ALIH v CASTRO 151 SCRA 279CRUZ; June 23, 1987 NATURE Petition for prohibition and m a n d a m u s w i t h preliminary injunction

and restraining order FACTS - On November 25, 1984, a contingent of more thantwo hundred Philippine marines and elements of thehome defense forces raided the compound occupiedby the petitioners at Gov. Alvarez street, ZamboangaCity, in searc h of lo ose f irear ms, ammu nition an dother explosives.- T he militar y o peratio n wa s commo nly kn own andd r e a d e d a s a " z o n a , " w h i c h w a s l i k e t h e fearedpractice of the kempeitai during the J a p a n e s e Occ upa tion of rou nd in g u p the pe op le in a loca lity ,arresting the persons fingered by a hooded informer,and executing them outright (although the last partis not included in the modern refinement).- T h e i n i t i a l reaction of the people inside t h e compound was to resist the invasion with a burst of g u n f i r e . T h e s o l d i e r s r e t u r n e d f i r e a n d a bloodys h o o t - o u t e n s u e d , r e s u l t i n g i n a n u m b e r o f casualties.- 16 male occupants were arrested, later to be finger-printed, paraffin-tested and photographed over theiro b j e c t i o n . T h e military also inventoried a n d confiscate d nine M1 6 rifle s, o ne M1 4 r ifle , nine rif legrenades, and several rounds of ammunition found inthe premises. On December 21, 1984, the petitioners came to thisC o u r t . Their purpose was to recover the a r t i c l e s seized from them, to prevent these from being usedas evide nce against the m, an d to challe nge the irfinger-printing, photographing and paraffin-testing asviolative of their right against self-incrimination.- The petitioners demand the return of the arms anda m m u n i t i o n o n t h e g r o u n d t h a t t h e y w e r e t a k e n w itho ut a searc h warran t as req uired b y the Bill of Rig hts. T his is con firme d by the sa id re por t an d inf a c t admitted by the respondents, "but w i t h avoidance. ISSUE WON the search of petitioners premises was illegal. HELD YES. Ratio Even if were assumed for the s a k e o f argument that they were guilty, they would not haveb e e n a n y l e s s e n t i t l e d t o t h e p r o t e c t i o n o f t h e Constitution, which covers both the innocent and theguilty. Reasoning Ar ticle IV , Sectio n 3, o f the 1 97 3 Co nstitu tio n : T h e righ t of the peo ple to be secure in th eir per sons,hou se s, pa per s, an d effects aga in st unreasonab lesea rche s and se iz ures of whatever na ture and fo ran y pur po se sh all n ot be v iolate d, and no sea rchwarrant or warrant of arrest shall issue except uponpr oba ble cause to be de ter mine d by the judge , orsuch other responsible officer as may be authorizedby law, after examination under oath or affirmationo f t h e c o m p l a i n a n t a n d t h e w i t n e s s e s h e m a y produce, and particularly describing the place to besearched, and the persons or things to be seized. Ar tic le IV, Sectio n 4( 2):

A ny ev ide nce ob ta ine d in violation of th is or the prece ding sectio n sha ll beinadmissible for any purpose in any proceeding.-The respondents, while admitting the absence of therequired such warrant, sought to justify their act ont h e g r o u n d t h a t t h e y w e r e a c t i n g under superiororders. There was also the s u g g e s t i o n t h a t t h e measure was necessary because of the aggravationof the peace an d orde r pro ble m ge nerated b y the assassination of Mayor Cesar Climaco.Su perior o rder s" can no t, of co ur se, co un ter man dthe Con stitut ion . The fac t th at the pe tition er s were su sp ecte d of the Climac o killin g d id no t excu se th econstitutional short-cuts the respondents took.- Za mb oa nga City a t the time in q uestion certa in lyd i d n o t e x c u s e t h e n o n - o b s e r v a n c e o f t h e constitutional guaranty against unreasonables e a r c h e s and seizures. There was no state o f hostilities in the area to justify, assuming it could, ther e p r e s s i o n s c o m m i t t e d t h e r e i n a g a i n s t t h e petitioners.- The reco rd d oes n ot d isclose tha t the petitio ne rswere wan te d crimina ls or f ug itiv es from ju stic e. A tthe time of the "zona," they were merely suspectedof the mayor's slaying and had not in fact even beeni n v e s t i g a t e d f o r i t . A s m e r e suspects, they werepresumed innocent and n o t g u i l t y a s s u m m a r i l y pronounced by the military.- lacking the shield of innocence, the guilty need thearmor of the Constitution, to protect them, not froma deserved sentence, but from arbitrary punishment.E v e r y person is entitled to due process. It is noexaggeration that the basest criminal, r a n g e d against the re st of the pe op le wh o wou ld co nde mnh i m o u t r i g h t , i s s t i l l , u n d e r t h e B i l l o f R i g h t s , a majority of one.- The respondents cannot even plead the urgency of the raid because it was in fact not urgent. They kneww h e r e t h e petitioners were. They had e v e r y o pp ortun ity to ge t a searc h warran t bef ore mak in gthe raid. If they were worried that the weapons insidethe co mp ou nd w ou ld be spirite d away , the y co uldhave surrounded the premises in the meantime, as apreventive measure.Conceding that the search was t r u l y warrantless, might not the search and seizurebe nonetheless considered valid because it wasincidental to a legal arrest? Sure ly no t. If a ll the law enforcement authorities have to do is force theirway into an y ho use an d the n pick up an ything th eys e e t h e r e o n t h e g r o u n d t h a t t h e o c c u p a n t s a r e resisting arrest, then we might as well delete the Billof Rights as a fussy redundancy.If the arrest was made under Rule 1 1 3 , Section 5, of the Rules of Court in connectionw i t h a crime about to be committed, b e i n g committed, or just committed, what was thatcrime? There is no allegation in the record of such a justification. Parenthetically, it may be observed thatunder the Revised Rule 113, Section 5(b), the officermaking the arrest must have personal knowledge of the ground therefor.- I t follows that as the search of the p e t i t i o n e r s ' pre mise s wa s violativ e of the Con stitution , all thef i r e a r m s a n d a m m u n i t i o n t a k e n f r o m t h e r a i d e d compound are inadmissible in evidence in any of theprocee ding s aga in st th e pe tition er s. These articlesare "fruits of the poisonous tree. Dispositive

WHEREFORE, the search of t h e petitioners' premises on November 25, 1 9 8 4 , i s hereb y declared IL LEG AL and a ll the ar tic le s se izeda s a r e s u l t t h e r e o f a r e i n a d m i s s i b l e i n e v i d e n c e against the petitioners in any proceedings. However,t h e s a i d a r t i c l e s s h a l l r e m a i n i n c u s t o d i a l e g i s pending the outcome of the criminal cases that havebeen or may later be filed against the petitioners POSADAS v CA (PEOPLE) 188 SCRA 288GANCAYCO; August 2, 1990 NATURE Petition for review FACTSPa t. Ur sic io Unga b and Pa t. U mbra U mpar , bothmember s of the Integra te d Natio nal Police (INP ) of t h e D a v a o M e t r o d i s c o m a s s i g n e d w i t h t h e Intelligence Task F o r c e , w e r e c o n d u c t i n g a surveillance along Magallanes Street, Davao City onO c t o b e r 1 6 , 1 9 8 6 a t a b o u t 1 0 : 0 0 o ' c l o c k i n t h e mo rn in g. T hey spotted pe tition er carrying a "b ur i"ba g and the y notice d him to be actin g suspiciou slyw h i l e t h e y were within the premises of the R i z a l Memorial Colleges T h e y a p p r o a c h e d t h e petitioner and identifiedthemselves as m e m b e r s o f t h e I N P . P e t i t i o n e r attempted to f lee but his a tte mp t to ge t away wa sthwarted by the two notwithstanding his resistance. T hey then chec ked the "buri" bag of the pe tition erwhere they found one (1) caliber .38 Smith & Wessonrev olver w ith Ser ial N o. 770196 tw o (2) ro un ds o f live ammunition for a .38 caliber gun a smoke (teargas) grenade, and two (2) live ammunitions for a .22caliber gun. They brought the petitioner to the policestation for further investigation. In the course of thes a m e , t h e petitioner was asked to show t h e necessary licen se or au th or ity to po ssess f irear msand a mmun ition s fo un d in his p ossession but hefailed to do so.- He was then taken to the Davao Metrodiscom officeand the prohibited articles recovered from him wereindorsed to M/Sgt. Didoy the officer then on duty. Hewas prosecuted for illegal possession of firearms andammunition s in the Reg io nal Tria l Cou rt of Da vaoCity wherein after a plea of not guilty and trial on themerits a dec isio n was ren dered o n October 8 , 1987finding petitioner guilty of the offense. (It appearingth at the accu sed wa s below eigh teen (18 ) year s oldat the time of the commission of the offense (Art. 68,p a r . 2 ) , h e w a s s e n t e n c e d t o a n i n d e t e r m i n a t e pe nalty rang in g fr om TE N (10 ) YE ARS an d ONE (1 ) DAY of prision mayor to TWELVE (12) Years, FIVE (5)months and Eleven (11) days of Reclusion Temporal ,and to pay the costs. The firearm, ammunitions ands m o k e grenade are forfeited in favor of t h e government and the Branch Clerk of Court is herebydirected to turn over said items to the Chief, DavaoMetrodiscom, Davao City.)- The petitioner interposed an appeal to the Court of A p p e a l s w h e r e i n i n d u e course a decision wasr e n d e r e d o n February 23, 1989 affirming t h e appealed decision with costs against the petitioner.Hence , th is petitio n for rev iew , the main thr ust of w hic h is tha t there be in g no lawf ul

arre st or searc han d seiz ure , the ite ms wh ich were co nfisca te d fromthe p ossession of the petitio ne r are in ad missib le inevidence against him. ISSUE WON the warrantless search imposed o n t h e petitioner is valid HELD NO Ratio - The argument of the Solicitor General that when thetw o p olice me n appr oache d th e petitio ne r, he wa sa c t u a l l y c o m m i t t i n g o r h a d j u s t committed theo f f e n s e o f i l l e g a l p o s s e s s i o n o f f i r e a r m s a n d a mmun itio ns in the presence of the p olice off icer sa n d consequently the search and seizure of t h e co ntraba nd wa s inc id en tal to the la wfu l arre st inaccorda nce with Section 12 , Ru le 1 26 of the 1 98 5Rules on Criminal Procedure is untenable. At the timethe peace officers in this case identified themselvesand ap prehe nde d th e petitio ner as he atte mp te d toflee they did not know that he had committed, or wasactually committing the offense of illegal possessionof firearms an d ammu nition s. T hey just suspec ted th at he wa s h id in g something in the b uri bag . Theyd i d n o w know what its contents were. The s a i d c ircu msta nces d id no t ju stif y an arrest w itho ut awarrant.However, there are many instances where a warranta n d s e i z u r e c a n b e e f f e c t e d w i t h o u t n e c e s s a r i l y being preceded by an arrest, foremost of which is the" s t o p a n d s e a r c h " w i t h o u t a s e a r c h w a r r a n t a t military or police checkpoints, the constitutionality orva lidity of w hic h has been u phe ld b y th is Co ur t in Valmonte vs. de Villa (to quote: Not all searches and seizures are prohibited. Those which are reasonableare n ot fo rb id den . A reaso nab le sea rch is no t to be d e t e r m i n e d b y a n y f i x e d f o r m u l a b u t i s t o b e resolved according to the facts of each case. Where,f o r e x a m p l e , t h e o f f i c e r m e r e l y d r a w s a s i d e t h e curtain of a vacan t veh ic le w hic h is parke d on the public fair grounds, or simply looks into a vehicle or f l a s h e s a l i g h t t h e r e i n , these do not constituteu n r e a s o n a b l e s e a r c h . T r u e , t h e m a n n i n g o f checkpoints by the military is susceptible of abuse by t h e m e n i n uniform in the same manner that a l l governmental power is susceptible of abuse. But, at the cost of occasional inconvenience, discomfort and even irritation to the citizen, the checkpoints duringt h e s e abnormal times, when conducted w i t h i n reasonable limits, are part of the price we pay for ano r d e r l y s o c i e t y a n d a p e a c e f u l c o m m u n i t y . Ch eck po in ts ma y also be rega rde d as mea sure s tothwar t p lo ts to desta bilize the g over nme nt in the in ter est of pu blic secur ity. In this con nection , th eCou rt may take jud ic ial n otice of the shift to ur banc e n t e r s a n d t h e i r s u b u r b s o f t h e i n s u r g e n c y movement, so clearly reflected in the i n c r e a s e d k illing s in citie s of p olice an d militar y me n by NPA "sparro w un its, " n ot to men tion the ab un dance of u n l i c e n s e d firearms and the alarming rise i n lawlessness and violence in such urban centers, not a l l of which are reported in media, most likely b r o u g h t a b o u t b y d e t e r i o r a t i n g e c o n o m i c conditions ? which all sum up to what one can rightly consider, at the very least, as abnormal times.)

- In this case , th e warran tless searc h and seiz ure ism o r e r e a s o n a b l e c o n s i d e r i n g t h a t u n l i k e i n t h e forme r, it was effec te d on the basis of a pr oba blec a u s e . T h e p r o b a b l e c a u s e i s t h a t w h e n t h e petit io ner acte d su sp ic io usly and attempted to flee with the buri bag there was a probable cause that hewa s concea ling so me th in g illegal in the bag an d itw a s t h e r i g h t a n d d u t y o f t h e p o l i c e o f f i c e r s t o in sp ect the sa me . It is too muc h in dee d to req uiret h e p o l i c e officers to search the bag in t h e possession of the petitioner only after they shall haveobtained a searc h warran t for the p urp ose . Suc h anexerc ise ma y pro ve to be use less, futile and muchtoo late.- In People vs. CFI of Rizal , the Court held as follows:. . . I n t h e ordinary cases where warrant i s indispensably necessary, the mechanics prescribedby the Constitution and reitera te d in the Rules o f Co ur t must be f ollo wed an d sa tisf ie d. But We nee dn ot argue that there are exce ptio ns. T hu s in the extraordinary events where warrant is not necessaryto effect a valid search or seizure, or when the lattercann ot be per for me d excep t with ou t warra nt, wha tconstitutes a reasonable or unreasonable search ors e i z u r e becomes purely a judicial question,d e t e r m i n a b l e f r o m t h e u n i q u e n e s s o f t h e circumstances involved, including the purpose of thes e a r c h o r s e i z u r e , t h e p r e s e n c e o r a b s e n c e o f probable cause, the manner in which the search andseizure wa s ma de, the place or thing searc hed an dthe charac ter of the artic les pr ocured. Clear ly , th esearch in the case at bar can be sustained under theexce ption s here to fore d iscu ssed , and hence , th ec o n s t i t u t i o n a l g u a r a n t e e a g a i n s t u n r e a s o n a b l e searches and seizures has not been violated. Dispositive The petition is denie

CRESPO v MOGUL 151 SCRA 462GANCAYCO; June 30, 1987 NATURE Petition to review the decision of the Circuit CriminalC o u r t o f L u c e n a C i t y ( p e t i t i o n e r p r a y s t h a t respondent j u d g e b e p e r p e t u a l l y e n j o i n e d f r o m enforcing his threat to proceed with the arraignmentand trail of petitioner, ordering respondent Judge todismiss the said case, and declaring the obligation of petitioner as purely civil.) FACTS - Assistant Fiscal Proceso de Gala filed an informationfor estafa against Mario Crespo in Circ uit Cr iminalC o u r t o f L u c e n a C i t y . W h e n t h e c a s e w a s s e t f o r arraign me nt, th e accuse d filed a motion to deferarraignment on the ground that there was a pendingpetition for review filed with the Secretary of Justiceof the resolution of the Office of the Provincial Fiscalfor the filing of the information. The presiding judge(le odegario Mog ul) den ie d the motio n thr ou gh h isorder.- T h e a c c u s e d f i l e d a petition for certiorari andprohibition with prayer for a preliminary writ of i n j u n c t i o n . I n a n o r d e r ( A u g 1 7 1 9 7 7 ) , t h e C A re stra ine d Ju dge Mog ul from procee ding with the arraignment of the accused until

further orders fromthe Court- On Ma y 15 1 97 8, a dec isio n wa s ma de by the CA gra nting the wr it and per petua lly re straining the j u d g e f r o m e n f o r c i n g h i s t h r e a t t o c o m p e l t h e arraignment of the accused in the case until the Deptof Justice shall have finally resolved the petition forreview.- O n Marc h 22, 19 78 , The Un der secretary of Justice Ho n Catalino Maca raig Jr , resolving the pe tition fo rrev iew , rever sed the resolutio n of th e Office o f th ePro vincial F isca l an d directe d th e fiscal to mo ve for immediate dismissal of the information filed againstthe accu sed . The Pro vincial F isca l f ile d a mo tion tod ismi ss for in su ff icienc y of evide nce on Apr il 10 ,1 97 8. O n Nove mb er 24 1 97 8, T he Ju dge de nied themotion and set the arraignment- T h e accused filed a petition for c e r t i o r a r i , pro hib itio n, an d man damus with petitio n for theissua nce of pre limin ary wr it of pr oh ib itio n and /o rtemporary restraining order in the CA. On January 231 9 7 9 , a r e s t r a i n i n g o r d e r w a s i s s u e d b y t h e C A aga in st the th reate ned ac t of arraign me nt o f the accused. However, in a decision of October 25 1979,t h e C A d i s m i s s e d t h e p e t i t i o n a n d l i f t e d t h e restraining order of Jan 23,1979. The motion forreconsideration of the accused was d e n i e d i n a resolution. ISSUE WON the tr ia l cou rt ac ting o n a motio n to dismiss ac r i m i n a l c a s e f i l e d b y t h e P r o v i n c i a l F i s c a l u p o n in str uctio ns of the Secretar y of Justice to wh om the case was e leva ted f or review, ma y refuse to gra ntthe motion and insist on the arraignment and trial onthe merits HELD YES Ratio O nce an inf or matio n is f ile d in cour t, thec ou rts prior pe rmission must be sec ured if f isca lwants to reinvestigate the case. While it is true thatt h e f i s c a l has the quasi judicial discretion t o determine whether or not a criminal case should befiled in court or not, once the case had already beenbrought to Court, whatever disposition the fiscal mayfee l sh ou ld be pro per in the case therea fter sho uldbe addressed for the consideration of the Court. DISPOSITION Petition dismissed

PEOPLE v OVILLA 65 Phil 722VILLA-REAL; June 27, 1938 NATURE This is an appeal by the offended party, Petra Flores, from the order of the Court of First Instance of Laguna. FACTS - ORDE R OF CFI :"T he pr ov inc ia l fiscal hav in g f ile d a motio n in the ab ove en titled case pra ying fo r the dismissa l of the case, an d th e cour t ha ving fo un dmeritorious the reasons alleged therein, add case ishereb y dismisse d, as p raye d, w ith costs de of ic io ,an d th e bo nd f ile d for the te mp orar y re lease o f the a c c u s e d i s h e r e b y o r d e r e d c a n c e l l e d . I t i s s o ordered." ISSUE WON the pr ov inc ia l fisca l has au th or ity to co nd uctanother preliminary investigation and thereafter

askthe Cour t of Fir st Insta nce to dismiss th e cr iminalcase remanded by the justice of the peace, after thelatte r ha d con duc te d the p relimin ar y investiga tiona n d i s s u e d a n o r d e r t o t h e e f f e c t t h a t t h e r e w a s pro bab le cau se to pr osecute th e offen se char gedwhich falls within the jurisdiction of the Court of FirstInstance." HELD After a criminal case has been remanded b y t h e ju stic e of th e peace to the Cou rt o f First Instance wh ich ha s jurisd ic tion to tr y it on the merits, an dbe fore the pr ov inc ia l fiscal has f iled the nece ssa ry info rma tion , the la tter n ot o nly ha s the power bu t also the duty to investigate the facts upon which the complaint filed in the justice of the peace court was base d, to exa mine the evidence su bmitte d to the justice of the peace and such other evidence as theparties may deem proper to submit on their own freew ill or o n de ma nd of the fisca l, fo r the p ur po se of de ter mining whe th er th ere is at lea st prima fac ie evide nce esta blishing the g uilt of the accused an d ove rcoming th e presump tion of innoce nce in his favor. If after he has done all this a n d considering all the circumstances of the case, t h e fiscal believes that the evidence is not sufficient to establish prima facie the guilt of the accu sed, he should sub mit to the co urt b e f o r e w h i c h the case is pending the corresponding motion for dismissal. The provinc ial fiscal of Lag una co mp lied w ith all the serequire men ts be for e asking for the dismissa l of the present case , the reb y keep in g with in th e power sconferre d up on h im by sec tion 16 87 o f the RevisedAdministrative Code Dispositive Finding no merit in the sole e r r o r assigned by the appellant, the offended party in thiscase, the or der ap peale d fro m is hereb y aff ir med,'with costs against the appellant

inv estiga tion and that the ir f in din gsc o n s t i t u t e s u f f i c i e n t b a s i s f o r t h e i s s u a n c e o f warrants of arrest.-respo nde nt ju stif ie s h is o rder as an exerc ise of h is j u d i c i a l p o w e r t o r e v i e w t h e f i s c a l ' s f i n d i n g s o f probable cause. He further maintains that the failureof petitioners to file the required affidavits destroysthe presumption of regularity in the performance of petitioners' official duties, particularly in the light of th e lo ng sta nd in g prac tice of th e Office of the CityFiscal of Butuan of attaching to the informations filedwith the court the affidavits of prosecution witnessesand o th er doc ume ntary ev id ence pre sen te d dur in gthe preliminary investigation-jud ge de nied motio n. An d asked the sub mission of documents earlier asked for.*eve ntua lly, petitio ne rs sub mitted the d ocu me ntsren der in g th e case mu te (ha ha) an d acade mic. Butth e Cou rt dec id ed to tac kle the issue n one th ele ss.Some warrants were granted, some were remandedto ISSUE WON the respondent city judge may, for the purposeof issuing a warran t of arre st, compe l th e fiscal tosub mi t to th e cour t th e su pp or ting aff id av its an do th er doc ume ntary ev id ence pre se nte d dur in g the preliminary investigation HELD NO.- T h e p r i m a r y r e q u i r e m e n t f o r t h e i s s u a n c e o f a warrant of arrest is the existence of probable cause(Sec. 3, Art. IV of the 1973 Constitution). P.D. No. 911authorizes the fiscal or state prosecutor to determinethe existence of probable cause.There is thu s n o disp ute th at the jud ge ma y re ly up on the fisca l's certificatio n of the ex iste nce of pr oba ble cause an d, o n th e basis the reof , issue awarrant of arrest. But this does not bind the judge toissue a warrantSection 6, Rule 112 of the Rules of Court::"Warra nt of arre st, whe n issu ed . - If the jud ge besatisfied from the preliminary examination conductedby him or by the investigating officer that the offensecomplained of has been committed and that there isrea so nab le gr ou nd to be lieve tha t th e accuse d hascommitted it, he must issue a warrant or order for hisarrest."-th e ju dge must satisfy h imse lf o f the ex iste nce of pr oba ble cause bef ore issuing a warran t or or der of arre st. If on the face of the inf ormatio n the ju dg ef i n d s n o p r o b a b l e c a u s e , h e m a y d i s r e g a r d t h e fiscal's certification and require the submission of theaffidav its o f witne sses to aid him in arr iv in g at aco nclusio n a s to the ex iste nce of a pro bab le cau se.W itho ut th e aff ida vits of the pr osec utio n w itne sse sa n d o t h e r evidence which, as a matter of longstanding practice had been attached t o t h e inf ormatio ns filed in h is sala , respo nde nt fo un d th einformations inadequate bases for the determinationof probable causeAlso, Rule on Summary Procedure in Special Cases,i s applicable to some of the crimes in the s a i d informations. This rule requires that the complainto r information must be accompanied by t h e affidavits of the complainant and of his witnesses insuch number of copies as there are defendants plustwo (2) copies for the court's filesIn said cases, the filing of the affidavits of witnesses with the court is mandatory. Section 9, par. 2 of said Rule prescribes

PLACER v VILLANUEVA 126 SCRA 463ESCOLIN; December 29, 1983 FACTS -petitioners the City F isca l of Butua n City an d hisa ssista nts f ile d in the City Co ur t of Butua n cer taininf or matio ns and cer tified them as follo ws: tha t apreliminary examination has been conducted by mein this case , hav in g exa mined th e complainan t andh i s w i t n e s s e s ; t h a t o n t h e b a s i s o f t h e s w o r n statements and other evidence submitted before thisOffice, there is reasonable ground to believe that thecrime charged has been committed and that hereinaccused is probably guilty thereof.-respo nde nt ju dge se t a hear ing to de termine th epropriety of issuing warrants of arrest. After hearing, judge issued orders requiring petitioners to submit tothe court the affidavits of the prosecution witnessesan d other d ocu men tar y evide nce in support of the in for ma tion s to aid him in th e exerc ise of h is p owerof judicial review of the findings of probable cause bypetitioners- p e t i t i o n e r s f i l e d t w o s e p a r a t e m o t i o n s f o r reconsideration stating that they were authorized tod e t e r m i n e t h e e x i s t e n c e o f p r o b a b l e c a u s e n i a preliminar y

that "the complaint or information must be accompanied by the affidavits of the complainant and of his witnesses in such number of copies as there are defendants plus two (2) copies for the court's files. Section 10 of the Summary Rule provides:

motion to quash. Vivar filed for a motion for reconsideration which was again denied. He was arraigned and pleaded not guilty. Vivar filed a petition for certiorari in the RTC RTC granted the motion to quash and denied the

On the basis of the complaint or information and the affidavits accompanying the same, the court shall make a preliminary determination whether to dismiss the case outright for being patently without basis or merit, or to require further proceedings to be taken. In the latter case, the court may set the case for immediate arraignment of an accused under custody, and if he pleads guilty, may render judgment forthwith. If he pleads not guilty, and in all other cases, the court shall issue an order, accompanied by copies of all the affidavits submitted by the complainant, directing the defendants to appear and submit his counteraffidavit and those of his witnesses at a specified date not later than ten (10) days from receipt thereof.

motion for reconsideration filed by Villaflor. Villaflor filed a petiton for certiorari with the Supreme Court. Issues: Can the court motu proprio order the dismissal of the case on the ground of lack of preliminary investigation? Should the failure of the public prosecutor to conduct preliminary investigation be considered a ground to quash the informations? Held: Preliminary investigation is an inquiry or proceeding to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial.i[17] A component part of due process in criminal justice, preliminary investigation is a statutory and substantive right accorded to the accused before trial. To deny their claim to a preliminary investigation would be to deprive them of the full measure of their right to due process. However, the absence of a preliminary investigation does not impair the validity of the information or otherwise render it defective.ii[19] Neither does it affect the jurisdiction of the court or constitute a ground for quashing the information.iii [20] The trial court, instead of dismissing the information, should hold in abeyance the proceedings and order the public prosecutor to conduct a preliminary investigation

judge also did not commit grave abuse of discretionin remanding some of the cases to the City Fiscal forfur the r investiga tion . Fro m the in for matio ns an daff idavits pre se nte d to him, he fou nd the char gespaten tly w ithout basis or mer it. Fo r resp on den t toissue the warra nts of arre st and try the accusedw o u l d only expose the latter to u n n e c e s s a r y harra ssme nt, anx ie ty an d expe nse. A nd as alread ypointed out, under the Rule on Summary Procedurein Special Cases, the respondent judge has the powerto order the outright dismissal of the charge if, fromthe information and the affidavits attached thereto,he f in ds the sa me to be paten tly w itho ut basis ormerit Villaflor vs. Vivar Facts: An information for slight physical injuries was filed agaist Dindo Vivar for beating Gian Paulo Vivar outside the Fat Tueasday Bar. On his way out, Gian met Dindo who told that next time, I will use my gun on you. The injuries sustained by Gian turned out to be more serious than they had appeared so an Information for serious physical injuries was filed and the charge for slight physical injuries was withdrawn. Another Information for grave threats was filed against Vivar. Vivar, instead of filing a counter affidavit, he filed a Motion to Quash the Information for grave threats since it was made in connection with the charge of serious physical injuries should have been absorbed by the latter, and because the court did not acquire jurisdiction over it. MTC denied the

Furthermore, we do not agree that a preliminary investigation was not conducted. In fact, a preliminary investigation for slight physical injuries was made by the assistant city prosecutor of Muntinlupa City. The said Information was, however, amended when petitioners injuries turned out to be more serious and did not heal within the period specified in the Revised Penal Code. We believe that a new preliminary investigation cannot be demanded by respondent. This is because the change made by the public prosecutor was only a formal amendment.iv[22] The filing of the Amended Information, without a new preliminary investigation, did not violate the right of respondent to be protected from a hasty, malicious and oppressive prosecution; an open and public accusation of a crime; or from the trouble, the expenses and the anxiety of a public trial. The Amended Information could not have come as a surprise to him for the simple and obvious reason that it charged essentially the same offense as that under the original Information. Moreover, if the original charge was related to the amended one, such that an inquiry would elicit

substantially the same facts, then a new preliminary investigation was not necessar

The Court ruled that the absence of a preliminary investigation does not impair the validity of the information. In the case a bar, a preliminary investigation was for slight physical injuries was conducted by the assistant city prosecutor. But the Information was however amended when petitioners injuries turned out to be more serious. However the change in the information was only a formal amendment and did not violate the right of Vivar against hasty, malicious and oppressive prosecution, since it still involves the same facts. Section 3, Rule 117 of the Revised Rules of Criminal Procedure provides the grounds on which an accused can move to quash the complaint or information. Nowhere in the rule mention of a lack of preliminary investigation as a ground for a motion to quash. When accused failed to assert any ground for a motion to quash before arraignment, he has deemed waived his right. GO v CA (PELAYO) 206 SCRA 138FELICIANO; February 11, 1992 NATURE Petition for review on certiorari from the decision of the Court of Appeals FACTS - July 2, 1 99 1 Eldo n Ma gua n ente red a onewa ys t r e e t ( W i l s o n S t . ) f r o m t h e o p p o s i t e d i r e c t i o n (counterflow), heading towards P. Guevarra St. In sodoing, he near ly co llid ed with the car of accusedRolito Go. Go got out of his car and shot Maguan.A sec urity guar d of a nearb y bake sho p w itne sse dthe eve nt an d was ab le to no te th e pla te number of the petitioner. The car was eventually traced to anElisa Ang Go, wife of the accused.- The police were informed that the petitioner had ameal a t the ba ke sh op w here his cred it card wasused to pay for the transaction. Police were able toidentify the card owner as the accused Go and whenhis p icture wa s sh ow n to the sec ur ity g uard w ho po sitiv ely id en tifie d him a s the suppose d assa ilan t.Police then launched a manhunt for Go.- July 8, 1991 Go presented himself in the San Juanpolice statio n w ith his two lawye rs in to w to ver if yreports that he was being hunted down by the police.1. T he po lice deta in ed Go an d a COMPLAI NT for FRUSTRATED HOMICIDE was filed against him.2. Asst. Prov. Prosecutor Villa Ignacio informed Go,in the presence of his lawyers, of his right to availof preliminary investigation but in so doing, Go hadt o w a i v e t h e p r o v i s i o n s i n A r t . 1 2 5 , R P C . G o refused.July 9, 1991 Maguan died as a r e s u l t o f h i s gu nsho t wo un ds before an INFO RMAT ION co uld befiled.- July 11, 1991:3 . The prosecutor filed an I N F O R M A T I O N f o r mur der, inste ad of an inf ormatio n for fr ustra te dh o m i c i d e . T h e

p r o s e c u t o r s t a t e d t h a t n o preliminary investigation was conducted becauseGo refused to waive provisions of Art. 125, RPC.4 . Go s cou nsel f ile d an O MNI BUS MOTIO N FORI MMEDI ATE RE LEAS E AN D PROPE R P RELI MI NARYINVESTIGATION with the allegations that an illegalwarra ntle ss arrest had bee n effecte d and tha t nopreliminary investigation had been conducted andprayed that Go be released on bail.- July 12, 1991:5 . G o f i l e d a n u r g e n t E X - P A R T E M O T I O N F O R SPECIAL RAFFLE in order to expedite action on theb a i l r e c o m m e n d a t i o n . T h e c a s h b o n d w a s approved and Go was released from jail.- July 16, 1991:6 . P r o s e c u t o r f i l e d a MOTION FOR LEAVE TOCONDUCT PRELIMINARY INVESTIGATION a n d praye d th at the co urt procee ding s be suspe nde dmomentarily.7 . T h e t r i a l c o u r t g r a n t e d L E A V E t o c o n d u c t preliminary i n v e s t i g a t i o n a n d c a n c e l l e d t h e arraignment scheduled on August 15, 1991.- July 19, 1991:8 . G o contended through a PETITION F O R CERTI ORARI, P ROHI BI TION AN D MANDA MUS tha tt h e i n f o r m a t i o n w a s n u l l a n d v o i d b e c a u s e n o preliminary investigation had been conducted.- July 23, 1991 Go surrendered to the police and the judge set the arraignment on August 23.August 23, 1991:9. Respo nde nt ju dge issue d a co mmitme nt or derfor Go. Upon arraignment, a plea of not guilty wasentered because Go refused to enter a plea.10. G o filed a PETIT ION FO R HABEAS CORP US an dthe CA issu ed the wr it. The pe tition fo r ha beasc o r p u s w a s c o n s o l i d a t e d w i t h t h e p e t i t i o n f o r certiorari, prohibition and mandamus.Sep te mber 1 9, 1 99 1 The tria l star te d and the pro secu tion presen te d its f irst w itness. Th is wa sf o l l o w e d b y t h r e e m o r e w i t n e s s e s o n O c t o b e r 3 , 1991.- S e p t e m b e r 2 3 , 1 9 9 1 T h e C A d i s m i s s e d t h e petition for habeas corpus and the petition forc e r t i o r a r i , p r o h i b i t i o n a n d m a n d a m u s o n t h e following grounds, among others:a) Valid ity of th e warran tless arre st beca use thecr ime had bee n freshly co mmitted . He wa spositively identified by the witness and his identityhad been established when he came to the policestation.b) Waiver of the right to preliminary investigationwhe n he did no t inv ok e it pro perly an d waiver of any irregularity in his arrest when accused postedbail.c) Va lidity of the inf ormatio n aga in st the accu sedp r e c l u d e d t h e g r a n t o f t h e p e t i t i o n f o r h a b e a s corpus Petitioners Claim: Go contends that the crime hadn o t b e e n j u s t c o m m i t t e d b e c a u s e o f t h e 6 - d a y disparity.N one of the po lice off icer s wh o arrested h im ha dany personal knowledge of the crime. Respondents Comments: G o h a d b e e n v a l i d l y arreste d becau se the cr ime ha d been co mmitte d 6days before he was arrested.Invoking Umali vs. Ramos where the Court upheldthat a warrantless arrest was valid 14 days after thecrime was committed.- The pr osecu tor pr oceede d un der the erro neo ussupposition that Section 7 of Rule 112 was applicablean d requ ire d petitio ner to wa ive the pr ov isio ns of Article 125 of the Revised Penal Code as a conditionfor carrying out a preliminary investigation. Go wasentitled to a preliminary investigation and that rights h o u l d h a v e b e e n a c c o r d e d h i m w i t h o u t a n y conditions. ISSUES

1. WON the warrantless arrest was lawful2 . W O N t h e accused Go had waived his right t o preliminary investigation HELD 1. NO, the warrantless arrest was not lawful Ratio Rule 112, Sec. 7 sta te s tha t a complaint fori n f o r m a t i o n c a n b e f i l e d s a n s p r e l i m i n a r y investigation when a p e r s o n h a s b e e n l a w f u l l y arre sted w itho ut a warra nt excep t th an an aff ida vits h o u l d b e executed by the person who w a s responsib le f or th e arrest. But th e person arre stedcan ask f or prelimin ar y inve stig atio n by the pr oper off icer bef ore th e complaint or inf ormatio n can bef iled. In th is case , th e person arre sted must wa ive th e pro vision s of A12 5, RPC w ith the assista nce of counsel (a lawyer or another person of his choice if alawyer is not available). He may also apply for baild e s p i t e t h e w a i v e r a n d t h e i n v e s t i g a t i o n m u s t terminate within 15 days. Reasoning Umil vs. Ramos only applies to continuing crimes soit does not apply in the case at bar. Murder is not acontinuing crime because it happens in one place ata particular point in time and ends there as well.- T h e w a r r a n t l e s s a r r e s t d o e s n o t f o l l o w t h e requisites in Rule 113, Sec. 5 because:>The arrest took place 6 days after Maguan wass h o t w h e r e a s t h e R o C p r o v i d e t h a t t h e c r i m e sho uld ha ve been just co mmitte d, is ab ou t to be committed or is being committed.> N o n e o f t h e a r r e s t i n g o f f i c e r s h a d p e r s o n a l knowledge of the facts indicating that Go was theg un ma n as req uired in the RoC. The inf orma tionth at the p olice ha d wa s derive d from eyewitn essaccounts - When Go walked into the police station 6 days afterMaguan was shot, he did not surrender (so as not toi m p l y t h a t h e c o m m i t t e d t h e c r i m e ) n o r w a s h e arrested but he placed himself in the disposal of thepolice authorities.2. NO , Go ha d no t waived h is righ t to pre limina ryinvestigation. Ratio The rule is that the right to p r e l i m i n a r y in ve stig atio n is wa ive d when the accused fa ils toin vo ke it bef ore or at the time of enter ing a p lea atarraignment. Reasoning - The right to have a preliminary investigationconducted before being bound over to trial for acriminal offense a n d h e n c e f o r m a l l y a t r i s k o f in carceratio n or some other pe nalty , is n ot a mereformal or technical right; it is a substantive right.- T h e n a t u r e of the crime demanded that a preliminary investigation be conducted. Go did askfor a preliminary investigation from the start. On theday the inf ormatio n for mur der was f iled , he alsof iled an O MNI BUS MOTIO N for IMME DIAT E REL EASEa nd P RELI MIN ARY INVES TIGA TION . T he Cour t is no trea dy to ig no re th at ac t by Go and consider it a s awaiver based simply on the contention of the SolGenthat the motion should have been filed with the trialcourt and not the prosecutor.- Acc ord in g to Crespo vs. Mog ul : The pre limina ry investigation conducted by the fiscal for the purposeof de ter mini ng w hether a p rima fac ie case exists w a r r a n t i n g t h e p r o s e c u t i o n

o f t h e a c c u s e d i s ter mina ted u po n th e filing of the inf ormatio n in th ep r o p e r c o u r t . S h o u l d t h e f i s c a l f i n d i t p r o p e r t o conduct a reinvestigation of the case, at such stage,th e permission of the Cou rt must be secure d. Af ters u c h r e i n v e s t i g a t i o n t h e f i n d i n g a n d reco mme nda tion s of the f isca l sho uld be sub mitte dto the Court for appropriate action.- However, in the case at bar, Gos omnibus motiona s k e d f o r a P R E L I M I N A R Y I N V E S T I G A T I O N n o t REINVESTIGATION as discussed in Crespo vs. Mogul. The Pro secu to r also f ile d a MOTI ON for LE AVE TO C O N D U C T P R E L I M I N A R Y I N V E S T I G A T I O N s o t h e omnibus motion of Go was, in effect, filed in the trialcourt. Go did ask for a preliminary investigation onth e very da y tha t the inf ormatio n wa s filed w itho utsu ch p relimin ary inv estiga tion , an d tha t the tr ia lco urt was 5 da ys later ap pr ised of the desir e of thepetitioner for such preliminary investigation.- There wa s no wa ive r of the r ig ht to pre limina ryinvestigation because Go had vigorously insisted onh i s r i g h t t o p r e l i m i n a r y investigation before hisa r r a i g n m e n t . A t t h e t i m e o f h i s a r r a i g n m e n t , petitioner was already before the Court of Appeals onc e r t i o r a r i , p r o h i b i t i o n a n d m a n d a m u s p r e c i s e l y asking fo r a pre limina ry inv estiga tion bef ore beingforced to stand trial.- Go s act of p osti ng ba il cann ot be dee me d to be awa ive r o f his righ t to pre limina ry inv estiga tion . Goasked for release on recognizance or on bail and forpreliminary investigation in one omnibus motion. Heh a d t h u s c l a i m e d h i s r i g h t t o p r e l i m i n a r y investigation before respondent Judge approved thec a s h b o n d p o s t e d b y p e t i t i o n e r a n d o r d e r e d h i s release. Obiter - Howe ver, co ntrar y to pe tition er 's co nte ntio n, the failure to accor d pre limina ry inve stiga tio n, w hile c o n s t i t u t i n g a d e n i a l o f t h e a p p r o p r i a t e a n d f u l l measure of the statutory process of criminal justice,did n ot imp air th e validity of th e inf ormatio n for murder nor affect the jurisdiction of the trial court.- I n the ca se at bar, a tr ia l for me rits had a lread yc o m m e n c e d a n d t h e p r o s e c u t i o n h a d a l r e a d y presented 4 witnesses.> T h i s , however, still entitles the accused t o preliminar y in ve stigatio n. Trial o n th e meritssho uld be suspe nde d or held in abeya nce an d ap r e l i m i n a r y i n v e s t i g a t i o n s h o u l d a c c o r d e d t o petitioner, even if eventually, the prosecutor mayor may not find probable cause. The point is thatGo was not accorded his proper rights.> As fo r bail, Go is still en title d to be released o nba il as a matter o f right. Sh ou ld the ev id ence against the accused be strong, the bail can then becancelled.> To hold that the rights of Go were obliterated bythe presentation of evidence in the proceedings int h e t r i a l c o u r t w o u l d b e t o l e g i t i m i z e t h e deprivation of due process. Dispositive A CCORDIN GLY , th e Co ur t Re so lv ed toG RAN T the Petitio n for Re vie w on Certio rar i. T heOrder of the trial court dated 17 July 1991 is herebySET ASI DE an d NULL IFIED , and the Dec isio n of theCou rt of A ppea ls da te d 23 Sep tember 1 99 1 here byREVERSED.- T he Office of th e Prov inc ia l Pro sec utor is here byO R D E R E D t o c o n d u c t f o r t h w i t h a p r e l i m i n a r y investigation

of the charge of murder againstpetitioner Go, and to complete such p r e l i m i n a r y investigation within a period of fifteen (15) days fromcomme ncemen t th ereof . The tria l o n the merits of the criminal case in the Regional Trial Court shall beS U S P E N D E D t o a w a i t t h e c o n c l u s i o n o f t h e preliminary investigation. Meantime, petitioner is hereby ORDERED releasedforthw ith u po n po stin g of a cash bail b on d of O neH u n d r e d T h o u s a n d P e s o s ( P 1 0 0 , 0 0 0 . 0 0 ) . T h i s re lease sha ll be with ou t pre judice to issu e, sho uldthe any lawful order that the trial court Office of theProvincial Prosecutor move for cancellation of all atthe conclusion of the preliminary investigation. SEPARATE OPINIONCRUZ [concurring] - There wa s no wa ive r of the r ig ht to pre limina ryinvestigation even if Go freely participated in his trialand his counsel even cross-examined the prosecutionwitnesses.- G o h a d f r o m t h e s t a r t d e m a n d e d a p r e l i m i n a r y in ve stig atio n an d th at his counse l ha d relucta ntlyp a r t i c i p a t e d i n t h e t r i a l o n l y b e c a u s e t h e c o u r t threatened to replace him with a counsel de oficio if he did not. The petitioner was virtually compelled tog o t o t r i a l . S u c h c o m p u l s i o n a n d t h e u n j u s t i f i e d den ia l of a c lear statutor y righ t of the pe tition ervitiated the pr oceedin gs as v io la tive of pr oced ura ldue process.It appears that the trial court has been moved by adesir e to ca ter to pub lic op in io n to the detrime nt of the impartial administration of justice. The petitioneras portraye d by the me dia is no t exactly a popularperson. Nevertheless, the trial court should not havebee n in fluence d by this irre leva nt consideratio n,re membering in stead tha t its on ly guide was the mandate of the law. GUTIERREZ [concurring] - The need for a trial court to follow the Rules and tobe fa ir, impartia l, and per sisten t in ge ttin g the tr uef a c t s of a case is present in all cases but i t i s particularly impo rtan t if the accu sed is indigent;more so, if he is one of those unfortunates who seemto spend more time behind bars than outside. GRIO-AQUINO [dissenting] - After 4 witn esses have alrea dy testified , a mongthem an eye witn ess wh o ide ntif ie d th e accused a sthe gunman and a security guard who identified theplate number of the gunman's car, there is no needt o conduct a preliminary investigation the s o l e purpose of wh ich w ou ld be to ascer ta in if there iss u f f i c i e n t g r o u n d t o b e l i e v e t h a t a c r i m e w a s co mmitte d (which the pe titioner d oes no t disp ute)and that he (the petitioner) is probably guilty thereof (which the prosecutor, by filing the i n f o r m a t i o n against him, presumably believed to be so).T his case d id n ot su ffer fro m a lack of pre viousinvestigation. Diligent police work, with ample mediacovera ge, led to th e ide ntif ica tion of th e suspec twho, 7 days after the shooting, appeared at the San Juan police station to verify news reports that he wasth e object of a p olice ma nh un t. There w itne sse sidentified him to be the assailant.- It should be remembered that as important as is theright of the accused to a preliminary investigation, iti s n o t a c o n s t i t u t i o n a l r i g h t . I t s a b s e n c e i s n o t a gro un d to qua sh the inf ormatio n. It d oes n ot affec tthe court's jurisdiction, nor impair the validity of thein for ma tion , n or con stitute an infr inge men t of the right of the accused to confront

witnesses.- T h e p e t i t i o n e r ' s m o t i o n f o r a p r e l i m i n a r y investigation is n o t m o r e i m p o r t a n t t h a n h i s application for release on bail, just as the conduct of such preliminary investigation is not more importantt h a n t h e h e a r i n g o f t h e a p p l i c a t i o n f o r b a i l . T h e court's hearing of the application for bail should notbe sub or dina ted to the pre limina ry inv estiga tion of th e charge . The hear in g sho uld n ot be suspe nde d,but should be allowed to proceed because the partiesw i l l h a v e a n o p p o r t u n i t y t o s h o w n o t o n l y : ( a ) w hether or n ot there is p ro bab le cause to be lieve tha t the pe tition er killed E ld on Mag uan , bu t more impo rtan tly (b ) whether or n ot the ev id ence of h isgu ilt is str on g. The jud ge 's determin atio n tha t th ee v i d e n c e o f h i s g u i l t i s s t r o n g w o u l d n a t u r a l l y foreclose the need for a preliminary investigation toascertain the probability of his guilt.- Go was indeed arrested by the police. Arrest is thetaking of a person into custody in order that he mayb e b o u n d t o answer for the commission of a n offe nse . An arre st is ma de by an ac tua l re straint of the person to be arrested, or by his submission to thecustody of the person making the arrest

iUy vs sandiganbayan Before the Court is the Motion for Further Clarification filed by Ombudsman Aniano A. Desierto of the Court's ruling in its decision dated August 9, 1999 and resolution dated February 22, 2000 that the prosecutory power of the Ombudsman extends only to cases cognizable by the Sandiganbayan and that the Ombudsman has no authority to prosecute cases falling within the jurisdiction of regular courts. The Court stated in its decision dated August 9, 1999: In this connection, it is the prosecutor, not the Ombudsman, who has the authority to file the corresponding information/s against petitioner in the regional trial court. The Ombudsman exercises prosecutorial powers only in cases cognizable by the Sandiganbayan. It explained in the resolution of February 22, 2000 that: (t)he clear import of such pronouncement is to recognize the authority of the State and regular provincial and city prosecutors under the Department of Justice to have control over prosecution of cases falling within the jurisdiction of the regular courts. The investigation and prosecutorial powers of the Ombudsman relate to cases rightfully falling within the jurisdiction of the Sandiganbayan under Section 15 (1) of R.A. 6770 ("An Act Providing for the Functional and Structural Organization of the Office of the Ombudsman, and for other purposes") which vests upon the Ombudsman "primary jurisdiction over cases cognizable by the Sandiganbayan" And this is further buttressed by Section 11 (4a) of R.A. 6770 which emphasizes that the Office of the Special Prosecutor shall have the power to "conduct preliminary investigation and prosecute criminal cases within the jurisdiction of the Sandiganbayan." Thus, repeated references to the Sandiganbayan's jurisdiction clearly serve to limit the Ombudsman's and Special Prosecutor's authority to cases cognizable by the Sandiganbayan. Seeking clarification of the foregoing ruling, respondent Ombudsman raises the following points: (1) The jurisdiction of the Honorable Sandiganbayan is not parallel to or equated with the broader jurisdiction of the Office of the Ombudsman; (2) The phrase "primary jurisdiction of the Office of the Ombudsman over cases cognizable by the Sandiganbayan" is not a delimitation of its jurisdiction solely to Sandiganbayan cases; and (3) The authority of the Office of the Special Prosecutor to prosecute cases before the Sandiganbayan cannot be confused with the broader investigatory and prosecutorial powers of the Office of the Ombudsman. Thus, the matter that needs to be discussed herein is the scope of the power of the Ombudsman to conduct preliminary investigation and the subsequent prosecution of criminal offenses in the light of the provisions of the Ombudsman Act of 1989 (Republic Act [RA] 6770). We held that the Ombudsman is clothed with authority to conduct preliminary investigation and to prosecute all criminal cases involving public officers and employees, not only those within the jurisdiction of the Sandiganbayan, but those within the jurisdiction of the regular courts as well. The authority of the Ombudsman to investigate and prosecute offenses committed by public officers and employees is founded in Section 15 and Section 11 of RA 6770. Section 15 vests the Ombudsman with the power to investigate and prosecute any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient, thus: Sec. 15. Powers, Functions and Duties.--The Office of the Ombudsman shall have the following powers, functions and duties: (1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of this primary jurisdiction, it may take over, at any stage, from any investigatory agency of Government, the investigation of such cases; x x x Section 11 grants the Office of the Special Prosecutor, an organic component of the Office of the Ombudsman under the latters supervision and control, the power to conduct preliminary investigation and prosecute criminal cases within the jurisdiction of the Sandiganbayan. It states: Sec. 11. Structural Organization. x x x xxx (3) The Office of the Special Prosecutor shall be composed of the Special Prosecutor and his prosecution staff. The Office of the Special Prosecutor shall be an organic component of the Office of the Ombudsman and shall be under the supervision and control of the Ombudsman. (4) The Office of the Special Prosecutor shall, under the supervision and control and upon authority of the Ombudsman, have the following powers:

(a) (b) (c)

To conduct preliminary investigation and prosecute criminal cases within the jurisdiction of the Sandiganbayan; To enter into plea bargaining agreements; and To perform such other duties assigned to it by the Ombudsman.

The power to investigate and to prosecute granted by law to the Ombudsman is plenary and unqualified. It pertains to any act or omission of any public officer or employee when such act or omission appears to be illegal, unjust, improper or inefficient. The law does not make a distinction between cases cognizable by the Sandiganbayan and those cognizable by regular courts. It has been held that the clause any illegal act or omission of any public official is broad enough to embrace any crime committed by a public officer or employee.[1] The reference made by RA 6770 to cases cognizable by the Sandiganbayan, particularly in Section 15 (1) giving the Ombudsman primary jurisdiction over cases cognizable by the Sandiganbayan, and Section 11 (4) granting the Special Prosecutor the power to conduct preliminary investigation and prosecute criminal cases within the jurisdiction of the Sandiganbayan, should not be construed as confining the scope of the investigatory and prosecutory power of the Ombudsman to such cases. Section 15 of RA 6770 gives the Ombudsman primary jurisdiction over cases cognizable by the Sandiganbayan. The law defines such primary jurisdiction as authorizing the Ombudsman "to take over, at any stage, from any investigatory agency of the government, the investigation of such cases." The grant of this authority does not necessarily imply the exclusion from its jurisdiction of cases involving public officers and employees cognizable by other courts. The exercise by the Ombudsman of his primary jurisdiction over cases cognizable by the Sandiganbayan is not incompatible with the discharge of his duty to investigate and prosecute other offenses committed by public officers and employees. Indeed, it must be stressed that the powers granted by the legislature to the Ombudsman are very broad and encompass all kinds of malfeasance, misfeasance and non-feasance committed by public officers and employees during their tenure of office.[2] Moreover, the jurisdiction of the Office of the Ombudsman should not be equated with the limited authority of the Special Prosecutor under Section 11 of RA 6770. The Office of the Special Prosecutor is merely a component of the Office of the Ombudsman and may only act under the supervision and control and upon authority of the Ombudsman.[3] Its power to conduct preliminary investigation and to prosecute is limited to criminal cases within the jurisdiction of the Sandiganbayan. Certainly, the lawmakers did not intend to confine the investigatory and prosecutory power of the Ombudsman to these types of cases. The Ombudsman is mandated by law to act on all complaints against officers and employees of the government and to enforce their administrative, civil and criminal liability in every case where the evidence warrants.[4] To carry out this duty, the law allows him to utilize the personnel of his office and/or designate any fiscal, state prosecutor or lawyer in the government service to act as special investigator or prosecutor to assist in the investigation and prosecution of certain cases. Those designated or deputized to assist him work under his supervision and control.[5] The law likewise allows him to direct the Special Prosecutor to prosecute cases outside the Sandiganbayan's jurisdiction in accordance with Section 11 (4c) of RA 6770. The prosecution of offenses committed by public officers and employees is one of the most important functions of the Ombudsman. In passing RA 6770, the Congress deliberately endowed the Ombudsman with such power to make him a more active and effective agent of the people in ensuring accountability in public office.[6] A review of the development of our Ombudsman laws reveals this intent. The concept of Ombudsman originated in Sweden in the early 19th century, referring to an officer appointed by the legislature to handle the peoples grievances against administrative and judicial actions. He was primarily tasked with receiving complaints from persons aggrieved by administrative action or inaction, conducting investigation thereon, and making recommendations to the appropriate administrative agency based on his findings. He relied mainly on the power of persuasion and the high prestige of the office to effect his recommendations.[7] In this jurisdiction, several Ombudsman-like agencies were established by past Presidents to serve as the peoples medium for airing grievances and seeking redress against abuses and misconduct in the government. These offices were conceived with the view of raising the standard in public service and ensuring integrity and efficiency in the government. In May 1950, President Elpidio Quirino created the Integrity Board charged with receiving complaints against public officials for acts of corruption, dereliction of duty and irregularity in office, and conducting a thorough investigation of these complaints. The Integrity Board was succeeded by several other agencies which performed basically the same functions of complaints-handling and investigation. These were the Presidential Complaints and Action Commission under President Ramon Magsaysay, the Presidential Committee on Administration Performance Efficiency under President Carlos Garcia, the Presidential Anti-Graft Committee under President Diosdado Macapagal, and the Presidential Agency on Reform and Government Operations and the Office of the Citizens Counselor, both under President Ferdinand Marcos. It was observed, however, that these agencies failed to realize their objective for they did not enjoy the political independence necessary for the effective performance of their function as government critic. Furthermore, their powers extended to no more than fact-finding and recommending.[8] Thus, in the advent of the 1973 Constitution, the members of the Constitutional Convention saw the need to constitutionalize the office of an Ombudsman, to give it political independence and adequate powers to enforce its recommendations.[9] The 1973 Constitution mandated the legislature to create an office of the Ombudsman to be known as Tanodbayan. Its powers shall not be limited to receiving complaints and making recommendations, but shall also include the filing and prosecution of criminal, civil or administrative case before the appropriate body in case of failure of justice. Section 6, Article XIII of the 1973 Constitution read: Sec. 6. The Batasang Pambansa shall create an office of the Ombudsman, to be known as Tanodbayan, which shall receive and investigate complaints relative to public office, including those in government-owned or controlled corporations, make appropriate recommendations, and in case of failure of justice as defined by law, file and prosecute the corresponding criminal, civil or administrative case before the proper court or body.

Implementing this constitutional provision, President Marcos, on June 11, 1978, exercising his power under Proclamation 1081, enacted Presidential Decree (PD) 1487 creating the Office of the Ombudsman to be known as Tanodbayan. Its principal task was to investigate, on complaint, any administrative act[10] of any administrative agency[11] including any government-owned or controlled corporation.[12] The Tanodbayan also had the duty to file and prosecute the corresponding criminal, civil, or administrative case before the Sandiganbayan or the proper court or body if he has reason to believe that any public official, employee, or other person has acted in a manner resulting in a failure of justice.[13] It should be noted, however, that the prosecution of cases falling within the jurisdiction of the Sandiganbayan was to be done by the Tanodbayan through the Special Prosecutor who, according to PD 1486,[14] had the exclusive authority to conduct preliminary investigation, file information for and prosecute cases within the jurisdiction of said court. The Special Prosecutor was then under the control and supervision of the Secretary of Justice.[15] Shortly after its enactment, PD 1487 was amended by PD 1607 which took effect on December 10, 1978. The amendatory law broadened the authority of the Tanodbayan to investigate administrative acts of administrative agencies by authorizing it to conduct an investigation on its own motion or initiative, even without a complaint from any person.[16] The new law also expanded the prosecutory function of the Tanodbayan by creating the Office of the Chief Special Prosecutor in the Office of the Tanodbayan and placing under his direction and control the Special Prosecutor who had the exclusive authority to conduct preliminary investigation of all cases cognizable by the Sandiganbayan; to file informations therefor and to direct and control the prosecution of said cases therein.[17] Thus, the law provided that if the Tanodbayan has reason to believe that any public official, employee, or other person has acted in a manner warranting criminal or disciplinary action or proceedings, he shall cause him to be investigated by the Office of the Chief Special Prosecutor who shall file and prosecute the corresponding criminal or administrative case before the Sandiganbayan or the proper court or before the proper administrative agency.[18] On July 18, 1979, PD 1630 was enacted further amending PD 1487 and PD 1607. PD 1630 reorganized the Office of the Tanodbayan and transferred the powers previously vested in the Special Prosecutor to the Tanodbayan himself. Thus, the Tanodbayan was empowered to directly conduct preliminary investigation, file information and prosecute cases within the jurisdiction of the Sandiganbayan and other courts. The amendment gave the Tanodbayan the exclusive authority to conduct preliminary investigation of all cases cognizable by the Sandiganbayan; to file information therefor and to direct and control the prosecution of said cases.[19] Section 10 of PD 1630 provided: Sec. 10. Powers.--The Tanodbayan shall have the following powers: (a) He may investigate, on complaint by any person or on his own motion or initiative, any administrative act whether amounting to any criminal offense or not of any administrative agency including any government-owned or controlled corporation; xxx (e) If after preliminary investigation he finds a prima facie case, he may file the necessary information or complaint with the Sandiganbayan or any proper court or administrative agency and prosecute the same. Section 18 further stated: Sec. 18. Prosecution of Public Personnel or Other Person.--If the Tanodbayan has reason to believe that any public official, employee or other person has acted in a manner warranting criminal or disciplinary action or proceedings, he shall conduct the necessary investigation and shall file and prosecute the corresponding criminal or administrative case before the Sandiganbayan or the proper court or before the proper administrative agency. With the ratification of the 1987 Constitution, a new Office of the Ombudsman was created. The present Ombudsman, as protector of the people, is mandated to act promptly on complaints filed in any form or manner against public officials or employees of the government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations, and to notify the complainants of the action taken and the result thereof. [20] He possesses the following powers, functions and duties: 1. Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient; 2. Direct, upon complaint or at its own instance, any public official or employee of the Government, or any subdivision, agency or instrumentality thereof, as well as of any government-owned or controlled corporation with original charter, to perform and expedite any act or duty required by law, or to stop, prevent and correct any abuse or impropriety in the performance of duties. 3. Direct the officer concerned to take appropriate action against a public official or employee at fault, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith. 4. Direct the officer concerned, in any appropriate case, and subject to such limitations as may be provided by law, to furnish it with copies of documents relating to contracts or transactions entered into by his office involving the disbursement or use of public funds or properties, and report any irregularity to the Commission on Audit for appropriate action. 5. Request any government agency for assistance and information necessary in the discharge of its responsibilities, and to examine, if necessary, pertinent records and documents. 6. Publicize matters covered by its investigation when circumstances so warrant and with due prudence.

7. Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in the Government and make recommendations for their elimination and the observance of high standards of ethics and efficiency. 8. Promulgate its rules of procedure and exercise such other powers or perform such functions or duties as may be provided by law.[21]

As a new Office of the Ombudsman was established, the then existing Tanodbayan became the Office of the Special Prosecutor which continued to function and exercise its powers as provided by law, except those conferred on the Office of the Ombudsman created under the 1987 Constitution.[22] The frameworks for the Office of the Ombudsman and the Office of the Special Prosecutor were laid down by President Corazon Aquino in Executive Order (EO) 243 and EO 244, both passed on July 24, 1987. In September 1989, Congress passed RA 6770 providing for the functional and structural organization of the Office of the Ombudsman. As in the previous laws on the Ombudsman, RA 6770 gave the present Ombudsman not only the duty to receive and relay the people's grievances, but also the duty to investigate and prosecute for and in their behalf, civil, criminal and administrative offenses committed by government officers and employees as embodied in Sections 15 and 11 of the law. Clearly, the Philippine Ombudsman departs from the classical Ombudsman model whose function is merely to receive and process the people's complaints against corrupt and abusive government personnel. The Philippine Ombudsman, as protector of the people, is armed with the power to prosecute erring public officers and employees, giving him an active role in the enforcement of laws on anti-graft and corrupt practices and such other offenses that may be committed by such officers and employees. The legislature has vested him with broad powers to enable him to implement his own actions. Recognizing the importance of this power, the Court cannot derogate the same by limiting it only to cases cognizable by the Sandiganbayan. It is apparent from the history and the language of the present law that the legislature intended such power to apply not only to cases within the jurisdiction of the Sandiganbayan but also those within the jurisdiction of regular courts. The Court observed in the case of Republic vs. Sandiganbayan:[23] A perusal of the law originally creating the Office of the Ombudsman then (to be known as the Tanodbayan), and the amendatory laws issued subsequent thereto will show that, at its inception, the Office of the Ombudsman was already vested with the power to investigate and prosecute civil and criminal cases before the Sandiganbayan and even the regular courts. xxx Presidential Decree No. 1630 was the existing law governing the then Tanodbayan when Republic Act No. 6770 was enacted providing for the functional and structural organization of the present Office of the Ombudsman. This later law retained in the Ombudsman the power of the former Tanodbayan to investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient. x x x. Finally, it must be clarified that the authority of the Ombudsman to prosecute cases involving public officers and employees before the regular courts does not conflict with the power of the regular prosecutors under the Department of Justice to control and direct the prosecution of all criminal actions under Rule 110 of the Revised Rules of Criminal Procedure. The Rules of Court must be read in conjunction with RA 6770 which charged the Ombudsman with the duty to investigate and prosecute all illegal acts and omissions of public officers and employees. The Court held in the case of Sanchez vs. Demetriou[24] that the power of the Ombudsman under Section 15 (1) of RA 6770 is not an exclusive authority but rather a shared or concurrent authority in respect of the offense charged. Thus, Administrative Order No. 8 issued by the Office of the Ombudsman provides: The prosecution of case cognizable by the Sandiganbayan shall be under the direct exclusive control and supervision of the Office of the Ombudsman. In cases cognizable by regular Courts, the control and supervision by the Office of the Ombudsman is only in Ombudsman cases in the sense defined (therein).[25] The law recognizes a concurrence of jurisdiction between the Office of the Ombudsman and other investigative agencies of government in the prosecution of cases cognizable by regular courts. IN VIEW WHEREOF, the Court's ruling in its decision dated August 9, 1999 and its resolution dated February 20, 2000 that the Ombudsman exercises prosecutorial powers only in cases cognizable by the Sandiganbayan is SET ASIDE.

Sales v sandiganbayan iiFacts: The petitioner, the incumbent mayor of Pagudpud Ilocos Norte, shot the former mayor and his political rival Atty. Benemerito. After the shooting,
he surrendered himself and hence the police inspector and wife of the victim filed a criminal complaint for murder against him. The judge after conducting the preliminary examination (p.e. for brevity) found probable cause and issued a warrant of arrest. Also after conducting the preliminary investigation (p.i. for brevity), he issued a resolution forwarding the case to the prosecutor for appropriate action. Petitioner received a subpoena directing him to file his counter affidavit, affidavit of witnesses and other supporting documents. He did it the following day. While proceedings are ongoing, he filed a petition for habeas corpus with the C.A alleging that: the warrant was null and void because the judge who issued it was a relative by affinity of the private respondent and the p.e. and the p.i. were illegal and irregular as the judge doesnt have jurisdiction on the case. The C.A. granted the petition holding that the judge was a relative by affinity by 3rd degree to the private respondent and the p.i. he conducted has 2 stages, the p.e. and the p.i. proper. The proceeding now consists only of one stage. He conducted the requisite investigation prior to the issuance of warrant of arrest. Moreover he did not complete it. He only examined the witness of the complainant. But the prosecution instead of conducting p.i. of his own forwarded the records to the Ombudsman (OMB for brevity) for the latter to conduct the same. The OMB directed the petitioner to submit his counter affidavit, but he did not comply with it finding the same superfluous. The graft investigator recommended the filing of information for murder which the OMB approved. Petitioner received a copy of the resolution but prevented seeking reconsideration thereof he filed a motion to defer issuance of warrant of arrest pending the determination of probable

cause. The Sandiganbayan denied the motion. This is now a petition for review on the decision of the Sandiganbayan. Issues: (1) Whether or Not the OMB followed the procedure in conducting preliminary investigation. (2) Whether or Not petitioner was afforded an opportunity to be heard and to submit controverting evidence. Held: The proper procedure in the conduct of preliminary investigation was not followed because of the following reasons. Firstly, the preliminary investigation was conducted by 3 different investigators, none of whom completed the preliminary investigation There was not one continuous proceeding but rather, cases of passing the buck, the last one being the OMB throwing the buck to the Sandiganbayan. Secondly, the charge of murder is a non bailable offense. The gravity of the offense alone should have merited a deeper and more thorough preliminary investigation. The OMB did nothing of the sort but wallowed the resolution of the graft investigator. He did a worse job than the judge, by actually adopting the resolution of the graft investigator without doing anything and threw everything to the Sandiganbayan for evaluation. Thirdly, a person under preliminary investigation by the OMB is entitled to a motion for reconsideration, as maintained by the Rules of Procedure by the OMB. The filing of the motion for reconsideration is an integral part of the preliminary investigation proper. The denial thereof is tantamount to the denial of the right itself to a preliminary investigation. This fact alone renders preliminary investigation conducted in this case incomplete. And lastly, it was patent error for the Sandiganbayan to have relied purely on the OMBs certification of probable cause given the prevailing facts of the case much more so in the face of the latters flawed report and one side factual findings. The court cannot accept the Sandiganbayans assertion of having found probable cause on its own, considering the OMBs defective report and findings, which merely rekied on the testimonies of the witnesses for the prosecution and disregarded the evidence for the defense. Judgment is rendered setting aside the resolution of the Sandiganbayan, ordering the Sandiganbayan to quash the warrant of arrest and remanding the OMB for completion of the preliminary investigation

iii iv