyrelied on the certification of the prosecutors as to the existence of

the probable cause, instead of personally examining the evidence,the complainant and his witness." For otherwise," the Court said"he would have found out that the evidence thus far presented wasutterly insufficient to warrant the arrest of the petitioners" 18

In categorically stating that the evidence so far presented did notmeet the standard of probable cause and subsequently grantingthe petition, the Court noted the following circumstances: first,the corpus delicti was not established, and there was serious doubtas to the alleged victim's death: second, the extra judicialstatement of the principal witness, who had priorly confessed hisparticipation in the crime, was full of material inconsistencies; and

third, the PACC operatives who investigated the case neverimplicated the petitioners.

Citing Salonga v. Cruz-Pao, the Court of Appeals pointed out thatwhen there was noprima facie case against a person sought to becharged with a crime, "the judge or fiscal, therefore, should not goon with the prosecution in the hope that some credible evidencemight later turn out during trial, for this would be flagrant violationof a basic right which the courts are created to uphold." 19

In the aforecited case, Petitioner Jovito R. Salonga sought to bar thefiling of an Information for violation of the revised Anti-SubversionAct, which Judge Ernani Cruz-Pano had ordered to be filed against

him. In sustaining the petitioner, the Court held that the evidenceupon which the Information was based was not sufficient to chargehim for a violation of the Revised Subversion Act.

In all, the Court decreed in both cases that there was no basis inlaw and in fact for the judicial and executive determination atprobable cause. The Court also held that the government, whilevested with the right and the duty to protect itself and its peopleagainst transgressors of the law, must perform the same in amanner that would not infringe the perceived violators' rights asguaranteed by the Constitution.

However, the present case is not on all fours

withAllado and Salonga. First, Elsa Gumban, the principaleyewitness to the killing of Rosalinda Dy, was not a participation or

conspirator in the commission of the said crime. InAllado andSalonga, however, the main witnesses were the confessedperpetrators of the crimes, whose testimonies the court deemed'tainted'. 20Second, in the case at bar, the private respondent wasaccorded due process, and no precipitate haste or bias during theinvestigation of the case can be imputed to the public prosecutor.On the other hand, the Court noted in Allado the "undue haste inthe filing of the Information and in the inordinate interest of the

government" in pursuing the case;

21

and in Salonga, " . . . thefailure of the prosecution to show that the petitioner was probablyguilty of conspiring to commit the crime, the initial disregard ofpetitioner's constitutioner rights [and] the massive and damagingpublicity against him." 22 In other words, while the respective setsof evidence before the prosecutors in theAllado and Salonga were"utterly insufficient" to support a finding of probable cause, thesame cannot be said of the present case.

We stress thatAllado and Salonga constitute exceptions to thegeneral rule and may be invoked only if similar circumstances areclearly shown to exist. But as the foregoing comparisons show,such similarities are absent in the instant case. Hence, the rulings

in the two aforementioned cases cannot apply to it.

Motion Without Requisite Notice

One more thing, Petitioners aver that Private Respondent Cerbo didnot give them a copy of the Motion to Quash the Warrant of Arrest,which had been issued against him, or a notice of the scheduledhearing. Thus, they contend, Judge Valles should not haveentertained such motion.

It is settled that every written motion in a trial court must be set forhearing by the applicant and served with the notice of hearingthereof, in such a manner as to ensure its receipt by the other

party. The provisions on this matter in Section 4 and 5, Rule 15 ofthe Rules of the Court, 23are categorical and mandatorycharacter. 24 Under Section 6 of the said rule, no motion shall beacted upon by the court without proof of service thereof. Therationale for this rule is simple: unless the movants set the timeand the place of hearing, the court will be unable to determinewhether the adverse parties agree or object to the motions, sincethe rules themselves do not fix any period within which they mayfile their replies or oppositions. 25

The motion to quash the warrant of arrest in the present casebeingpro forma, inasmuch as the requisite copy and notice werenot duly served upon the adverse party, the trial court had noauthority to act on it.

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Epilogue

In granting this petition, we are not prejudging the criminal case orthe guilt or innocence of Private Respondent Billy Cerbo. We simplysaying that, as a general rule, if the information is valid on its faceand there is no showing of manifest error, grave abuse of discretionor prejudice on the part of the public prosecutor, courts should notdismiss it for 'want of evidence,' because evidentiary mattersshould be presented and heard during the trial. The functions and

duties of both the trial court and the public prosecutor in "theproper scheme of things" in our criminal justice system should beclearly understood.

The rights of the people from what could sometimes be an''oppressive" exercise of government prosecutorial powers do needto be protected when circumstances so require. But just as werecognize this need, we also acknowledge that the State mustlikewise be accorded due process. Thus, when there is no showingof nefarious irregularity or manifest error in the performance of apublic prosecutor's duties, courts ought to refrain from interferingwith such lawfully and judicially mandated duties.

In any case, if there was palpable error or grave abuse of discretionin the public prosecutor's finding of probable cause, the accusedcan appeal such finding to the justice secretary 26 and move for thedeferment or suspension of the proceeding until such appeal isresolved.

WHEREFORE, the petition is GRANTED. The assailed Decision of theCourt of Appeals is hereby REVERSED and SET ASIDE. The case isREMANDED to the Regional Trial Court of Nabunturan, Davao,which is ordered to reinstate the amended information againstPrivate Respondent Billy Cerbo and to proceed with judicious speedin hearing the case. No. costs.1wphi1.nt

SO ORDERED.

Romero, Vitug, Purisima, and Gonzaga-Reyes, JJ., concur.

G.R. No. 101837 February 11, 1992

ROLITO GO y TAMBUNTING, petitioner, vs.THE COURT OF APPEALS, THE HON. BENJAMIN V. PELAYO,Presiding Judge, Branch 168, Regional Trial Court, NCJRPasig, M.M., and PEOPLE OF THE PHILIPPINES, respondents.

FELICIANO,J.:

According to the findings of the San Juan Police in theirInvestigation Report, 1 on 2 July 1991, Eldon Maguan was drivinghis car along Wilson St., San Juan, Metro Manila, heading towards P.Guevarra St. Petitioner entered Wilson St., where it is a one-waystreet and started travelling in the opposite or "wrong" direction. Atthe corner of Wilson and J. Abad Santos Sts., petitioner's andMaguan's cars nearly bumped each other. Petitioner alighted fromhis car, walked over and shot Maguan inside his car. Petitioner thenboarded his car and left the scene. A security guard at a nearby

restaurant was able to take down petitioner's car plate number.The police arrived shortly thereafter at the scene of the shooting

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and there retrieved an empty shell and one round of liveammunition for a 9 mm caliber pistol. Verification at the LandTransportation Office showed that the car was registered to oneElsa Ang Go.

The following day, the police returned to the scene of the shootingto find out where the suspect had come from; they were informedthat petitioner had dined at Cravings Bake Shop shortly before theshooting. The police obtained a facsimile or impression of the credit

card used by petitioner from the cashier of the bake shop. Thesecurity guard of the bake shop was shown a picture of petitionerand he positively identified him as the same person who had shotMaguan. Having established that the assailant was probably thepetitioner, the police launched a manhunt for petitioner.

On 8 July 1991, petitioner presented himself before the San JuanPolice Station to verify news reports that he was being hunted bythe police; he was accompanied by two (2) lawyers. The policeforthwith detained him. An eyewitness to the shooting, who was atthe police station at that time, positively identified petitioner as thegunman. That same day, the police promptly filed a complaint for

frustrated homicide

2

against petitioner with the Office of theProvincial Prosecutor of Rizal. First Assistant Provincial ProsecutorDennis Villa Ignacio ("Prosecutor") informed petitioner, in thepresence of his lawyers, that he could avail himself of his right topreliminary investigation but that he must first sign a waiver of theprovisions of Article 125 of the Revised Penal Code. Petitionerrefused to execute any such waiver.

On 9 July 1991, while the complaint was still with the Prosecutor,and before an information could be filed in court, the victim, EldonMaguan, died of his gunshot wound(s).Accordingly, on 11 July 1991,the Prosecutor, instead of filing an information for frustratedhomicide, filed an information for murder 3 before the Regional Trial

Court. No bail was recommended. At the bottom of the information,the Prosecutor certified that no preliminary investigation had beenconducted because the accused did not execute and sign a waiverof the provisions of Article 125 of the Revised Penal Code.

In the afternoon of the same day, 11 July 1991, counsel forpetitioner filed with the Prosecutor an omnibus motion forimmediate release and proper preliminary investigation, 4allegingthat the warrantless arrest of petitioner was unlawful and that nopreliminary investigation had been conducted before theinformation was filed. Petitioner also prayed that he be released onrecognizance or on bail. Provincial Prosecutor Mauro Castro, acting

on the omnibus motion, wrote on the last page of the motion itself

that he interposed no objection to petitioner being grantedprovisional liberty on a cash bond of P100,000.00.

On 12 July 1991, petitioner filed an urgent ex-parte motion forspecial raffle 5 in order to expedite action on the Prosecutor's bailrecommendation. The case was raffled to the sala of respondentJudge, who, on the same date, approved the cash bond 6 posted bypetitioner and ordered his release. 7 Petitioner was in fact releasedthat same day.

On 16 July 1991, the Prosecutor filed with the Regional Trial Court amotion for leave to conduct preliminary investigation 8 and prayedthat in the meantime all proceedings in the court be suspended. Hestated that petitioner had filed before the Office of the ProvincialProsecutor of Rizal an omnibus motion for immediate release andpreliminary investigation, which motion had been granted byProvincial Prosecutor Mauro Castro, who also agreed to recommendcash bail of P100,000.00. The Prosecutor attached to the motion forleave a copy of petitioner's omnibus motion of 11 July 1991.

Also on 16 July 1991, the trial court issued an Order 9 grantingleave to conduct preliminary investigation and cancelling the

arraignment set for 15 August 1991 until after the prosecution shallhave concluded its preliminary investigation.

On 17 July 1991, however, respondent Judge motu proprio issuedan Order, 10embodying the following: (1) the 12 July 1991 Orderwhich granted bail was recalled; petitioner was given 48 hours fromreceipt of the Order to surrender himself; (2) the 16 July 1991 Orderwhich granted leave to the prosecutor to conduct preliminaryinvestigation was recalled and cancelled; (3) petitioner's omnibusmotion for immediate release and preliminary investigation dated11 July 1991 was treated as a petition for bail and set for hearingon 23 July 1991.

On 19 July 1991, petitioner filed a petition for certiorari, prohibitionand mandamus before the Supreme Court assailing the 17 July1991 Order, contending that the information was null and voidbecause no preliminary investigation had been previouslyconducted, in violation of his right to due process. Petitioner alsomoved for suspension of all proceedings in the case pendingresolution by the Supreme Court of his petition; this motion was,however, denied by respondent Judge.

On 23 July 1991, petitioner surrendered to the police.

By a Resolution dated 24 July 1991, this Court remanded thepetition for certiorari, prohibition and mandamus to the Court ofAppeals.

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On 16 August 1991, respondent Judge issued an order in opencourt setting the arraignment of petitioner on 23 August 1991.

On 19 August 1991, petitioner filed with the Court of Appeals amotion to restrain his arraignment.

On 23 August 1991, respondent judge issued a Commitment Orderdirecting the Provincial Warden of Rizal to admit petitioner into hiscustody at the Rizal Provincial Jail. On the same date, petitioner

was arraigned. In view, however, of his refusal to enter a plea, thetrial court entered for him a plea of not guilty. The Trial court thenset the criminal case for continuous hearings on 19, 24 and 26September; on 2, 3, 11 and 17 October; and on 7, 8, 14, 15, 21 and22 November 1991. 11

On 27 August 1991, petitioner filed a petition for habeascorpus12 in the Court of Appeals. He alleged that in view of publicrespondent's failure to join issues in the petitionfor certiorari earlier filed by him, after the lapse of more than amonth, thus prolonging his detention, he was entitled to bereleased on habeas corpus.

On 30 August 1991, the Court of Appeals issued the writ ofhabeascorpus.13 The petition for certiorari, prohibition and mandamus, onthe one hand, and the petition for habeas corpus, upon the other,were subsequently consolidated in the Court of Appeals.

The Court of Appeals, on 2 September 1991, issued a resolutiondenying petitioner's motion to restrain his arraignment on theground that that motion had become moot and academic.

On 19 September 1991, trial of the criminal case commenced andthe prosecution presented its first witness.

On 23 September 1991, the Court of Appeals rendered aconsolidated decision 14 dismissing the two (2) petitions, on the

following grounds:

a. Petitioner's warrantless arrest was valid because theoffense for which he was arrested and charged had been"freshly committed." His identity had been establishedthrough investigation. At the time he showed up at thepolice station, there had been an existing manhunt for him.During the confrontation at the San Juan Police Station, onewitness positively identified petitioner as the culprit.

b. Petitioner's act of posting bail constituted waiver of anyirregularity attending his arrest. He waived his right topreliminary investigation by not invoking it properly andseasonably under the Rules.

c. The trial court did not abuse its discretion when it issuedthe 17 July 1991 Order because the trial court had theinherent power to amend and control its processes so as tomake them conformable to law and justice.

d. Since there was a valid information for murder againstpetitioner and a valid commitment order (issued by the trialjudge after petitioner surrendered to the authoritieswhereby petitioner was given to the custody of the

Provincial Warden), the petition for habeascorpus could notbe granted.

On 3 October 1991, the prosecution presented three (3) morewitnesses at the trial. Counsel for petitioner also filed a "Withdrawalof Appearance" 15 with the trial court, with petitioner's conformity.

On 4 October 1991, the present Petition for Reviewon Certiorari was filed. On 14 October 1991, the Court issued aResolution directing respondent Judge to hold in abeyance thehearing of the criminal case below until further orders from thisCourt.

In this Petition for Review, two (2) principal issues need to beaddressed: first, whether or not a lawful warrantless arrest hadbeen effected by the San Juan Police in respect of petitioner Go;and second, whether petitioner had effectively waived his right topreliminary investigation. We consider these issues seriatim.

In respect of the first issue, the Solicitor General argues that underthe facts of the case, petitioner had been validly arrested withoutwarrant. Since petitioner's identity as the gunman who had shotEldon Maguan on 2 July 1991 had been sufficiently established bypolice work, petitioner was validly arrested six (6) days later at theSan Juan Police Station. The Solicitor General invokes Nazarenov. Station Commander, etc., et al., 16 one of the seven (7) cases

consolidated with In the Matter of the Petition for Habeas Corpus ofRoberto Umil, etc., v. Ramos, et al. 17 where a majority of the Courtupheld a warrantees arrest as valid although effected fourteen (14)days after the killing in connection with which Nazareno had beenarrested. Accordingly, in the view of the Solicitor General, theprovisions of Section 7, Rule 112 of the Rules of Court wereapplicable and because petitioner had declined to waive theprovisions of Article 125 of the Revised Penal Code, the Prosecutorwas legally justified in filing the information for murder evenwithout preliminary investigation.

On the other hand, petitioner argues that he was not lawfully

arrested without warrant because he went to the police station six(6) days after the shooting which he had allegedly perpetrated.

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Thus, petitioner argues, the crime had not been "just committed" atthe time that he was arrested. Moreover, none of the police officerswho arrested him had been an eyewitness to the shooting ofMaguan and accordingly none had the "personal knowledge"required for the lawfulness of a warrantees arrest. Since there hadbeen no lawful warrantless arrest. Section 7, Rule 112 of the Rulesof Court which establishes the only exception to the right topreliminary investigation, could not apply in respect of petitioner.

The reliance of both petitioner and the Solicitor General upon Umilv. Ramos is, in the circumstances of this case, misplaced. In Umilv. Ramos, by an eight-to-six vote, the Court sustained the legalityof the warrantless arrests of petitioners made from one (1) tofourteen days after the actual commission of the offenses, upon theground that such offenses constituted "continuing crimes." Thoseoffenses were subversion, membership in an outlawed organizationlike the New People's Army, etc. In the instant case, the offense forwhich petitioner was arrested was murder, an offense which wasobviously commenced and completed at one definite location intime and space. No one had pretended that the fatal shooting ofMaguan was a "continuing crime."

Secondly, we do not believe that the warrantees "arrest" ordetention of petitioner in the instant case falls within the terms ofSection 5 of Rule 113 of the 1985 Rules on Criminal Procedurewhich provides as follows:

Sec. 5Arrest without warrant; when lawful. A peace officer ora private person may, without warrant, arrest a person:

(a) When, in his presence, the person to be arrested hascommitted, is actually committing, or is attempting to commitan offense;

(b) When an offense has in fact just been committed, and he

has personal knowledge of facts indicating that the person to bearrested has committed it; and

(c) When the person to be arrested is a prisoner who hasescaped from a penal establishment or place where he isserving final judgment or temporarily confined while his case ispending, or has escaped while being transferred from oneconfinement to another.

In cases falling under paragraphs (a) and (b) hereof, the personarrested without a warrant shall be forthwith delivered to thenearest police station or jail, and he shall be proceed against inaccordance with Rule 112, Section 7.

Petitioner's "arrest" took place six (6) days after the shooting ofMaguan. The "arresting" officers obviously were not present, withinthe meaning of Section 5(a), at the time petitioner had allegedlyshot Maguan. Neither could the "arrest" effected six (6) days afterthe shooting be reasonably regarded as effected "when [theshooting had] in fact just been committed" within the meaning ofSection 5(b). Moreover, none of the "arresting" officers had any"personal knowledge" of facts indicating that petitioner was thegunman who had shot Maguan. The information upon which thepolice acted had been derived from statements made by allegedeyewitnesses to the shooting one stated that petitioner was thegunman; another was able to take down the alleged gunman's car'splate number which turned out to be registered in petitioner'swife's name. That information did not, however, constitute"personal knowledge." 18

It is thus clear to the Court that there was no lawful warrantlessarrest of petitioner within the meaning of Section 5 of Rule 113. It isclear too that Section 7 of Rule 112, which provides:

Sec. 7 When accused lawfully arrested without warrant.

When a person is lawfully arrested without a warrant for anoffense cognizable by the Regional Trial Courtthe complaint orinformation may be filed by the offended party, peace officer orfiscal without a preliminary investigation having been firstconducted, on the basis of the affidavit of the offended party orarresting office or person

However, before the filing of such complaint or information, theperson arrested may ask for a preliminary investigation by aproper officerin accordance with this Rule, but he must sign awaiver of the provisions of Article 125 of the Revised PenalCode, as amended, with the assistance of a lawyer and in caseof non-availability of a lawyer, a responsible person of his

choice. Notwithstanding such waiver, he may apply for bail asprovided in the corresponding rule and the investigation mustbe terminated within fifteen (15) days from its inception.

If the case has been filed in court without a preliminaryinvestigation having been first conducted, the accusedmaywithin five (5) days from the time he learns of the filing ofthe information, ask for a preliminary investigation with thesame right to adduce evidence in his favor in the mannerprescribed in this Rule. (Emphasis supplied)

is also not applicable. Indeed, petitioner was not arrested at all.When he walked into San Juan Police Station, accompanied by two

(2) lawyers, he in fact placed himself at the disposal of the police

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authorities. He did not state that he was "surrendering" himself, inall probability to avoid the implication he was admitting that he hadslain Eldon Maguan or that he was otherwise guilty of a crime.When the police filed a complaint for frustrated homicide with theProsecutor, the latter should have immediately scheduled apreliminary investigation to determine whether there was probablecause for charging petitioner in court for the killing of EldonMaguan. Instead, as noted earlier, the Prosecutor proceed underthe erroneous supposition that Section 7 of Rule 112 was applicableand required petitioner to waive the provisions of Article 125 of theRevised Penal Code as a condition for carrying out a preliminaryinvestigation. This was substantive error, for petitioner was entitledto a preliminary investigation and that right should have beenaccorded him without any conditions. Moreover, since petitionerhad not been arrested, with or without a warrant, he was alsoentitled to be released forthwith subject only to his appearing atthe preliminary investigation.

Turning to the second issue of whether or not petitioner had waivedhis right to preliminary investigation, we note that petitioner hadfrom the very beginning demanded that a preliminary investigation

be conducted. As earlier pointed out, on the same day that theinformation for murder was filed with the Regional Trial Court,petitioner filed with the Prosecutor an omnibus motion forimmediate release and preliminary investigation. The SolicitorGeneral contends that that omnibus motion should have been filedwith the trial court and not with the Prosecutor, and that thepetitioner should accordingly be held to have waived his right topreliminary investigation. We do not believe that waiver ofpetitioner's statutory right to preliminary investigation may bepredicated on such a slim basis. The preliminary investigation wasto be conducted by the Prosecutor, not by the Regional Trial Court.It is true that at the time of filing of petitioner's omnibus motion,

the information for murder had already been filed with the RegionalTrial Court: it is not clear from the record whether petitioner wasaware of this fact at the time his omnibus motion was actually filedwith the Prosecutor. In Crespo v. Mogul, 19 this Court held:

The preliminary investigation conducted by the fiscal for thepurpose of determining whether a prima facie case exists towarranting the prosecution of the accused is terminated uponthe filing of the information in the proper court. In turn, asabove stated, the filing of said information sets in motion thecriminal action against the accused in Court. Should the fiscalfind it proper to conduct a reinvestigation of the case, at such

stage, the permission of the Court must be secured. After suchreinvestigation the finding and recommendations of the fiscal

should be submitted to the Court for appropriate action.While itis true that the fiscal has the quasi-judicial discretion todetermine whether or not a criminal case should be filed incourt or not, once the case had already been brought to Courtwhatever disposition the fiscal may feel should be proper in thecase thereafter should be addressed for the consideration of theCourt. The only qualification is that the action of the Court mustnot impair the substantial rights of the accused., or the right ofthe People to due process of law.

xxx xxx xxx

The rule therefore in this jurisdiction is that once a complaint orinformation is filed in Court any disposition of the case [such] asits dismissal or the conviction or acquittal of the accused restsin the sound discretion of the Court.Although the fiscal retainsthe direction and control of the prosecution of criminal caseseven while the case is already in Court he cannot impose hisopinion on the trial court. The Court is the best and sole judgeon what to do with the case before it. . . . 20(Citations omitted;emphasis supplied)

Nonetheless, since petitioner in his omnibus motion was askingfor preliminary investigation and not for a re-investigation(Crespo v. Mogul involved a re-investigation), and since theProsecutor himself did file with the trial court, on the 5th dayafter filing the information for murder, a motion for leave toconduct preliminary investigation (attaching to his motion a copyof petitioner's omnibus motion), we conclude that petitioner'somnibus motion was in effect filed with the trial court. What wascrystal clear was that petitioner did ask for a preliminaryinvestigation on the very day that the information was filedwithout such preliminary investigation, and that the trial courtwas five (5) days later apprised of the desire of the petitioner for

such preliminary investigation. Finally, the trial court did infactgrant the Prosecutor's prayer for leave to conductpreliminary investigation. Thus, even on the (mistaken)supposition apparently made by the Prosecutor that Section 7 ofRule 112 of the Revised Court was applicable, the 5-dayreglementary period in Section 7, Rule 112 must be held to havebeen substantially complied with.

We believe and so hold that petitioner did not waive his right to apreliminary investigation. While that right is statutory rather thanconstitutional in its fundament, since it has in fact been establishedby statute, it is a component part of due process in criminal

justice.21

The right to have a preliminary investigation conductedbefore being bound over to trial for a criminal offense and hence

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formally at risk of incarceration or some other penalty, is notamere formal or technical right; it is a substantive right. The accusedin a criminal trial is inevitably exposed to prolonged anxiety,aggravation, humiliation, not to speak of expense; the right to anopportunity to avoid a process painful to any one save, perhaps, tohardened criminals, is a valuable right. To deny petitioner's claimto a preliminary investigation would be to deprive him the fullmeasure of his right to due process.

The question may be raised whether petitioner still retains his rightto a preliminary investigation in the instant case considering thathe was already arraigned on 23 August 1991. The rule is that theright to preliminary investigation is waived when the accused failsto invoke it before or at the time of entering a plea atarraignment.22 In the instant case, petitioner Go had vigorouslyinsisted on his right to preliminary investigation before hisarraignment.At the time of his arraignment, petitioner was alreadybefore the Court of Appeals on certiorari, prohibitionand mandamus precisely asking for a preliminary investigationbefore being forced to stand trial.

Again, in the circumstances of this case, we do not believe that byposting bail petitioner had waived his right to preliminaryinvestigation. In People v. Selfaison, 23 we did hold that appellantsthere had waived their right to preliminary investigation becauseimmediately after their arrest, they filed bail and proceeded to trial"without previously claiming that they did not have the benefit of apreliminary investigation."24 In the instant case, petitioner Goasked for release on recognizance or on bail and for preliminaryinvestigation in one omnibus motion. He had thus claimed his rightto preliminary investigation before respondent Judge approved thecash bond posted by petitioner and ordered his release on 12 July1991. Accordingly, we cannot reasonably imply waiver of

preliminary investigation on the part of petitioner. In fact, when theProsecutor filed a motion in court asking for leave to conductpreliminary investigation, he clearly if impliedly recognized thatpetitioner's claim to preliminary investigation was a legitimate one.

We would clarify, however, that contrary to petitioner's contentionthe failure to accord preliminary investigation, while constituting adenial of the appropriate and full measure of the statutory processof criminal justice, did not impair the validity of the information formurder nor affect the jurisdiction of the trial court. 25

It must also be recalled that the Prosecutor had actually agreedthat petitioner was entitled to bail. This was equivalent to an

acknowledgment on the part of the Prosecutor that the evidence ofguilt then in his hands was not strong. Accordingly, we consider

that the 17 July 1991 order of respondent Judge recalling his ownorder granting bail and requiring petitioner to surrender himselfwithin forty-eight (48) hours from notice, was plainly arbitraryconsidering that no evidence at all and certainlyno new or additional evidence had been submitted to respondentJudge that could have justified the recall of his order issued just five(5) days before. It follows that petitioner was entitled to bereleased on bail as a matter of right.

The final question which the Court must face is this: how does thefact that, in the instant case, trial on the merits has alreadycommenced, the Prosecutor having already presented four (4)witnesses, impact upon, firstly, petitioner's right to a preliminaryinvestigation and, secondly, petitioner's right to be released onbail? Does he continue to be entitled to have a preliminaryinvestigation conducted in respect of the charge against him? Doespetitioner remain entitled to be released on bail?

Turning first to the matter of preliminary investigation, we considerthat petitioner remains entitled to a preliminary investigationalthough trial on the merits has already began. Trial on the merits

should be suspended or held in abeyance and a preliminaryinvestigation forthwith accorded to petitioner. 26 It is true that theProsecutor might, in view of the evidence that he may at this timehave on hand, conclude that probable cause exists; upon the otherhand, the Prosecutor conceivably could reach the conclusion thatthe evidence on hand does not warrant a finding of probable cause.In any event, the constitutional point is that petitionerwas notaccorded what he was entitled to by way of procedural dueprocess. 27 Petitioner was forced to undergo arraignment andliterally pushed to trial without preliminary investigation, withextraordinary haste, to the applause from the audience that filledthe courtroom. If he submitted to arraignment at trial, petitioner

did so "kicking and screaming," in a manner of speaking . Duringthe proceedings held before the trial court on 23 August 1991, thedate set for arraignment of petitioner, and just before arraignment,counsel made very clear petitioner's vigorous protest and objectionto the arraignment precisely because of the denial of preliminaryinvestigation. 28 So energetic and determined were petitioner'scounsel's protests and objections that an obviously angered courtand prosecutor dared him to withdraw or walkout, promising toreplace him with counsel de oficio. During the trial, before theprosecution called its first witness, petitioner through counsel onceagain reiterated his objection to going to trial without preliminaryinvestigation: petitioner's counsel made of record his "continuing

objection."29

Petitioner had promptly gone to the appellate courton certiorari and prohibition to challenge the lawfulness of the

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procedure he was being forced to undergo and the lawfulness of hisdetention. 30 If he did not walk out on the trial, and if he cross-examined the prosecution's witnesses, it was because he wasextremely loath to be represented by counsel de oficio selected bythe trial judge, and to run the risk of being held to have waived alsohis right to use what is frequently the only test of truth in thejudicial process.

In respect of the matter of bail, we similarly believe and so hold

that petitioner remains entitled to be released on bail as a matterof right. Should the evidence already of record concerningpetitioner's guilt be, in the reasonable belief of the Prosecutor,strong, the Prosecutor may move in the trial court for cancellationof petitioner's bail. It would then be up to the trial court, after acareful and objective assessment of the evidence on record, togrant or deny the motion for cancellation of bail.

To reach any other conclusions here, that is, to hold thatpetitioner's rights to a preliminary investigation and to bail wereeffectively obliterated by evidence subsequently admitted into therecord would be to legitimize the deprivation of due process and to

permit the Government to benefit from its own wrong or culpableomission and effectively to dilute important rights of accusedpersons well-nigh to the vanishing point. It may be that to requirethe State to accord petitioner his rights to a preliminaryinvestigation and to bail at this point, could turn out ultimately tobe largely a ceremonial exercise. But the Court is not compelled tospeculate. And, in any case, it would not be idle ceremony; rather,it would be a celebration by the State of the rights and liberties ofits own people and a re-affirmation of its obligation anddetermination to respect those rights and liberties.

ACCORDINGLY, the Court resolved to GRANT the Petition for Reviewon Certiorari. The Order of the trial court dated 17 July 1991 is

hereby SET ASIDE and NULLIFIED, and the Decision of the Court ofAppeals dated 23 September 1991 hereby REVERSED.

The Office of the Provincial Prosecutor is hereby ORDERED toconduct forthwith a preliminary investigation of the charge ofmurder against petitioner Go, and to complete such preliminaryinvestigation within a period of fifteen (15) days fromcommencement thereof. The trial on the merits of the criminal casein the Regional Trial Court shall be SUSPENDED to await theconclusion of the preliminary investigation. Meantime, petitioner ishereby ORDERED released forthwith upon posting of a cash bailbond of One Hundred Thousand Pesos (P100,000.00). This release

shall be without prejudice to any lawful order that the trial courtmay issue, should the Office of the Provincial Prosecutor move for

cancellation of bail at the conclusion of the preliminaryinvestigation.

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G.R. No. 122452 January 29, 2001

TAM WING TAK, petitioner,vs.HON. RAMON P. MAKASIAR (in his Capacity as PresidingJudge of the Regional Trial Court of Manila, Branch 35) andZENON DE GUIA (in his capacity as Chief StateProsecutor), respondents.

QUISUMBING,J.:

This is a petition for review on certiorari of the decision of theRegional Trial Court of Manila, Branch 35, dated September 14,1995, which dismissed herein petitioner's special civil action formandamus and sustained the Letter-Order of respondent ChiefState Prosecutor. The latter dismissed petitioner's appeal from theresolution of the City Prosecutor of Quezon City, which, in turn,dismissed petitioner's complaint against Vic Ang Siong for violationof the Bouncing Checks Law or B.P. Blg. 22.

The factual background of this case is as follows:

On November 11, 1992, petitioner, in his capacity as director of

Concord-World Properties, Inc., (Concord for brevity), a domesticcorporation, filed an affidavit-complaint with the Quezon CityProsecutor's Office, charging Vic Ang Siong with violation of B.P.Blg. 22. Docketed by the Prosecutor as I.S. No. 93-15886, thecomplaint alleged that a check for the amount of P83,550,000.00,issued by Vic Ang Siong in favor of Concord, was dishonored whenpresented for encashment.

Vic Ang Siong sought the dismissal of the case on two grounds:First, that petitioner had no authority to file the case on behalf ofConcord, the payee of the dishonored check, since the firm's boardof directors had not empowered him to act on its behalf. Second,

he and Concord had already agreed to amicably settle the issueafter he made a partial payment of P19,000,000.00 on thedishonored check.1wphi1.nt

On March 23, 1994, the City Prosecutor dismissed I.S. No. 93-15886on the following grounds: (1) that petitioner lacked the requisiteauthority to initiate the criminal complaint for and on Concord'sbehalf; and (2) that Concord and Vic Ang Siong had already agreedupon the payment of the latter's balance on the dishonored check.

A copy of the City Prosecutor's resolution was sent by registeredmail to petitioner in the address he indicated in his complaint-affidavit. Notwithstanding that petitioner was represented by

counsel, the latter was not furnished a copy of the resolution.

On June 27, 1994, petitioner's counsel was able to secure a copy ofthe resolution dismissing I.S. No. 93-15886. Counting his 15-dayappeal period from said date, petitioner moved for reconsiderationon July 7, 1994.

On October 21, 1994, the City Prosecutor denied petitioner'smotion for reconsideration. Petitioner's counsel received a copy ofthe denial order on November 3, 1994.

On November 7, 1994, petitioner's lawyer filed a motion to extendthe period to appeal by an additional 15 days counted fromNovember 3, 1994 with the Chief State Prosecutor. He manifestedthat it would take time to communicate with petitioner who is aHong Kong resident and enable the latter to verify the appeal asprocedurally required.

On November 8, 1994, petitioner appealed the dismissal of hiscomplaint by the City Prosecutor to the Chief State Prosecutor. Theappeal was signed by petitioner's attorney only and was notverified by petitioner until November 23, 1994.

On December 8, 1994, the Chief State Prosecutor dismissed the

appeal for having been filed out of time. Petitioner's lawyerreceived a copy of the letter-resolution dismissing the appeal onJanuary 20, 1995.

On January 30, 1995, petitioner moved for reconsideration.

On March 9, 1995, respondent Chief State Prosecutor denied themotion for reconsideration.

Petitioner then filed Civil Case No. 95-74394 for mandamus withthe Regional Trial Court of Quezon City to compel the Chief StateProsecutor to file or cause the filing of an information charging VicAng Siong with violation of B.P. Blg. 22.

On September 14, 1995, the trial court disposed of the action asfollows:

WHEREFORE, for utter lack of merit, the petition formandamus of petitioner is DENIED and DISMISSED.

SO ORDERED.1

Petitioner moved for reconsideration, but the trial court denied thismotion in its order dated October 24, 1995.

Hence, the instant petition.

Before this Court, petitioner claims respondent judge committedgrave errors of law in sustaining respondent Chief State Prosecutorwhose action flagrantly contravenes: (1) the established rule on

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service of pleadings and orders upon parties represented bycounsel; (b) the basic principle that except in private crimes, anycompetent person may initiate a criminal case; and (3) the B.P. Blg.22 requirement that arrangement for full payment of a bouncedcheck must be made by the drawer with the drawee within five (5)banking days from notification of the check's dishonor.2

We find pertinent for our resolution the following issues:

(1) Was there valid service of the City Prosecutor'sresolution upon petitioner?

(2) Will mandamus lie to compel the City Prosecutor to filethe necessary information in court?

In upholding respondent Chief State Prosecutor, the court aquo held:

It is generally accepted principle in the service of orders,resolutions, processes and other papers to serve them onthe party or his counsel, either in his office, if known, or elsein the residence, also if known. As the party or his counsel isnot expected to be present at all times in his office or

residence, service is allowed to be made with a person incharge of the office, or with a person of sufficient discretionto receive the same in the residence.

In the case under consideration, it is not disputed that thecontroverted Resolution dismissing the complaint of thepetitioner against Vic Ang Siong was served on the formerby registered mail and was actually delivered by thepostmaster on April 9, 1994 at said petitioner's givenaddress in the record at No. 5 Kayumanggi Street, WestTriangle, Quezon City. The registered mail was in factreceived by S. Ferraro. The service then was complete and

the period for filing a motion for reconsideration or appealbegan to toll from that date. It expired on April 24, 1994.Considering that his motion for reconsideration was filedonly on July 7, 1994, the same was filed beyond theprescribed period, thereby precluding further appeal to theOffice of the respondent.3

Petitioner, before us, submits that there is no such "generallyaccepted practice" which gives a tribunal the option of servingpleadings, orders, resolutions, and other papers to either theopposing party himself or his counsel. Petitioner insists that thefundamental rule in this jurisdiction is that if a party appears bycounsel, then service can only be validly made upon counsel and

service upon the party himself becomes invalid and without effect.

Petitioner relies upon Rule 13, Section 2 of the Rules of Court 4 andour ruling inJ.M. Javier Logging Corp. v. Mardo, 24 SCRA 776 (1968)to support his stand. In theJ.M. Javiercase, we held:

[W]here a party appears by attorney, notice to the former isnot a notice in law, unless service upon the party himself isordered by the court5

The Solicitor General, for respondents, contends that the applicablerule on service in the present case is Section 2 of the Departmentof Justice (DOJ) Order No. 223,6 which allows service to be madeupon either party or his counsel. Respondents argue that while apreliminary investigation has been considered as partaking of thenature of a judicial proceeding,7 nonetheless, it is not a courtproceeding and hence, falls outside of the ambit of the Rules ofCourt.

We agree with petitioner that there is no "generally acceptedpractice" in the service of orders, resolutions, and processes, whichallows service upon either the litigant or his lawyer. As a rule,notice or service made upon a party who is represented by counselis a nullity,8 However, said rule admits of exceptions, as when the

court or tribunal order service upon the party9 or when thetechnical defect is waived.10

To resolve the issue on validity of service, we must make adetermination as to which is the applicable rule the on service inthe Rules of Court, as petitioner insists or the rule on service in DOJOrder No. 223?

The Rules of Court were promulgated by this Court pursuant toSection 13, Article VII of the 1935 Constitution11(now Section 5 [5],Article VIII of the Constitution)12 to govern "pleadings, practice andprocedure in all courts of the Philippines." The purpose of the Rulesis clear and does not need any interpretation. The Rules were

meant to govern court(stress supplied) procedures and pleadings.As correctly pointed out by the Solicitor General, a preliminaryinvestigation, notwithstanding its judicial nature, is not a courtproceeding. The holding of a preliminary investigation is a functionof the Executive Department and not of the Judiciary.13 Thus, therule on service provided for in the Rules of Court cannot be madeto apply to the service of resolutions by public prosecutors,especially as the agency concerned, in this case, the Department ofJustice, has its own procedural rules governing said service.

A plain reading of Section 2 of DOJ Order No. 223 clearly shows thatin preliminary investigation, service can be made upon the party

himself or through his counsel. It must be assumed that when theJustice Department crafted the said section, it was done with

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knowledge of the pertinent rule in the Rules of Court and ofjurisprudence interpreting it. The DOJ could have just adopted therule on service provided for in the Rules of Court, but did not.Instead, it opted to word Section 2 of DOJ Order No. 223 in such away as to leave no doubt that in preliminary investigations, serviceof resolutions of public prosecutors could be made upon either theparty or his counsel.

Moreover, the Constitution provides that "Rules of procedure of

special courts and quasi-judicial bodies shall remain effectiveunless disapproved by the Supreme Court."14 There is naught in therecords to show that we have disapproved and nullified Section 2 ofDOJ Order No. 223 and since its validity is not an issue in theinstant case, we shall refrain from ruling upon its validity.

We hold that there was valid service upon petitioner pursuant toSection 2 of DOJ Order No. 223.

On the issue of whether mandamus will lie. In general, mandamusmay be resorted to only where one's right is founded clearly in lawand not when it is doubtful.15 The exception is to be found incriminal cases where mandamus is available to compel the

performance by the public prosecutor of an ostensibly discretionaryfunction, where by reason of grave abuse of discretion on his part,he willfully refuses to perform a duty mandated by law.16Thus,mandamus may issue to compel a prosecutor to file an informationwhen he refused to do so in spite of theprima facie evidence ofguilt.17

Petitioner takes the stance that it was grave abuse for discretion onthe part of respondent Chief State Prosecutor to sustain thedismissal of I.S. No. 93-15886 on the grounds that: (1) Vic AngSiong's obligation which gave rise to the bounced check hadalready been extinguished by partial payment and agreement to

amicably settle balance, and (2) petitioner had no standing to filethe criminal complaint since he was neither the payee nor holder ofthe bad check. Petitioner opines that neither ground justifiesdismissal of his complaint.

Petitioner's stand is unavailing. Respondent Chief State Prosecutorin refusing to order the filing of an information for violation of B.P.Blg. 22 against Vic Ang Siong did not act without or in excess ofjurisdiction or with grave abuse of discretion.

First, with respect to the agreement between Concord and VictorAng Siong to amicably settle their difference, we find this resort toan alternative dispute settlement mechanism as not contrary to

law, public policy, or public order. Efforts of parties to solve their

disputes outside of the courts are looked on with favor, in view ofthe clogged dockets of the judiciary.

Second, it is not disputed in the instant case that Concord, adomestic corporation, was the payee of the bum check, notpetitioner. Therefore, it is Concord, as payee of the bounced check,which is the injured party. Since petitioner was neither a payee nora holder of the bad check, he had neither the personality to sue nora cause of action against Vic Ang Siong. Under Section 36 of the

Corporation Code18

, read in relation to Section 23,19

it is clear thatwhere a corporation is an injured party, its power to sue is lodgedwith its board of directors or turstees.20 Note that petitioner failedto show any proof that he was authorized or deputized or grantedspecific powers by Concord's board of director to sue Victor AndSiong for and on behalf of the firm. Clearly, petitioner as a minoritystockholder and member of the board of directors had no suchpower or authority to sue on Concord's behalf. Nor can we upholdhis act as a derivative suit. For a derivative suit to prosper, it isrequired that the minority stockholder suing for and on behalf ofthe corporation must allege in his complaint that he is suing on aderivative cause of action on behalf of the corporation and all other

stockholders similarly situated who may wish to join him in thesuit.21 There is no showing that petitioner has complied with theforegoing requisites. It is obvious that petitioner has not shown anyclear legal right which would warrant the overturning of thedecision of public respondents to dismiss the complaint against VicAng Siong. A public prosecutor, by the nature of his office, is underno compulsion to file a criminal information where no clear legaljustification has been shown, and no sufficient evidence of guiltnorprima facie case has been presented by the petitioner