Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 144293

December 4, 2002

JOSUE R. LADIANA, petitioner,

vs.
PEOPLE OF THE PHILIPPINES, respondent.
DECISION
PANGANIBAN, J.:
The Constitution bars the admission in evidence of any statement extracted by the police from the accused
without the assistance of competent and independent counsel during a custodial investigation. However, a
counter-affidavit voluntarily presented by the accused during the preliminary investigation, even if made
without the assistance of counsel, may be used as evidence against the affiant.
The Case
Before us is a Petition for Review under Rule 45 of the Rules of Court, assailing the April 10, 2000
Decision1 and August 4, 2000 Resolution2 of the Sandiganbayan (First Division) in Criminal Case No. 16988.
The dispositive portion of the assailed Decision reads as follows:
"WHEREFORE, judgment is hereby rendered finding accused JOSUE R. LADIANA GUILTY beyond
reasonable doubt of the crime of homicide and, in the absence of any modifying circumstance, sentencing the
said accused to: (a) suffer an indeterminate sentence of imprisonment of ten (10) years of prision mayor, as
minimum, to seventeen (17) years and four (4) months of reclusion temporal, as maximum[;] (b) suffer all the
appropriate accessory penalties consequent thereto; (c) indemnify the heirs of the victim, Francisco San Juan, in
the total amount of Fifty Six Thousand Five Hundred Pesos (P56,500.00); and (d) pay the costs."3
The assailed Resolution denied petitioners Motion for Reconsideration.
Petitioner was originally charged with murder before the Sandiganbayan in an Information4 dated August 5,
1991. However, the anti-graft court issued an Order5 dated October 14, 1991, noting that "besides the allegation
that the crime was allegedly committed by the accused while he was taking advantage of his official position,
nothing else is in the Information to indicate this fact so that, as the Information stands, nothing except a
conclusion of fact exists to vest jurisdiction [in] this Court over the accused and over the crime for which he is
charged."
Further, the Order gave the government sufficient time to amend the Information to show adequate facts to vest
the Sandiganbayan with jurisdiction over the case. Subsequently, an Amended Information,6 still charging
petitioner with murder, was filed on April 1, 1992. The accusatory portion reads as follows:

"That on or about the 29th day of December 1989, in the Municipality of Lumban, Laguna, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, a public officer, being then a member
of the Integrated National Police (INP now PNP) assigned at the Lumban Police Station, Lumban, Laguna,
acting in relation to his duty which is primarily to enforce peace and order within his jurisdiction, taking
advantage of his official position confronted Francisco San Juan why the latter was removing the steel pipes
which were previously placed to serve as barricade to prevent the entry of vehicles along P. Jacinto Street,
Barangay Salac, Lumban, Laguna, purposely to insure the safety of persons passing along the said street and
when Francisco San Juan told the accused that the latter has no business in stopping him, said accused who was
armed with a firearm, with intent to kill and with treachery, did then and there willfully, unlawfully and
feloniously attack and sho[o]t Francisco San Juan with the firearm hitting Francisco San Juan at his head and
neck inflicting upon him fatal wounds thereby causing the death of Francisco San Juan."7
During his arraignment on May 8, 1992, petitioner, assisted by his counsel de parte,8 pled not guilty.9 After due
trial, the Sandiganbayan found him guilty of homicide, not murder.
The Facts
In their Memoranda, both the prosecution and the defense substantially relied upon the Sandiganbayans
narration of the facts as follows:
"The prosecution presented five (5) witnesses, namely: Caridad M. San Juan, PO2 Leopoldo Cacalda, Dr.
Rogelio M. Javan, SPO2 Percival A. Gabinete, and Maria T. Cortez. Their respective testimonies, in essence are
as follows, to wit:
"1. CARIDAD MARGALLO SAN JUAN (hereinafter, Caridad) declared that she is the wife of
Francisco San Juan (hereinafter Francisco), the victim in the case at bar. Caridad testified that
Francisco was the Barangay Captain of Barangay Salac, Lumban, Laguna, until he was shot and killed
by accused Ladiana, who happens to be also a distant relative of the decedent.
"Caridad recounted that, on December 29, 1989, she was in her house when an unidentified
woman came and told her that her husband was killed by accused Ladiana. She immediately
called up her sister-in-law before rushing to Jacinto Street where the gruesome incident allegedly
transpired. Thereat, many people were milling around, and Caridad saw the lifeless body of
Francisco lying in the middle of the road and being examined by [SPO2] Percival A. Gabinete.
"Caridad recalled that it was around 11:00 oclock a.m. when she reached the place of the subject
incident. At that point in time, she was not even allowed by the police to touch, much less get
near to, the cadaver of Francisco. Caridad, expectedly, was crying and one of her aunts advised
her to go home.
"Caridad maintained that she was aware that her husband was killed by accused Ladiana because
this was what the woman actually told her. Moreover, accused Ladiana had given himself up to
the police authorities.
"Caridad went on to narrate that, on December 30, 1989, she was at the police station, where she
gave her written statement before police investigator PFC Virgilio Halili (hereinafter, Halili).
"Additionally, Caridad presented the Death Certificate of her husband and testified that he was
eventually buried at the Lumban Cemetery. She declared that she had incurred about Twenty

Thousand Pesos (P20,000.00) for the funeral, burial and other incidental expenses by reason of
the death of Francisco.
"On cross-examination, Caridad testified that, on December 29, 1989, she was in her house and
that she did not hear any gunshot between 10:30 and 11:00 oclock a.m. Caridad also admitted
she did not witness the killing of her husband.
"On questions propounded by the Court, Caridad narrated that her husband suffered two gunshot
wounds - one on the upper right temple and the other on the left cheek. However, Caridad stated
that she was told that the wounds were the entry and the exit points. She also told the Court that
her husband was wearing short pants at the time of his death and that she found some bruises on
his knees.
"Finally, Caridad recalled that, on the date of the incident, her husband was with his close friend,
a certain Rodolfo Cabrera, and some other persons, and that they went to Jacinto Street to repair
the steel humps which were used to block the street during school days for the protection and
safety of the school children.
"2. PO2 LEOPOLDO DE RAMOS CACALDA, JR. (hereinafter, CACALDA) declared that he is a
policeman assigned at the Lumban Police Station in Lumban, Laguna. He has been designated as the
radio operator of the station since 1989.
"Cacalda recounted that, on December 29, 1989, at around 11:00 oclock a.m., somebody, whose
name he could no longer recall, reported to him about an existing trouble along Jacinto Street in
Barangay Salac Cacalda responded by going to the scene, where he was accompanied by Alberto
Mercado, a member of the CAGFIL. Thereat, Cacalda saw the lifeless body of Francisco lying
face up on the road. Cacalda did not examine the body of Francisco. He left the place of the
incident when [SPO2] Percival A. Gabinete and other policemen subsequently arrived.
"Cacalda had gathered from the people milling around the body of Francisco that it was accused
Ladiana who shot and killed Francisco. Cacalda immediately left to look for accused Ladiana.
However, he eventually saw accused Ladiana already inside the jail of the police station and
thereafter learned that said accused had surrendered to the police authority.
"Cacalda recalled that he was later on investigated by Halili because he was the responding
policeman who went to the scene of the incident. Consequently, Cacalda executed a written
statement in relation to the subject incident.
"On cross-examination, Cacalda testified that he was a radio operator and not an investigator of
the police station. He also testified that he did not witness the incident subject matter of the case
at bar.
"Cacalda went on to testify that the people milling around the place of the incident told him that
accused Ladiana had already left. Because of this development, Cacalda proceeded to accused
Ladianaa house but was told that he had already gone to the police station. Cacalda accordingly
went to the police station where he saw accused Ladiana already locked inside the jail. He also
saw a stab wound on accused Ladianas right bicep but he did not anymore ask him how he
sustained the said injury.

"3. DR. ROGELIO JAVAN y MAGRACIA (hereinafter, Javan) declared that he is a physician and the
Municipal Health Officer of Lumban, Laguna.
"Javan recounted that he was the one who performed the necropsy on the cadaver of Francisco
and that he had prepared the corresponding reports and/or documents relating thereto. Javan
made a sketch representing the anterior and posterior views of the body of Francisco, and labeled
and placed red markings on the gunshot wounds found on the said cadaver. The marking
Gunshot wound A is the point of entry, which is one (1) centimeter in diameter and situated two
(2) inches behind the left ear. The marking Gunshot wound B is the point of exit of Gunshot
wound A, which is two (2) centimeters in diameter and found above the right cheekbone and one
(1) inch below the right eye. Javan also testified that there is another gunshot wound and the
point of entry and exit are labeled as Gunshot wound C and Gunshot wound D, respectively.
Gunshot wound D is one and one-half (1-1/2) centimeters in diameter and located at the left
cheek, three and one-half (3-1/2) centimeters below the left eye, while Gunshot wound C is one
(1) centimeter in diameter and found at the right lateral aspect of the neck, at the level of the
adams apple.
"According to Javan, the assailant must be behind the victim when he inflicted Gunshot wound
A. As regards Gunshot wound C, the assailant likewise must be behind the victim, at a distance
of more than twenty-four (24) inches away.
"Lastly, Javan testified that he was not able to retrieve any bullet during the examination.
However, judging from the size of the wound and the point of entry, Javan opined that the
firearm used was probably a caliber 38.
"On questions propounded by the Court, Javan testified that Gunshot wound A could have been
fired first because the trajectory is on the same level so much so that the assailant and the victim
could have been both standing. Javan inferred that Gunshot wound C could have been inflicted
while the victim was already falling down. Javan then stressed that both wounds are fatal in
nature.
"4. SPO2 PERCIVAL AMBROSIO GABINETE (hereinafter, Gabinete) declared that he is a police
officer and a resident of No. 4055 Villa Josefina Subdivision, Sta. Cruz, Laguna.
"The testimony of Gabinete was subsequently dispensed with, upon the admission of the defense
that he was part of the group of policemen who proceeded to the place of the subject incident and
that he found the body of Francisco lying along the road. Additionally, the defense admitted the
existence of the receipt issued by Funeraria de Mesa dated January 3, 1990 in the sum of Six
Thousand Five Hundred Pesos (P6,500.00).
"5. MARIO TALAVERA CORTEZ (hereinafter, Cortez) declared that he is a retired Assistant
Prosecutor of Laguna.
"Prior to the conduct of the examination-in-chief on Cortez, the defense counsel made an
admission as to the authorship, authenticity, and voluntariness of the execution of the counteraffidavit of accused Ladiana, which was subscribed and sworn to before Cortez. In said counteraffidavit, accused Ladiana allegedly admitted to making the fatal shots on Francisco. However,
accused Ladiana allegedly did so in self-defense as Francisco was then purportedly attacking
accused Ladiana and had, in fact, already inflicted a stab wound on the arm of accused Ladiana.

"However, Cortez emphasized that he was not the one who conducted the preliminary
investigation of the complaint which led to the filing of the subject case. Additionally, Cortez
testified that he would not be able to anymore recognize the face of the affiant in the said
counter-affidavit, but maintained that there was a person who appeared and identified himself as
Josue Ladiana before he affixed his signature on the counter-affidavit.
"After the presentation of Cortez, the prosecution filed its formal offer of evidence and rested its
case.
"On May 31, 1995, this Court issued a resolution admitting all the documentary evidence
submitted by the prosecution.
"On August 20, 1996, accused Ladiana filed a Motion for Leave of Court to File Demurrer to
Evidence dated August 16, 1995, claiming that: (i) a review of the documentary and testimonial
evidence adduced by the prosecution allegedly failed to show that the accused is guilty of the
offense charged; (ii) at best, the evidence submitted by the prosecution are allegedly hearsay in
character, considering that the supposed eyewitness in the person of Rodolfo Cabrera was never
presented in court; and (iii) the prosecution was allegedly merely able to prove the fact of death
of the victim, but not the identity of the person who caused said death.
"On August 23, 1996, this Court issued an Order of even date holding that the filing of a
demurrer to evidence is no longer appropriate considering that accused Ladiana received a copy
of this Courts resolution dated May 31, 1995 on the admission of the prosecutions documentary
exhibits as early as May 25, 1995.
"On September 2, 1996, in view of his perception that the evidence submitted by the prosecution
is allegedly inadequate to sustain a conviction, accused Ladiana, through counsel, waived his
right to present controverting evidence. Instead, he asked for time to file a written memorandum.
Thus, both parties were given time within which to do so, after which the case shall be deemed
submitted for resolution.
"Thereafter, this Court received on October 25, 1996 by mail the Memorandum for the defense.
As for the prosecution, it opted not to file any."10 (Citations omitted)
Ruling of the Sandiganbayan
The Sandiganbayan ruled that the prosecution had been able to establish the guilt of petitioner beyond
reasonable doubt. The court a quo held that his Counter-Affidavit,11 in which he had admitted to having fired the
fatal shots that caused the victims death,12 may be used as evidence against him. It underscored the admission
made by the defense as to the authorship, the authenticity and the voluntariness of the execution of the CounterAffidavit.13 In short, it ruled that the document had sufficiently established his responsibility for the death of the
victim. However, it found no evidence of treachery; thus, it convicted him of homicide only.14
Hence, this Petition.15
Issues
In his Memorandum, petitioner raises the following issues for this Courts consideration:

"I. Whether or not the Sandiganbayan may convict the accused-petitioner beyond reasonable doubt of
the crime of homicide even in the absence of any eyewitness who personally saw the sho[o]ting of the
victim by the accused, basing it only on the testimony of the prosecutor who had administered the oath
on the Counter-affidavit filed by petitioner-accused.
"II. Whether or not the prosecution has presented proof beyond reasonable doubt to overcome the
constitutional presumption of innocence of the accused and his right against self-incrimination on the
basis of the Counter-affidavit whose execution was admitted by the counsel of the petitioner, but not by
the accused personally.
"III. Whether or not the Counter-affidavit of the accused-petitioner which was considered by the
Sandiganbayan in its decision as similar to an extrajudicial confession may [be] admitted against him as
evidenc[e] of guilt beyond reasonable doubt even if he was not assi[s]ted then by counsel and while he
was under custodial investigation.
"IV. Whether or not the Sandiganbayan is constitutionally and legally correct in issuing the Order of
August 23, 1996 denying the Motion for Leave of Court to File Demurrer to Evidence dated August 16,
1995 filed by the accused in accordance with Sec. 15 of Rule 120 of the 1985 Rules on Criminal
Procedure in relation to Rule XXI of the Revised Rules of Sandiganbayan.
"V. Whether or not accused is entitled to the mitigating circumstance of voluntary surrender which fact
was admitted by the prosecution as it even used the same as proof of the guilt of the accused."16
In short, petitioner raises the following questions in this appeal: (1) whether the Counter-Affidavit he executed
during the preliminary investigation of this case is admissible proof showing his complicity in the crime, (2)
whether the Sandiganbayan erred in denying his Motion for Leave to File a Demurrer to Evidence, and (3)
whether he is entitled to the mitigating circumstance of voluntary surrender.
This Courts Ruling
The Petition is not meritorious.
First Issue:
Admissibility of Counter-Affidavit
Undeniably, the resolution of this case hinges mainly on the admissibility of the Counter-Affidavit17 submitted
by petitioner during the preliminary investigation. He argues that no counsel was present when the Affidavit
was executed. In support of his argument, he cites the Constitution thus:
"SEC. 12. (1) Any person under investigation for the commission of an offense shall have the right to be
informed of his right to remain silent and to have competent and independent counsel preferably of his own
choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be
waived except in writing and in the presence of counsel.
xxx

xxx

xxx

(3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in
evidence against him."18

It is well-settled that the foregoing legal formalities required by the fundamental law of the land apply only to
extra-judicial confessions or admissions obtained during custodial investigations.19 Indeed, the rights
enumerated in the constitutional provision "exist only in custodial interrogations, or in-custody interrogation of
accused persons."20
Custodial interrogation is the questioning initiated by law enforcement officers after a person has been taken
into custody or otherwise deprived of his freedom of action in any significant way.21
In the present case, petitioner admits that the questioned statements were made during the preliminary
investigation, not during the custodial investigation. However, he argues that the right to competent and
independent counsel also applies during preliminary investigations.
We disagree. A preliminary investigation is an inquiry or a proceeding to determine whether there is sufficient
ground to engender a well-founded belief that a crime has been committed, and that the respondent is probably
guilty thereof and should be held for trial.22
Evidently, a person undergoing preliminary investigation before the public prosecutor cannot be considered as
being under custodial investigation. In fact, this Court has unequivocally declared that a defendant on trial or
under preliminary investigation is not under custodial interrogation.23 It explained as follows:
"His [accused] interrogation by the police, if any there had been would already have been ended at the
time of the filing of the criminal case in court (or the public prosecutors office). Hence, with respect to
a defendant in a criminal case already pending in court (or the public prosecutors office), there is no
occasion to speak of his right while under custodial interrogation laid down by the second and
subsequent sentences of Section 20, Article IV of the 1973 Constitution [now Section 12, Article III of
the 1987 Constitution], for the obvious reason that he is no longer under custodial interrogation."24
There is no question that even in the absence of counsel, the admissions made by petitioner in his CounterAffidavit are not violative of his constitutional rights. It is clear from the undisputed facts that it was not exacted
by the police while he was under custody or interrogation. Hence, the constitutional rights of a person under
custodial investigation as embodied in Article III, Section 12 of the 1987 Constitution, are not at issue in this
case.
However, the accused -- whether in court or undergoing preliminary investigation before the public prosecutor
-- unquestionably possess rights that must be safeguarded. These include: 1) the right to refuse to be made
witnesses; 2) the right not to have any prejudice whatsoever imputed to them by such refusal; 3) the right to
testify on their own behalf, subject to cross-examination by the prosecution; and 4) while testifying, the right to
refuse to answer a specific question that tends to incriminate them for some crime other than that for which they
are being prosecuted.25
We do not, however, agree with the Sandiganbayans characterization of petitioners Counter-Affidavit as an
extrajudicial confession. It is only an admission. Sections 26 and 33 of Rule 130 of the Revised Rules on
Evidence distinguish one from the other as follows:
"SEC. 26. Admissions of a party. The act, declaration or omission of a party as to a relevant fact may be given
in evidence against him.
"SEC. 33. Confession. The declaration of an accused acknowledging his guilt of the offense charged, or of
any offense necessarily included therein, may be given in evidence against him."

In a confession, there is an acknowledgment of guilt; in an admission, there is merely a statement of fact not
directly involving an acknowledgment of guilt or of the criminal intent to commit the offense with which one is
charged.26 Thus, in the case at bar, a statement by the accused admitting the commission of the act charged
against him but denying that it was done with criminal intent is an admission, not a confession.27
The Counter-Affidavit in question contains an admission that petitioner actually shot the victim when the latter
was attacking him. We quote the pertinent portion:
"[K]aya itong si Kapitan San Juan ay sumugod at hinawakan ako sa may leeg ng aking suot na T-shirt upang
ako ay muling saksakin; sa dahilang hindi ako makatakbo o makaiwas sa kabila ng aking pananalag hanggang
magpaputok ako ng pasumala sa kanya; sa bilis ng pangyayari ay hindi ko alam na siya ay tinamaan;"28
Through the above statement, petitioner admits shooting the victim -- which eventually led to the latters death
-- but denies having done it with any criminal intent. In fact, he claims he did it in self-defense. Nevertheless,
whether categorized as a confession or as an admission, it is admissible in evidence against him.
Further, we do not doubt the voluntariness of the Counter-Affidavit. Petitioner himself submitted it to the public
prosecutor to justify his actions in relation to the charges hurled against him. It escapes this Court how he can
cavalierly deny a document that he has voluntarily submitted and originally relied upon in his defense.
In general, admissions may be rebutted by confessing their untruth or by showing they were made by mistake.
The party may also establish that the response that formed the admission was made in a jocular, not a serious,
manner; or that the admission was made in ignorance of the true state of facts.29 Yet, petitioner never offered
any rationalization why such admissions had been made, thus, leaving them unrebutted. In addition, admissions
made under oath, as in the case at bar, are evidence of great weight against the declarant. They throw on him the
burden of showing a mistake.30
Petitioner contends that nowhere in the transcripts of this case can it be found that he has admitted to the
authorship, the authenticity or the voluntariness of the Counter-Affidavit. We quote verbatim the proceedings in
the Sandiganbayan:
"PJ GARCHITORENA
Well, he will identify the person who took the oath before him. Will you deny that it was your client who
took the oath before the Fiscal at the preliminary investigation?
ATTY. ILAGAN
We will admit that, your Honor.
PJ GARCHITORENA
So in that case we will have no question about the authorship, authenticity and the voluntariness of the
execution of the counter-affidavit dated July 31, 1990? Companiero?
ATTY ILAGAN
Admitted, your Honor."31

The admissions of petitioner made through his counsel cannot be any clearer. To be sure, the unbroken stream
of judicial dicta is that, in the conduct of their case, clients are bound by the actions of their counsels, save when
the latters negligence is so gross, reckless and inexcusable that the former are deprived of their day in
court.32Also, clients, being bound by the actions of their counsels, cannot complain that the result of the
litigation might have been different had their lawyers proceeded differently.33 A counsel may err as to the
competency of witnesses, the sufficiency and the relevance of evidence, the proper defense, the burden of proof,
the introduction or the withholding of witnesses or pieces of evidence, or the manner of arguing the case. This
Court, however, has ruled several times that those are not even proper grounds for a new trial, unless the
counsels incompetence is so gross that the clients are prevented from fairly presenting their case.34
Having admitted that he had fatally shot the victim, petitioner had the duty of showing that the killing was
justified, and that the latter incurred no criminal liability therefor.35 Petitioner should have relied on the strength
of his own evidence and not on the weakness of that for the prosecution. Even if his evidence be weak, it cannot
be disbelieved after the accused has admitted the killing.36
Petitioner argues that it was the prosecution that indirectly raised the issue of self-defense. Hence, he could not
be bound by it. This argument deserves scant consideration. As discussed earlier, the declarations contained in
his Counter-Affidavit are admissions that may be used as evidence against him.37 The Sandiganbayan did not
unfairly presume that he had indeed raised the theory of self-defense, because this argument had already been
laid out in his Counter-Affidavit. No presumption was necessary, because the admission was clear and
unequivocal.
Neither do we believe petitioners claim that the anti-graft court "miserably failed to give equal effect or
treatment to all the allegations found therein (Counter-Affidavit) choosing deliberately and without reasonable
basis the parts which are incriminating in character, and ignoring without sufficient legal basis the exculpatory
assertions of the accused."38
The unsubstantiated and uncorroborated statements of petitioner in his Counter-Affidavit are utterly insufficient
to discharge his burden of proving that the act of killing was justified. It is hornbook doctrine that self-defense
must be proved with certainty by sufficient, satisfactory and convincing evidence that excludes any vestige of
criminal aggression on the part of the person invoking it.39 It cannot be entertained if it is uncorroborated by any
separate and competent evidence, and it is also doubtful.40 The question whether the accused acted in selfdefense is essentially a question of fact properly evaluated by the lower court; in this case, the Sandiganbayan.41
By itself, the Counter-Affidavit miserably fails to establish the requisites of self-defense enumerated in the
law.42Had petitioner been more vigilant in protecting his rights, he could have presented clear and cogent
evidence to prove those elements. But, as found by the court a quo, he not only failed to discharge the burden of
proving the existence of the justifying circumstance of self-defense; he did not even bother to present any
evidence at all.43So, we do not see how the Sandiganbayan could have been selective in its treatment of his
Counter-Affidavit.
Verily, if the accused fails to discharge the burden of proving the existence of self-defense or of any other
circumstance that eliminates criminal liability, his conviction shall of necessity follow, on the basis of his
admission of the killing.44 Upholding this principle does not in any way violate his right to be presumed
innocent until proven guilty. When he admitted to having killed the victim, the burden of proving his innocence
fell on him. It became his duty to establish by clear and convincing evidence the lawful justification for the
killing.

Therefore, petitioner can no longer invoke his constitutional right to be presumed innocent of the crime
charged.45 As far as he is concerned, homicide has already been established. The fact of death and its cause were
established by his admissions coupled with the other prosecution evidence including the Certificate of
Death,46 the Certificate of Post-Mortem Examination47 and the Medico-Legal Findings.48 The intent to kill is
likewise presumed from the fact of death.49
Second Issue:
Denial of Motion for Leave to File Demurrer
Petitioner then argues that the Sandiganbayan erred in not giving due course to his Motion for Leave to File
Demurrer to Evidence. He brands this denial as legally and constitutionally wrong.50
We disagree. Prior leave to file a demurrer to evidence is discretionary upon the trial court.51 And, unless there
is grave abuse amounting to lack or excess of jurisdiction in its denial, the trial courts resolution may not be
disturbed.52
Final Issue:
Voluntary Surrender
After vigorously arguing against his own Counter-Affidavit, petitioner, in a surprising change of tenor, implores
this Court to consider his voluntary surrender to the police authorities as a mitigating circumstance. He argues
that two of the prosecution witnesses testified that he had surrendered to the police authorities after the shooting
incident.53 To buttress his argument, he contends that the "main reason for his voluntary surrender is that he
sincerely believe[d] that he was legally justified in defending himself as a policeman when he fought the victim
after he was attacked by the latter."54 It goes without saying that this statement only reaffirms the admissions
contained in his Counter-Affidavit, which he so vehemently tried to discredit.
For voluntary surrender to mitigate criminal liability, the following elements must concur: 1) the offender has
not been actually arrested, 2) the offender surrenders himself to a person in authority or to the latters agent, and
3) the surrender is voluntary.55 To be sufficient, the surrender must be spontaneous and made in a manner clearly
indicating the intent of the accused to surrender unconditionally, either because they acknowledge their guilt or
wish to save the authorities the trouble and the expense that will necessarily be incurred in searching for and
capturing them.56
The only pieces of evidence in support of the plea of voluntary surrender made by petitioner are statements
made by two (2) prosecution witnesses that they were allegedly told by other people that he had already gone to
the police station. There is no showing that he was not actually arrested; or that when he went to the police
station, he surrendered himself to a person in authority. Neither is there any finding that he has evinced a desire
to own to any complicity in the killing.1wphi1
We have ruled in the past that the accused who had gone to the police headquarters merely to report the
shooting incident did not evince any desire to admit responsibility for the killing. Thus, he could not be deemed
to have voluntarily surrendered.57 In the absence of sufficient and convincing proof showing the existence of
indispensable circumstances, we cannot appreciate voluntary surrender to mitigate petitioners penalty.
WHEREFORE, the Petition is DENIED and the assailed Decision and Resolution AFFIRMED. Costs against
petitioner.

SO ORDERED.
Sandoval-Gutierrez, Corona, and Carpio-Morales, JJ., concur.
Puno, (Chairman), J., abroad on official business.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 199082

July 23, 2013

JOSE MIGUEL T. ARROYO, Petitioner,

vs.
DEPARTMENT OF JUSTICE; COMMISSION ON ELECTIONS; HON. LEILA DE LIMA, in her
capacity as Secretary of the Department of Justice; HON. SIXTO BRILLANTES, JR., in his capacity as
Chairperson of the Commission on Elections; and the JOINT DOJ-COMELEC PRELIMINARY
INVESTIGATION COMMITTEE and FACT-FINDING TEAM, Respondents.
x-----------------------x
G.R. No. 199085
BENJAMIN S. ABALOS, SR., Petitioner,
vs.
HON. LEILA DE LIMA, in capacity as Secretary of Justice; HON. SIXTO S. BRILLANTES, JR., in his
capacity as COMELEC Chairperson; RENE V. SARMIENTO, LUCENITO N. TAGLE, ARMANDO V.
VELASCO, ELIAS R. YUSOPH, CHRISTIAN ROBERT S. LIM AND AUGUSTO C. LAGMAN, in their
capacity as COMELEC COMMISSIONERS; CLARO A. ARELLANO, GEORGE C. DEE, JACINTO G.
ANG, ROMEO B. FORTES AND MICHAEL D. VILLARET, in their capacity as CHAIRPERSON AND
MEMBERS, RESPECTIVELY, OF THE JOINT DOJ-COMELEC PRELIMINARY INVESTIGATION
COMMITTEE ON THE 2004 AND 2007 ELECTION FRAUD, Respondents.
x-----------------------x
G.R. No. 199118
GLORIA MACAPAGAL-ARROYO, Petitioner,
vs.
COMMISSION ON ELECTIONS, represented by Chairperson Sixto S. Brillantes, Jr., DEPARTMENT
OF JUSTICE, represented by Secretary Leila M. De Lima, JOINT DOJ-COMELEC PRELIMINARY
INVESTIGATION COMMITTEE, SENATOR AQUILINO M. PIMENTEL III, and DOJ-COMELEC
FACT FINDING TEAM, Respondents.
RESOLUTION
PERALTA, J.:
For resolution are the separate motions for reconsideration filed by movants Gloria Macapagal Arroyo
(GMA)1 in G.R. No. 199118 and Jose Miguel T. Arroyo (Mike Arroyo )2 in G.R. No. 199082 praying that the
Court take a second look at our September 18, 2012 Decision3 dismissing their petitions and supplemental
petitions against respondents Commission on Elections (Comelec), the Department of Justice (DOJ), Senator

Aquilino M. Pimentel III (Senator Pimentel), Joint DOJ-Comelec Preliminary Investigation Committee (Joint
Committee) and DOJ-Comelec Fact-Finding Team (Fact-Finding Team), et al.
For a better perspective, we briefly state the relevant factual and procedural antecedents as found by the Court
in the assailed decision, to wit:
On August 15, 2011, the Comelec and the DOJ issued Joint Order No. 001-2011 creating and constituting a
Joint Committee and Fact-Finding Team (referred to as Joint Panel) on the 2004 and 2007 National Elections
electoral fraud and manipulation cases. The Joint Committee was mandated to conduct the necessary
preliminary investigation on the basis of the evidence gathered and the charges recommended by the FactFinding Team. The Fact-Finding Team, on the other hand, was created for the purpose of gathering real,
documentary, and testimonial evidence which can be utilized in the preliminary investigation to be conducted
by the Joint Committee. Pursuant to Section 74 of the Joint Order, on August 23, 2011, the Joint Committee
promulgated its Rules of Procedure.
In its Initial Report5 dated October 20, 2011, the Fact-Finding Team concluded that manipulation of the results
in the May 14, 2007 senatorial elections in the provinces of North and South Cotabato, and Maguindanao was
indeed perpetrated.6 The Fact-Finding Team recommended, among others, that petitioner Benjamin S. Abalos,
Sr. (Abalos) be subjected to preliminary investigation for electoral sabotage for conspiring to manipulate the
election results in North and South Cotabato; that GMA and Abalos be subjected to another preliminary
investigation for manipulating the election results in Maguindanao;7 and, that Mike Arroyo be subjected to
further investigation.8 The case was docketed as DOJ-Comelec Case No. 001-2011.
Meanwhile, on October 17, 2011, Senator Pimentel filed a ComplaintAffidavit9 for Electoral Sabotage against
petitioners and twelve others, and several John Does and Jane Does. The case was docketed as DOJ-Comelec
Case No. 002-2011.
On October 24, 2011, the Joint Committee issued two subpoenas against petitioners in DOJ-Comelec Case Nos.
001-2011 and 002-2011.10 On November 3, 2011, petitioners, through counsel, appeared before the Joint
Committee11 and respondents therein were ordered to submit their Counter-Affidavits by November 14, 2011.12
Thereafter, petitioners filed before the Court separate Petitions for Certiorari and Prohibition with Prayer for the
Issuance of a Temporary Restraining Order (TRO) and/or Writ of Preliminary Injunction assailing the creation
of the Joint Panel.13 The petitions were eventually consolidated.
On November 14, 2011, Mike Arroyo filed a Motion to Defer Proceedings14 before the Joint Committee, in view
of the pendency of his petition before the Court. On the same day, GMA filed before the Joint Committee an
Omnibus Motion Ad Cautelam15 to require Senator Pimentel to furnish her with documents referred to in his
complaint-affidavit and for the production of election documents as basis for the charge of electoral sabotage.
GMA prayed that she be allowed to file her counter-affidavit within ten (10) days from receipt of the requested
documents.16 Petitioner Abalos, for his part, filed a Motion to Suspend Proceedings (Ex Abundante Ad
Cautelam),17 in view of the pendency of his petition brought before the Court.
In an Order18 dated November 15, 2011, the Joint Committee denied the aforesaid motions of petitioners. GMA,
subsequently, filed a motion for reconsideration.19
On November 16, 2011, the Joint Committee promulgated a Joint Resolution which was later indorsed to the
Comelec.20 On November 18, 2011, the Comelec en banc issued a Resolution21 approving and adopting the Joint
Resolution subject to modifications. The Comelec resolved, among others, that an information for electoral

sabotage be filed against GMA and Abalos, while the charges against Mike Arroyo be dismissed for
insufficiency of evidence.
On even date, pursuant to the above Resolution, the Comelecs Law Department filed with the Regional Trial
Court (RTC), Pasay City, an Information against petitioner GMA, Governor Andal Ampatuan, Sr., and Atty.
Lintang H. Bedol, for violation of Section 42(b)(3) of Republic Act (RA) No. 9369, amending Section 27 (b) of
RA 6646, docketed as Criminal Case No. RPSY-11-04432-CR.22 The case was raffled to Branch 112 and the
corresponding Warrant of Arrest was issued which was served on GMA on the same day.23
On November 18, 2011, GMA filed with the RTC an Urgent Omnibus Motion Ad Cautelam24 with leave to
allow the Joint Committee to resolve the motion for reconsideration filed by GMA, to defer issuance of a
warrant of arrest and a hold departure order, and to proceed to judicial determination of probable cause. She,
likewise, filed with the Comelec a Motion to Vacate Ad Cautelam25 praying that its Resolution be vacated for
being null and void. The RTC, nonetheless, issued a Warrant for her arrest which was duly served. GMA was
later arraigned and she entered a plea of "not guilty." She was, for some time, on hospital arrest but was able to
obtain temporary liberty when her motion for bail was granted. At present, she is again on hospital arrest by
virtue of a warrant issued in another criminal case.
On September 18, 2012, the Court rendered the assailed Decision, the dispositive portion of which reads:
WHEREFORE, premises considered, the petitions and supplemental petitions are DISMISSED. Comelec
Resolution No. 9266 dated August 2, 2011, Joint Order No. 001-2011 dated August 15, 2011, and the FactFinding Teams Initial Report dated October 20, 2011, are declared VALID. However, the Rules of Procedure
on the Conduct of Preliminary Investigation on the Alleged Election Fraud in the 2004 and 2007 National
Elections is declared INEFFECTIVE for lack of publication.
In view of the constitutionality of the Joint Panel and the proceedings having been conducted in accordance
with Rule 112 of the Rules on Criminal Procedure and Rule 34 of the Comelec Rules of Procedure, the conduct
of the preliminary investigation is hereby declared VALID.
Let the proceedings in the Regional Trial Court of Pasay City, Branch 112, where the criminal cases for
electoral sabotage against petitioners GMA and Abalos are pending, proceed with dispatch.
SO ORDERED.26
Hence, these motions for reconsideration.
Issues
Mike Arroyo reiterates his arguments on the independence of the Comelec as basis in nullifying the subject joint
DOJ-Comelec resolutions. Echoing Justice Arturo Brion in his Dissenting and Concurring Opinion,27 Mike
Arroyo insists that the creation of the Joint Panel undermines the decisional independence of the Comelec.28
Mike Arroyo also maintains that the DOJ should conduct preliminary investigation only when deputized by the
Comelec but not exercise concurrent jurisdiction.29 Finally, as has been repeatedly pointed out in his earlier
pleadings before the Court, Mike Arroyo claims that the proceedings involving the electoral sabotage case were
rushed because of pressures from the executive branch of the government.30

For her part, GMA claims that in availing of the procedural remedies available, she merely exercised her earnest
efforts to defend herself and should not have been deemed by the Court as acts which purportedly tend to
demonstrate that she either waived or forfeited her right to submit her counter-affidavit and countervailing
evidence.31 Citing several cases decided by the Court, she likewise faults the Court in not upholding her right to
ask for additional time within which to submit her counter-affidavit and countervailing evidence.32 GMA
highlights that the subject Comelec Resolution creating the Joint Panel is different from the previous Comelec
resolutions requesting the DOJ Secretary to assign prosecutors to assist the Comelec, as the latter emphasize the
role of the DOJ as deputized agency in the conduct of preliminary investigation. She maintains that it is the
Comelec and not the Joint Committee that has the primary, if not exclusive, authority to conduct preliminary
investigation of election cases.33
In their Consolidated Comment,34 respondents defend the creation of the Joint Committee and argue that it does
not undermine the independence of the Comelec as a constitutional body because it is still the Comelec that
ultimately determines probable cause.35 As to the conduct of the preliminary investigation, respondents maintain
that no rights were violated as GMA was afforded the opportunity to defend herself, submit her counteraffidavit and other countervailing evidence.36 They, thus, consider GMAs claim of availing of the remedial
measures as "delaying tactics" employed to thwart the investigation of charges against her by the Joint
Committee.37
The Courts Ruling
Clearly from the above discussion, movants raise issues that have been thoroughly explained by the Court in the
assailed decision. The issues were all addressed and the explanation was exhaustive, thus, we find no reason to
disturb the Courts conclusions.
At any rate, if only to address the motions of the movants herein and to put an end to the questions attached to
the creation of the Joint Panel and, consequently, to the performance of their assigned tasks, we hereby reiterate
our findings and conclusions made in the assailed decision.
This is not the first time that the Court is confronted with the issue of whether the Comelec has the exclusive
power to investigate and prosecute cases of violations of election laws. In Barangay Association for National
Advancement and Transparency (BANAT) Party-List v. Commission on Elections,38 the constitutionality of
Section 4339 of RA 936940 had already been raised by petitioners therein and addressed by the Court. While
recognizing the Comelecs exclusive power to investigate and prosecute cases under Batas Pambansa Bilang
881 or the Omnibus Election Code, the Court pointed out that the framers of the 1987 Constitution did not have
such intention. This exclusivity is thus a legislative enactment that can very well be amended by Section 43 of
RA 9369. Therefore, under the present law, the Comelec and other prosecuting arms of the government, such as
the DOJ, now exercise concurrent jurisdiction in the investigation and prosecution of election offenses.
Indeed, as aptly pointed out by GMA, there is a discrepancy between Comelec Resolution No. 346741 dated
January 12, 2001 and Joint Order No. 001-2011, dated August 15, 2011, creating and constituting a Joint
Committee and Fact-Finding Team on the 2004 and 2007 National Elections electoral fraud and manipulation
cases. However, GMA seemed to miss the date when these two resolutions were promulgated by the Comelec. It
is noteworthy that Comelec Resolution No. 3467 was issued when Section 265 of the Omnibus Election Code
was still effective, while Joint Order No. 001-2011 as well as Comelec Resolution Nos. 873342 and
905743 mentioned in the assailed decision but missed out by GMA in her motion, were issued during the
effectivity of Section 43 of RA 9369, giving the Comelec and other prosecuting arms of the government the
concurrent jurisdiction to investigate and prosecute election offenses. This amendment paved the way for the
discrepancy. In Comelec Resolution No. 3467, the Comelec maintained the continuing deputation of

prosecutors and the Comelec Law Department was tasked to supervise the investigatory and prosecutory
functions of the task force pursuant to the mandate of the Omnibus Election Code. However, with the
amendment, the Comelec likewise changed the tenor of the later resolutions to reflect the new mandate of the
Comelec and other prosecuting arms of the government now exercising concurrent jurisdiction. Thus, the
Comelec Law Department and the Office of the Chief State Prosecutor of the DOJ were tasked to jointly
supervise the investigatory and prosecutory functions of the Comelec-DOJ Task Force. Considering, therefore,
that the later resolutions, including Joint Order No. 001-2011, were issued pursuant to Section 43 of RA 9369
amending Section 265 of BP 881 which was declared "constitutional" in Banat, there is no reason for us to
declare otherwise. To maintain the previous role of other prosecuting arms of the government as mere deputies
despite the amendment would mean challenging Section 43 of RA 9369 anew which has already been settled in
Banat.
To be sure, the creation of a Joint Committee is not repugnant to the concept of "concurrent jurisdiction"
authorized by the amendatory law. As we explained in our September 18, 2012 Decision:
x x x The doctrine of concurrent jurisdiction means equal jurisdiction to deal with the same subject matter.
Contrary to the contention of the petitioners, there is no prohibition on simultaneous exercise of power between
two coordinate bodies. What is prohibited is the situation where one files a complaint against a respondent
initially with one office (such as the Comelec) for preliminary investigation which was immediately acted upon
by said office and the re-filing of substantially the same complaint with another office (such as the DOJ). The
subsequent assumption of jurisdiction by the second office over the cases filed will not be allowed. Indeed, it is
a settled rule that the body or agency that first takes cognizance of the complaint shall exercise jurisdiction to
the exclusion of the others.
xxxx
None of these problems would likely arise in the present case. The Comelec and the DOJ themselves agreed that
they would exercise their concurrent jurisdiction jointly. Although the preliminary investigation was conducted
on the basis of two complaints the initial report of the Fact-Finding Team and the complaint of Senator
Pimentel both complaints were filed with the Joint Committee. Consequently, the complaints were filed with
and the preliminary investigation was conducted by only one investigative body. Thus, we find no reason to
disallow the exercise of concurrent jurisdiction jointly by those given such authority. This is especially true in
this case given the magnitude of the crimes allegedly committed by petitioners. The joint preliminary
investigation also serves to maximize the resources and manpower of both the Comelec and the DOJ for the
prompt disposition of the cases.44
Notwithstanding the grant of concurrent jurisdiction, the Comelec and the DOJ nevertheless included a
provision in the assailed Joint Order whereby the resolutions of the Joint Committee finding probable cause for
election offenses shall still be approved by the Comelec in accordance with the Comelec Rules of
Procedure.45 With more reason, therefore, that we cannot consider the creation of the Joint Committee as an
abdication of the Comelecs independence enshrined in the 1987 Constitution.
Finally, we focus on the validity of the preliminary investigation conducted by the Joint Committee.
The procedure in conducting the preliminary investigation is governed by Rule 112 of the Revised Rules on
Criminal Procedure and Rule 34 of the Comelec Rules of Procedure. Under both Rules,46 the respondent shall
submit his counter-affidavit and that of his witnesses and other supporting documents relied upon for his
defense, within ten (10) days from receipt of the subpoena, with the complaint and supporting affidavits and
documents.47Also in both Rules, respondent is given the right to examine evidence, but such right of

examination is limited only to the documents or evidence submitted by complainants which she may not have
been furnished and to copy them at her expense.48
As to the alleged denial of GMAs right to examine documents, we maintain that no right was violated in view
of the limitation of such right as set forth above. We reiterate our explanation in the assailed decision, to wit:
While it is true that Senator Pimentel referred to certain election documents which served as bases in the
allegations of significant findings specific to the protested municipalities involved, there were no annexes or
attachments to the complaint filed. As stated in the Joint Committees Order dated November 15, 2011 denying
GMAs Omnibus Motion Ad Cautelam, Senator Pimentel was ordered to furnish petitioners with all the
supporting evidence. However, Senator Pimentel manifested that he was adopting all the affidavits attached to
the Fact-Finding Teams Initial Report. Therefore, when GMA was furnished with the documents attached to the
Initial Report, she was already granted the right to examine as guaranteed by the Comelec Rules of Procedure
and the Rules on Criminal Procedure. Those were the only documents submitted by the complainants to the
Committee. If there are other documents that were referred to in Senator Pimentels complaint but were not
submitted to the Joint Committee, the latter considered those documents unnecessary at that point (without
foreclosing the relevance of other evidence that may later be presented during the trial) as the evidence
submitted before it were considered adequate to find probable cause against her. x x x491wphi1
Neither was GMAs right violated when her motion for extension of time within which to submit her counteraffidavit and countervailing evidence was consequently denied. The Rules use the term "shall" in requiring the
respondent to submit counter-affidavit and other countervailing evidence within ten (10) days from receipt of
the subpoena. It is settled that the use of the word "shall" which is a word of command, underscores the
mandatory character of the rule.50 As in any other rule, though, liberality in the application may be allowed
provided that the party is able to present a compelling justification for the non-observance of the mandatory
rules. In the 2008 Revised Manual for Prosecutors, investigating prosecutors allow or grant motions or requests
for extension of time to submit counter-affidavits when the interest of justice demands that respondent be given
reasonable time or sufficient opportunity to engage the services of counsel; examine voluminous records
submitted in support of the complaint or undertake research on novel, complicated or technical questions or
issues of law and facts of the case.51
In this case, GMA claimed that she could not submit her counteraffidavit within the prescribed period because
she needed to examine documents mentioned in Senator Pimentels complaint-affidavit. It appeared, however,
that said documents were not submitted to the Joint Committee and the only supporting documents available
were those attached to the Initial Report of the Fact-Finding Team. Admittedly, GMA was furnished those
documents. Thus, at the time she asked for the extension of time within which to file her counter-affidavit, she
very well knew that the documents she was asking were not in the record of the case. Obviously, she was not
furnished those documents because they were not submitted to the Joint Committee. Logically, she has no right
to examine said documents. We cannot, therefore, fault the Joint Committee in consequently denying her motion
for extension to file counter-affidavit as there was no compelling justification for the non-observance of the
period she was earlier required to follow.
And as we held in the assailed decision:
There might have been overzealousness on the part of the Joint Committee in terminating the investigation,
endorsing the Joint Resolution to the Comelec for approval, and in filing the information in court.
However, speed in the conduct of proceedings by a judicial or quasijudicial officer cannot per se be instantly
attributed to an injudicious performance of functions. The orderly administration of justice remains the

paramount consideration with particular regard to the peculiar circumstances of each case. To be sure,
petitioners were given the opportunity to present countervailing evidence. Instead of complying with the Joint
Committees directive, several motions were filed but were denied by the Joint Committee. Consequently,
petitioners right to submit counter-affidavit and countervailing evidence was forfeited. Taking into account the
constitutional right to speedy disposition of cases and following the procedures set forth in the Rules on
Criminal Procedure and the Comelec Rules of Procedure, the Joint Committee finally reached its conclusion
and referred the case to the Comelec. The latter, in turn, performed its task and filed the information in court.
Indeed, petitioners were given the opportunity to be heard. They even actively participated in the proceedings
and in fact filed several motions before the Joint Committee. Consistent with the constitutional mandate of
speedy disposition of cases, unnecessary delays should be avoided.52
Finally, in our assailed decision, we already took judicial notice that not only did GMA enter a plea of "not
guilty," she also filed a Motion for Bail and after due hearing, it was granted. Apparently, she benefited from the
RTC Order giving her temporary liberty. In filing the motion before the RTC and actively participating therein,
she has chosen to seek judicial remedy before the RTC where the electoral sabotage case is pending instead of
the executive remedy of going back to the Joint Committee for the submission of her counter-affidavit and
countervailing evidence. Besides, as thoroughly discussed in the assailed decision, the irregularity or even the
absence of preliminary investigation does not impair the validity of the information filed against her.
WHEREFORE, premises considered, the Motions for Reconsideration are DENIED for lack of merit.
SO ORDERED.
DIOSDADO M. PERALTA
Associate Justice
WE CONCUR:
MARIA LOURDES P. A. SERENO
Chief Justice

EN BANC
JESUSA ODONEL GENIL,
Complainant,

A.M. No. MTJ-06-1619

[formerly OCA IPI No. 04-1556-MTJ]
Present:

-versus-

JUDGE ROGACIANO Y. RIVERA,

Municipal Trial Court, Sta. Catalina,
Negros Oriental,
Respondent.

PANGANIBAN, C.J.,
PUNO,
QUISUMBING,
YNARES-SANTIAGO
SANDOVAL-GUTIERREZ,
CARPIO,
AUSTRIA-MARTINEZ,
CORONA,
CARPIO MORALES,
CALLEJO,
AZCUNA,
TINGA,
CHICO-NAZARIO, and
GARCIA, JJ.
Promulgated:
January 23, 2006

x-------------------------------------------------x
DECISION
CARPIO MORALES, J.:
Judge Rogaciano Y. Rivera (respondent) of the Municipal Trial Court (MTC) of Sta. Catalina, Negros Oriental
is the subject of two letter-complaints[1] filed on September 11, 2003 before the Office of the Chief Justice by
Jesusa Odonel Genil (complainant), barangay captain of Amio, Sta. Catalina, Negros Oriental.
The events which spawned the filing of the complaint against respondent are related by complainant as follows:
On May 30, 2003, one of complainants constituents, Nancy Silfaban (Nancy), filed before the MTC of Sta.
Catalina, Negros Oriental two criminal complaints against Roderick Sales, one for rape and the other for
forcible abduction with rape, docketed as Criminal Case Nos. 3791 and 3792, respectively. On even date, Nancy
also filed a criminal complaint against Janice Sales for violation of Republic Act 7610, otherwise known as the
Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act, docketed as Criminal
Case No. 3793.
Respondent conducted a preliminary investigation of Criminal Case Nos. 3791 and 3792 two and a half months
later or on August 13, 2003 after the accused was ordered to submit his counter-affidavit, which preliminary
investigation was made in open court.

During the above-said preliminary investigation, Nancy, a minor, was called to the witness stand and, in the
course of her testimony subjected to humiliation as all those present, including respondent, the counsel for the
defense Atty. Arturo Erames, and SPO4 Herminigildo Ortiz Cadungog (SPO4 Cadungog) of the Philippine
National Police (PNP) who acted as prosecutor, were laughing.[2]
Respecting Criminal Case No. 3793 against Janice Sales, respondent had yet to act on it.[3]
Apprehensive that respondent would dismiss the cases which Nancy filed, [4] complainant requested this Court
for a change of venue.
The letter-complaints were eventually referred for investigation to Judge Orlando C. Velasco of Branch 63 of
the Regional Trial Court of Bayawan City who directed respondent to file his Comment thereon and to require
the public prosecutor and the counsel of Roderick Sales to also submit their respective comments.
Complying with Judge Velascos directive, respondent, by Comment [5] dated October 9, 2003, explained that
preliminary investigation on the complaints filed by Nancy were not immediately conducted as the evidence
was weak and unbelievable, it being manifestly inconsistent with, and repugnant to, the natural course of things.
[6]

Respecting the conduct of preliminary investigation in open court on August 13, 2003, respondent claimed that
not only did Nancy not request otherwise; she, albeit a minor, looks energetic, psychologically mature and
somewhat aggressive who answers questions quickly, and there was nothing in her affidavit or testimony which
warranted the exclusion of the public from the proceedings. And respondent disclaimed the occurrence of any
laughing incident during the preliminary investigation, he adding that all were eager to observe the proceedings.
[7]

On complainants request for change of venue, respondent suggested that the cases be forwarded to the Office of
the Provincial Prosecutor of Negros Oriental, Dumaguete City, and unless otherwise directed, he would proceed
to resolve the cases.[8]
In his Comment,[9] SPO4 Cadungog claimed that he is not learned in the law which could explain complainants
dissatisfaction with his performance when he acted as prosecutor during the preliminary investigation of the
complaints which Nancy filed. And he too denied that there was laughing during the preliminary investigation.
[10]

Defense counsel Atty. Erames, by his Comment,[11] also disclaimed that there was laughing during the
preliminary investigation. He advanced though that the relatives of the accused in the first two criminal cases
may have been pleased with Nancys testimonies which tended to support the defense claim that the accused and

Nancy were sweethearts. On complainants request for transfer of venue of the criminal cases, he interposed no
objection.[12]
In his Investigation Report[13] dated October 16, 2003, Judge Velasco noted that Nancy was subjected to
unhampered ridicule, embarrassment and humiliation during the preliminary investigation, and respondent even
ordered her to turn clockwise to the delight of every one present.[14]
Regarding the status of Criminal Case Nos. 3791 and 3792, Judge Velasco reported that they had remained
unresolved by respondent, while Criminal Case No. 3793 had yet to be acted upon.[15]
By letter[16] dated August 13, 2004, respondent, in compliance with two telegrams [17] dated January 23, 2004 and
July 19, 2004 of the Office of the Court Administrator (OCA) directing him to report the status of the cases,
informed that they had been resolved and were ready for transmittal to the Office of the Provincial Prosecutor of
Negros Oriental, Dumaguete City for further disposition.
By Report[18] of February 14, 2005, the OCA recommends that the administrative case against respondent be
docketed as a regular administrative matter and that he be fined in the amount of P21,000 for gross ignorance of
the law, with warning that a repetition of the same or similar act would be dealt with more severely, in light of
the following observations:
xxx [Respondent] took no action on Criminal Case No. 3793 from the date of its filing on 30
May 2003 until 09 October 2003 and offered no explanation for its delay before him. He
conducted the preliminary investigation in Criminal Case Nos. 3791 and 3792 only on 13 August
2003, but he has not yet submitted his resolutions thereon to the Provincial Prosecutor.
Assuming he had already resolved the cases on 13 August 2004, still there was undue delay. xxx
Respondent judge displayed blatant insensitivity to the child victim. He allowed the defense
counsel to cross-examine the child witness and her mother which caused them extreme
humiliation and embarrassment. xxx Parties cannot be subjected to direct examination or crossexamination. Questions or issues that may arise during the investigation should be addressed to
the investigating judge who should propound the same to the party concerned. Noteworthy is
that the Rule on Examination of a Child Witness (A.M. No. 004-07-SC 21 November 2000) does
not permit a defense counsel to even approach a child who is testifying if it appears that the child
is fearful of or intimidated by the counsel. xxx Neither does the Rule require a manifestation
from the child or her mother to exclude the public from the hearing. The court may motu
proprio exclude the public from the courtroom to protect the right to privacy of the child; if
requiring the child to testify in open court would cause psychological harm to him; if it would
hinder the ascertainment of truth or result in his inability to effectively communicate due to
embarrassment, fear or timidity; and if the evidence to be produced is of such character as to be
offensive to decency or public morals.[19] (Emphasis and underscoring supplied)

By Resolution[20] of March 16, 2005, this Court noted the February 14, 2005 OCA Report and required the
parties to manifest within 20 days whether they were submitting the case on the basis of the pleadings/records
already filed and submitted.
Respondent has manifested, by Compliance[21] submitted on June 3, 2005, that he is submitting the case for
resolution. Appended to the Compliance was the December 28, 2004 Resolution [22] of Assistant Prosecutor
Gloria Cynthia P. Icao of the Provincial Prosecution Office of Negros Oriental, bearing the approval of the
Provincial Prosecutor in I.S. Case No. 2004-544 which affirmed and adopted the Resolution of the MTC of Sta.
Catalina, Negros Oriental dismissing Criminal Case No. 3793 (People v. Janice Sales) for lack of merit.
This Court noted respondents Compliance by Resolution[23] of July 6, 2005, as it did note complainants failure
to comply with the March 16, 2005 Resolution, by Resolution[24] of August 10, 2005.
Section 3(b), Rule 112 of the Rules on Criminal Procedure provides that within ten (10) days after the filing of
a criminal complaint, the investigating officer shall either dismiss it if he finds no ground to continue with the
investigation, or issue a subpoena to the respondent to which a copy of the complaint and supporting affidavits
and documents should be attached.
Section 3(e) and (f) of the same Rule provide:
(e) The investigating officer may set a hearing if there are facts and issues to be clarified from a
party or a witness. The parties can be present at the hearing but without the right to examine or
cross-examine. They may, however, submit to the investigating officer questions which may be
asked to the party or witness concerned.
The hearing shall be held within ten (10) days from submission of the counter-affidavits and
other documents or from the expiration of the period for their submission. It shall be terminated
within five (5) days.
(f) Within ten (10) days after the investigation, the investigating officer
shall determine whether or not there is sufficient ground to hold the respondent for trial.
(Emphasis and underscoring Supplied)

Moreover, Section 5 of still the same Rule provides:

SEC. 5. Resolution of investigating judge and its review. Within ten (10) days after the
preliminary investigation, the investigating judge shall transmit the resolution of the case to
the provincial or city prosecutor, or to the Ombudsman or his deputy in cases of offenses
cognizable by the Sandiganbayan in the exercise of its original jurisdiction, for appropriate
action. The resolution shall state the findings of facts and the law supporting his action, together
with the record of the case which shall include: (a) the warrant, if the arrest is by virtue of a
warrant; (b) the affidavits, counter-affidavits and other supporting evidence of the parties; (c) the
undertaking or bail of the accused and the order for his release; (d) the transcripts of the

proceedings during the preliminary investigation; and (e) the order of cancellation of his bail
bond, if the resolution is for the dismissal of the complaint.
xxx (Emphasis and underscoring supplied)

On top of the above-quoted provision of Sec. 3(e) of Rule 112 that the parties in a preliminary investigation
have no right to examine or cross-examine, the Rule on Examination of a Child Witness [25] provides that the
court shall exercise control over the questioning of children so as to facilitate the ascertainment of the truth and
ensure that questions are stated in a form appropriate to their developmental level and protect them from
harassment or undue embarrassment.[26]
The same Rule on Execution of a Child Witness provides that when a child testifies, the court may, motu
proprio, order the exclusion from the courtroom of all persons who do not have a direct interest in the case. In
issuing such order, the court is to consider, inter alia, the developmental level of the child, the nature of the
crime, and the nature of his testimony regarding the crime. It may also exclude the public from the courtroom if
the evidence to be produced is of such character as to be offensive to decency or public morals.[27]
As reflected earlier, while the criminal complaints of Nancy were filed on May 30, 2003 before the MTC, it
was only on August 13, 2003 or after two and a half months that respondent conducted the preliminary
investigation for Criminal Case Nos. 3791 and 3792. And, per the Investigation Report of Judge Velasco, as of
October 16, 2003 or more than four months after Criminal Case No. 3793 was filed, no action had yet been
taken thereon by respondent.
By respondents admission, as of August 13, 2004 or more than a year after the criminal complaints were
filed and exactly a year after the preliminary investigation for Criminal Case Nos. 3791 and 3792 was
conducted, his resolutions thereon had yet to be transmitted to the Office of the Provincial Prosecutor of
Negros Oriental, Dumaguete City.
As the above-quoted provisions of the Rules direct, after a preliminary investigation is conducted, the
investigating judge must perform his ministerial duty to transmit within ten days after the conclusion
thereof the resolution of the case together with the entire records to the provincial prosecutor.[28] If on the other
hand he determines, after examining the complaint and other documents offered in support thereof, that there is
no ground to continue with the inquiry, he should dismiss the complaint and transmit the order of dismissal
together with the records of the case to the provincial prosecutor within ten days from the filing of the
complaint. And, examination or cross-examination by the parties is proscribed. Yet respondent not only
allowed SPO4 Cadungog who acted as prosecutor to cross-examine the accused Roderick Sales; he also
allowed the defense counsel to propound questions to Nancy and her mother.
It is a fundamental principle that the accused in a preliminary investigation has no right to crossexamine the witnesses which the complainant may present. Section 3, Rule 112 of the Rules of

Court expressly provides that the respondent shall only have the right to submit a counteraffidavit, to examine all other evidence submitted by the complainant and, where the fiscal sets a
hearing to propound clarificatory questions to the parties or their witnesses, to be afforded an
opportunity to be present but without the right to examine or cross-examine. [29] (Underscoring
supplied)

Indubitably then, respondent was remiss in the performance of his duties when he not only allowed the crossexamination of the parties during the preliminary investigation but also failed to resolve the criminal
complaints within the period mandated by law.
Judges owe it to the public to be knowledgeable, hence, they are expected to have more than just a modicum of
acquaintance with the statutes and procedural rules.[30] When the law is so elementary, not to know it or to act
as if one does not know it constitutes gross ignorance of the law,[31] the mainspring of injustice.[32]
And judges must be faithful to the laws and maintain professional competence.[33]
xxx Indeed, competence is a mark of a good judge. When a judge displays an utter lack of
familiarity with the rules, he erodes the publics confidence in the competence of our courts.
Such is gross ignorance of the law. Having accepted the exalted position of a judge, he owes the
public and the court the duty to be proficient in the law. Unfamiliarity with the Rules of Court is
a sign of incompetence. Basic rules must be at the palm of his hands. A judge must be
acquainted with legal norms and precepts as well as with procedural rules. xxx
xxxx
Verily, failure to follow basic legal commands embodied in the law and the Rules
constitutes gross ignorance of the law, from which no one is excused, and surely not a
judge.[34](Emphasis and underscoring supplied)

For gross ignorance of the law or procedure then, which is classified as a serious charge under Rule 140 of the
Rules of Court, as amended by A.M. No. 01-8-10-SC,[35] this Court faults respondent for which, under Section
11 of the same rule, any of the following sanctions may be imposed: (1) dismissal from the service, forfeiture
of all or part of the benefits as the Court may determine, and disqualification from reinstatement or
appointment to any public office, including government-owned or controlled corporations; provided, however,
that the forfeiture of benefits shall in no case include accrued leave credits; (2) suspension from office without
salary and other benefits for more than three (3) but not exceeding six (6) months; or (3) a fine of more
than P20,000 but not exceeding P40,000.
The recommendation of the OCA to impose a fine of P21,000, being well-taken, is approved.
WHEREFORE, for gross ignorance of the law and procedure, respondent, Judge Rogaciano Y. Rivera of the
Municipal Trial Court of Sta. Catalina, Negros Oriental, is FINEDin the amount of TWENTY ONE

THOUSAND (P21,000) PESOS and STERNLY WARNED that a repetition of the same or similar act will
merit a more severe penalty.
Let a copy of this Decision be entered in Judge Riveras personal record.
SO ORDERED.

CONCHITA CARPIO MORALES

Associate Justice

THIRD DIVISION
AURELIO M. SIERRA,
Complainant,

Adm. Case No. 7549

Present:

- versus -

JHOSEP Y. LOPEZ, City Prosecutor of Manila,

EUFROCINO SULLA, 1stAssistant City
Prosecutor (ACP), ACP ALEXANDER T. YAP,
ACP MARLO CAMPANILLA, and ACP
ARMANDO VELASCO,
Respondents.

YNARES-SANTIAGO, J.,
Chairperson,
AUSTRIA-MARTINEZ,
CHICO-NAZARIO,
NACHURA, and
REYES, JJ.
Promulgated:
August 29, 2008

x------------------------------------------------------------------------------------x

DECISION
NACHURA, J.:

The instant controversy arose from a complaint for dereliction of duty and gross ignorance of the law by Aurelio
M. Sierra against City Prosecutor of Manila Jhosep Y. Lopez, 1stAssistant City Prosecutor (ACP) Eufrocino
Sulla, Assistant City Prosecutors Alexander Yap, Marlo Campanilla and Armando Velasco.

The facts of the case are as follows:

On July 27, 2006 and August 1, 2006, complainant Aurelio M. Sierra filed several cases before the Office of the
City Prosecutor of Manila for Misrepresentation through Deceit and Syndicated Large Scale Fraud in Land
Titling with Conspiracy, Land Grabbing, Falsification of Public Document and Economic Sabotage.
These cases were first assigned to ACP Alexander T. Yap. The principal respondents therein, namely: Alfredo C.
Ramos, Presentacion Ramos, George S.K. Ty, Atty. Emmanuel Leonardo, and a certain Mr. Cayaban, did not
appear during the scheduled hearing. However, Alfredo and Presentacion Ramos appeared in the morning of
that day ahead of the complainant in which they submitted their respective counter-affidavits, subscribed and
sworn to before ACP Yap. The respondents asked that they be allowed to submit their counter-affidavits ahead
of the scheduled hearing because they had an urgent matter to attend to in the afternoon. In the case of George
S.K. Ty and Mr. Cayaban, their respective counter-affidavits were submitted by their lawyers during the
scheduled hearing in the afternoon, already subscribed and sworn to before a Pasig Prosecutor. Atty. Leonardo
did not submit any counter-affidavit.
Because of ACP Yaps failure to require the presence of respondents in said cases simultaneously with the
complainant, Mr. Sierra asked for the prosecutors inhibition. The cases were then re-raffled to the respondent
ACP Marlo Campanilla who likewise did not require the presence of the respondents in the preliminary
investigation. Because of this, he too was asked to inhibit from the cases by complainant.
The cases were then re-raffled to ACP Armando Velasco who also handled the cases in the same manner as the
two other prosecutors before him. City Prosecutor Jhosep Y. Lopez and 1st ACP Eufrocino A. Sulla affirmed the
correctness of the manner in which their investigating prosecutors handled the cases.
On April 26, 2007, Sierra filed a complaint with the Supreme Court for dereliction of duty and gross ignorance
of the law against City Prosecutor Lopez, 1st ACP Sulla, ACP Yap, ACP Campanilla, and ACP Velasco.
In his complaint, Sierra raises the following questions of law: (1) whether the parties must appear
together before the investigating prosecutor during preliminary investigation; (2) whether the counter-affidavits
of the respondents should be sworn to only before the investigating prosecutor; and (3) whether the
investigating prosecutor erred in denying the request of the complainant for clarificatory questioning.
The Supreme Court Third Division then issued a Resolution dated July 25, 2008 requiring respondents to
comment on the complaint.
In compliance with the Honorable Courts order, respondents filed their Comment dated March 7, 2008 stating
that they handled the cases properly and in accordance with what was provided by law. They also argued that
they had not committed any dereliction of duty and gross ignorance of the law.
We find no merit in the complaint.
Rule 112, particularly Section 3 of the Rules of Court, lays down the basic procedure in preliminary
investigation, as follows:

Sec. 3. Procedure. The preliminary investigation shall be conducted in the following manner:
(a) The complaint shall state the address of the respondent and shall be accompanied by the
affidavits of the complainant and his witnesses, as well as other supporting documents to
establish probable cause. They shall be in such number of copies as there are respondents, plus
two (2) copies for the official file. The affidavits shall be subscribed and sworn to before any
prosecutor or government official authorized to administer oath, or, in their absence or
unavailability, before a notary public, each of whom must certify that he personally examined the
affiants and that he is satisfied that they voluntarily executed and understood their affidavits.
(b) Within ten (10) days after the filing of the complaint, the investigating officer shall either
dismiss it if he finds no ground to continue with the investigation, or issue a subpoena to the
respondent attaching to it a copy of the complaint and its supporting affidavits and documents.
The respondent shall have the right to examine the evidence submitted by the complainant which
he may not have been furnished and to copy them at his expense. If the evidence is voluminous,
the complainant may be required to specify those which he intends to present against the
respondent, and these shall be made available for examination or copying by the respondent at
his expense.
Objects as evidence need not be furnished a party but shall be made available for examination,
copying, or photographing at the expense of the requesting party.
(c) Within ten (10) days from receipt of the subpoena with the complaint and supporting
affidavits and documents, the respondent shall submit his counter-affidavit and that of his
witnesses and other supporting documents relied upon for his defense. The counter-affidavits,
shall be subscribed and sworn to and certified as provided in paragraph (a) of this section, with
copies thereof furnished by him to the complainant. The respondent shall not be allowed to file a
motion to dismiss in lieu of a counter-affidavit.
(d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits
within the ten (10) day period, the investigating officer shall resolve the complaint based on the
evidence presented by the complainant.
(e) The investigating officer may set a hearing if there are facts and issues to be clarified from a
party or a witness. The parties can be present at the hearing but without the right to examine or
cross-examine. They may, however, submit to the investigating officer questions which may be
asked to the party or witness concerned.
The hearing shall be held within ten (10) days from submission of the counter-affidavits and
other documents or from the expiration of the period for their submission. It shall be terminated
within five (5) days.
(f) Within ten (10) days after the investigation, the investigating officer shall determine whether
or not there is sufficient ground to hold the respondent for trial.

This provision of the Rules does not require a confrontation between the parties. Preliminary investigation is
ordinarily conducted through submission of affidavits and supporting documents, through the exchange of
pleadings.
In Rodis, Sr. v. Sandiganbayan[1] we ruled that (the New Rules on Criminal Procedure) do not require as a condition sine qua non to the validity
of the proceedings ( in the preliminary investigation) the presence of the accused for as long as
efforts to reach him were made, and an opportunity to controvert evidence of the complainant is
accorded him. The obvious purpose of the rule is to block attempts of unscrupulous respondents
to thwart the prosecution of offenses by hiding themselves or by employing dilatory tactics.

Since confrontation between the parties is not imperative, it follows that it is not necessary that the
counter-affidavit of respondent be sworn to before the investigating prosecutor himself. It can be sworn to
before another prosecutor. In fact, this is specifically provided in paragraph (c) of Sec. 3, which states that the
counter-affidavit shall be subscribed and sworn to and certified as provided in paragraph (a) of this section x x
x; and paragraph (a), provides:
the affidavits shall be subscribed and sworn to before any prosecutor or government official or in
their absence or unavailability, before a notary public x x x.

Lastly, we hold that the investigating prosecutors did not abuse their discretion when they denied the request of
the complainant for the conduct of clarificatory questioning.Under paragraph (e) of Section 3 above, the
conduct of clarificatory questioning is discretionary upon the prosecutor. Indeed, we already held in Webb v. De
Leon[2] that the decision to call witnesses for clarificatory questions is addressed to the sound discretion of the
investigator, and the investigator alone.
WHEREFORE, premises considered, the complaint is DENIED for lack of merit.
SO ORDERED.

SECOND DIVISION

ERNESTO MARCELO, JR. and LAURO

LLAMES,
Petitioners,

G.R. No. 173081

Present:
CARPIO, J., Chairperson,
NACHURA,
PERALTA,
ABAD, and
MENDOZA, JJ.

- versus -

Promulgated:
December 15, 2010

RAFAEL R. VILLORDON, Assistant City

Prosecutor of Quezon City,
Respondent.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

DECISION

CARPIO, J.:

The Case

Before the Court is a petition for review on certiorari1 assailing the Orders dated 5 January 20062 and 30 May
20063 of the Regional Trial Court (RTC) of Quezon City, Branch 105, in Civil Case No. Q-05-56367.

The Facts
On 2 April 2004, petitioners Ernesto Marcelo, Jr. and Lauro Llames, together with two others, filed with the
Office of the City Prosecutor of Quezon City a criminal complaint4 against their former employer Eduardo R.
Dee, Sr. (Dee). The criminal complaint stemmed from Dees non-payment of their wages as President and
General Manager of New Sampaguita Builders Construction Incorporated.5

On 28 April 2004, respondent Assistant City Prosecutor of Quezon City Rafael R. Villordon (Villordon) issued a
subpoena against Dee to appear at the preliminary investigation of the case set on 18 May 2004. Dee failed to
appear. The case was again set for preliminary investigation on several dates but Dee failed to appear in all of
them. Each time the case was reset, petitioners asked that the case be declared submitted for resolution.

On 29 July 2004, Villordon declared the case submitted for resolution.

On 5 November 2004, Dee filed a motion to reopen the case and attached his Counter-Affidavit. Assistant City
Prosecutor Rogelio Velasco, Villordons Division Chief, approved the motion on 8 December 2004. Villordon
then called the parties to a hearing on 28 December 2004. At the hearing, Dee failed to appear but petitioners
were present and signed the minutes of the hearing confirming that they would appear and submit their ReplyAffidavit on 18 January 2005. Another hearing was also scheduled on 3 February 2005. On both dates, Dee
failed to appear and petitioners did not submit their Reply-Affidavit.

On 22 March 2005, petitioners filed a proceeding for grievance/request for assistance with the Office of the
Ombudsman (OMB). After several follow-ups for the early resolution of the case without receiving any action
on the matter, petitioners later filed a case for violation of Section 3(f)6 of Republic Act No. 30197 against
Villordon with the OMB.8 On 31 July 2007, the OMB dismissed the case.

Meanwhile, on 19 September 2005, petitioners filed a petition for mandamus9 against Villordon with the
Regional Trial Court (RTC) of Quezon City, Branch 105. Petitioners prayed that Villordon be ordered to resolve
the criminal complaint and pay petitioners (1) moral damages in the amount of P25,000 each; (2) exemplary
damages in the amount of P25,000; (3) attorneys fees in the amount of P10,000, plus P2,000 per court
appearance; and (4) cost of suit.10

In an Order dated 5 January 2006, the RTC dismissed the case for lack of merit. The RTC explained that
petitioners failed to exhaust available administrative remedies before resorting to the court. The RTC stated that
petitioners should have first referred the matter to the Chief City Prosecutor, being Villordons superior, to

correct Villordons error, if any. The RTC added that petitioners filed an administrative charge against Villordon
with the OMB for neglect of duty without waiting for the final determination of the case.11 The RTC explained
further:

While the rule on exhaustion of administrative remedies is not an iron clad rule, the circumstances
availing in this case does not categorized as an exception. The pending case for Estafa and violation of
Article 116 of the Labor Code before the respondent, assuming they raise only legal questions, will not
justify the petitioners to compel the former to make an immediate resolution of the same. As the record
of preliminary investigation will show, a Motion to Re-open Case was granted as per notation of his
Division Chief and was scheduled for preliminary investigation on 18 January 2005 and 3 February
2005, respectively, which the petitioners themselves conformed with. On [the] 18 January 2005 hearing,
petitioners appeared and signed the minutes giving [chance] for the last time to Eduardo Dee, Sr. to
show up on the next hearing which was 3 February 2005. However, came the 3 February 2005 hearing,
none of the parties appeared. This development has led the respondent to wait for the petitioners to file
any pleading on account of the Counter-Affidavit filed by Eduardo Dee, Sr.[,] a copy of which was
furnished the petitioners. As respondent reasoned out, he waited for a move from the petitioners to
enable him to dispose [of] the cases accordingly. Until and after the case is submitted for resolution, any
motion asking for immediate resolution to that sort is still unavailing. Thus, from the foregoing
circumstances, the petitioners have not shown [any] legal right to compel the respondent to perform the
relief they are suing for.

WHEREFORE, in the light of the foregoing considerations, the petition is DISMISSED for lack of
merit.

SO ORDERED.12

Petitioners filed a motion for reconsideration which the RTC denied for lack of merit in an Order dated 30 May
2006.

Hence, this petition.

The Issue
The main issue is whether petitioners are entitled to the extraordinary writ of mandamus.

The Courts Ruling

The petition lacks merit.
Petitioners submit that the petition for mandamus was not prematurely filed with the RTC. Petitioners insist that
under the Rules of Court it is the assistant city prosecutors function as investigating prosecutor in a preliminary
investigation to make his resolution, while it is the chief city prosecutors function to either approve or
disapprove the same. The chief city prosecutor then will get the chance to correct the errors committed by the
investigating prosecutor only after the latters resolution is submitted to him. In the present case, Villordon, as
the investigating prosecutor, has not yet made any resolution. Thus, petitioners assert that Villordon committed
grave abuse of discretion by unreasonably refusing to file an informationdespite the fact that the evidence
clearly warrants such action.
On the other hand, respondent Villordon maintains that mandamus is a premature remedy since the case was not
yet submitted for resolution when petitioners filed an action with the RTC. Villordon contends that after the
hearing on 3 February 2005 which none of the parties attended, he was left hanging as to whether the case
should be submitted for resolution. Petitioners failed to submit a Reply-Affidavit which should have rebutted
the Counter-Affidavit filed by Dee. Villordon states that petitioners opted to just engage in forum-shopping and
filed several cases against him in the RTC and the OMB.

Sections 1 and 2 of Rule 112 of the Revised Rules of Criminal Procedure state:

Section 1. Preliminary investigation defined; when required. 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. x x
x

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

(a) Provincial or City Prosecutors and their assistants; x x x

A preliminary investigation is conducted before an accused is placed on trial to secure the innocent against
hasty, malicious, and oppressive prosecution; to protect him from an open and public accusation of a crime, as
well as from the trouble, expenses, and anxiety of a public trial. It is also intended to protect the State from
having to conduct useless and expensive trials. Thus, a preliminary investigation is not a mere formal or
technical right but is a substantive right.13

The function of determining whether there is sufficient ground for the filing of the information is executive in
nature and rests with the prosecutor. It is the prosecutor alone who has the quasi-judicial discretion to determine
whether or not a criminal case should be filed in court.

In the present case, petitioners filed a criminal complaint against Dee with the Office of the City Prosecutor.
After several hearings where Dee did not appear, Villordon declared the case submitted for resolution. After
three months, Dee showed up and filed a motion to reopen the case and simultaneously submitted his counteraffidavit. Villordons superior approved the motion. Thereafter, two hearings were scheduled on different dates.
On the first hearing, Dee did not appear but petitioners were present. Villordon then directed petitioners to file
their reply-affidavit on the next hearing to controvert the counter-affidavit submitted by Dee. However, on the
second hearing, Dee and petitioners failed to appear. Since then, no other action was taken on the matter. Due to
the long delay, petitioners filed an anti-graft and corruption case against Villordon with the OMB and a petition
for mandamus with the RTC. The OMB dismissed the case and the RTC denied the petition. Petitioners now
seek that we reverse the RTCs decision and grant the extraordinary writ of mandamus to compel Villordon to
resolve the preliminary investigation and file a criminal information against Dee.

Section 3, Rule 65 of the Rules of Court states:

Sec. 3. Petition for Mandamus. When any tribunal, corporation, board, officer or person unlawfully
neglects the performance of an act which the law specifically enjoins as a duty resulting from an office,
trust, or station, or unlawfully excludes another from the use and enjoyment of a right or office to which
such other is entitled, and there is no other plain, speedy and adequate remedy in the ordinary course of
law, the person aggrieved thereby may file a verified petition in the proper court, alleging the facts with
certainty and praying that judgment be rendered commanding the respondent, immediately or at some
other time to be specified by the court, to do the act required to be done to protect the rights of the
petitioner, and to pay the damages sustained by the petitioner by reason of the wrongful acts of the
respondent. x x x

The provision clearly defines that mandamus will lie if (1) any tribunal, corporation, board, officer, or person
unlawfully neglects the performance of an act which the law enjoins as a duty resulting from an office, trust or
station; or unlawfully excludes another from the use and enjoyment of a right or office to which such other is
entitled; and (2) there is no plain, speedy and adequate remedy in the ordinary course of law other than the
remedy of mandamus being invoked.

In the present case, petitioners insist that mandamus is proper since Villordon committed grave abuse of
discretion by unreasonably refusing to file an information despite the fact that the evidence indicates otherwise.

We disagree with petitioners. As mentioned earlier, the matter of deciding who to prosecute is a prerogative of
the prosecutor. In Hipos v. Judge Bay,14 we held that the remedy of mandamus, as an extraordinary writ, lies
only to compel an officer to perform a ministerial duty, not a discretionary one. Mandamus will not issue to
control the exercise of discretion by a public officer where the law imposes upon him the duty to exercise his
judgment in reference to any manner in which he is required to act, because it is his judgment that is to be
exercised and not that of the court. The only time the discretion of the prosecutor will stand review by
mandamus is when the prosecutor gravely abuses his discretion.15

Here, due to the non-appearance of Dee on several hearings and the non-submission of the reply-affidavit by
petitioners, Villordon cannot be faulted if he is still not convinced that a criminal information should be filed
against Dee. Villordon may need to consider more evidence material to the complaint and is giving both parties
the chance to submit their supporting documents.

Also, the assertion of petitioners that the evidence against Dee is strong, amounting to grave abuse of discretion
on Villordons part in not filing the criminal information, has not been clearly established. The records show that
aside from petitioners bare declarations, no other proof was submitted.

Moreover, petitioners were not able to sufficiently demonstrate that they had no other plain, speedy and
adequate remedy in order to be entitled to mandamus. A more expeditious and effective recourse could have
been simply to submit their reply-affidavit in order for Villordon to make the proper determination whether
there was sufficient ground to hold Dee for trial. Instead, petitioners resorted to filing cases in different fora like
the OMB and the RTC to compel Villordon to file the criminal information against Dee immediately.

In sum, since the institution of a criminal action involves the exercise of sound discretion by the prosecutor and
there being other plain, speedy and adequate remedies available to petitioners, the resort to the extraordinary
writ of mandamus must fail.
WHEREFORE, we DENY the petition. We AFFIRM the Orders dated 5 January 2006 and 30 May 2006 of
the Regional Trial Court of Quezon City, Branch 105, in Civil Case No.Q-05-56367.

SO ORDERED.

FIRST DIVISION

MACA-ANGCOS ALAWIYA G.R. No. 164170

y ABDUL, ISAGANI ABDUL
y SIACOR, and SARAH Present:
LANGCO y ANGLI,
Petitioners, PUNO, C.J., Chairperson,
CARPIO,
-versus- CORONA,
LEONARDO-DE CASTRO, and
COURT OF APPEALS, BERSAMIN, JJ.
SECRETARY OF JUSTICE
SIMEON A. DATUMANONG,
P/C INSP. MICHAEL ANGELO
BERNARDO MARTIN, P/INSP.
ALLANJING ESTRADA
MEDINA, PO3 ARNOLD RAMOS
ASIS, PO2 PEDRO SANTOS
GUTIERREZ, PO2 IGNACIO
DE PAZ, and PO2 ANTONIO Promulgated:
SEBASTIAN BERIDA, JR.,
Respondents. April 16, 2009
x-----------------------------------------------------------------------------------------x
DECISION

CARPIO, J.:
The Case

Before the Court is a petition for review [1] assailing the 4 February 2004 Decision [2] and 25 June 2004
Resolution[3] of the Court of Appeals in CA-G.R. SP No. 76345. The Court of Appeals dismissed the petition for
certiorari filed by petitioners Maca-Angcos Alawiya y Abdul, Isagani Abdul y Siacor, and Sarah Langco y
Angli.
The Facts
On 18 September 2001, petitioners executed sworn statements[4] before the General Assignment Section of the
Western Police District in United Nations Avenue, Manila, charging accused P/C Insp. Michael Angelo
Bernardo Martin, P/Insp. Allanjing Estrada Medina, PO3 Arnold Ramos Asis, PO2 Pedro Santos Gutierrez, PO2
Ignacio De Paz and PO2 Antonio Sebastian Berida, Jr., who were all policemen assigned at that time at the
Northern Police District, with kidnapping for ransom.

The sworn-statements of petitioners commonly alleged that at about 10:00 in the morning of 11 September
2001, while petitioners were cruising on board a vehicle along United Nations Avenue, a blue Toyota Sedan
bumped their vehicle from behind; that when they went out of their vehicle to assess the damage, several armed
men alighted from the Toyota Sedan, poked guns at, blindfolded, and forced them to ride in the Toyota Sedan;
that they were brought to an office where P10,000,000 and two vehicles were demanded from them in exchange
for their freedom; that, after haggling, the amount was reduced to P700,000 plus the two vehicles; that the
money and vehicles were delivered in the late evening of 11 September 2001; that they were released in the
early morning of 12 September 2001 in Quiapo after they handed the Deed of Sale and registration papers of the
two vehicles.
After the initial investigation by the Western Police District, the case was reported to the Philippine National
Police Intelligence Group in Camp Crame, where a lateral coordination was made with the Philippine National
Police-National Capital Regional Police Office Regional Intelligence and Investigation Division (PNP-NCRRID) for the identification, arrest and filing of appropriate charges against the accused. After its own
investigation, the PNP-NCR-RID recommended that accused be charged with violation of Article 267 of the
Revised Penal Code,[5] as amended by Republic Act No. 7659.
State Prosecutor Emmanuel Y. Velasco (State Prosecutor Velasco), who conducted the preliminary
investigation, issued a Resolution[6] dated 14 January 2002, recommending that the accused be indicted for the
crime of kidnapping for ransom. The Resolution was endorsed for approval by Assistant Chief State Prosecutor
Nilo C. Mariano and approved by Chief State Prosecutor Jovencito R. Zuo.
On 24 January 2002, State Prosecutor Velasco filed with the Regional Trial Court of Manila, Branch 41, [7] an
Information for Kidnapping for Ransom against the accused with no bail recommended. The Information,
docketed as Criminal Case No. 02198832, reads as follows:
That on September 11, 2001 at about 10:00 AM along United Nations Avenue, Manila and within
the jurisdiction of this Honorable Court, the above-named Accused, who are all police officers,
conspiring, confederating and mutually helping one another and grouping themselves together, did
then and there by force and intimidation, and by the use of high-powered firearms, willfully,
unlawfully and feloniously take, carry away and deprive MACA-ANGCOS ALAWIYA,
ISAGANI ABDUL and ZARAH LANGCO of their liberty against their will for the purpose of
extorting ransom as in fact a demand for ransom was made as a condition for their release
amounting to TEN MILLION PESOS (PHP10,000,000.00) which amount was later reduced to
SEVEN HUNDRED THOUSAND (PHP700,000.00) plus two vehicles consisting of TOYOTA
FX and MITSUBISHI ADVENTURE to the damage and prejudice of MACA-ANGCOS
ALAWIYA, ISAGANI ABDUL and SARAH LANGCO in said amount and such other amounts
as may be awarded to them under the provisions of the Civil Code.
CONTRARY TO LAW.[8]

On 28 January 2002, the trial court, upon motion by the prosecution, issued a Hold Departure Order against the
accused.[9] On even date, the trial court issued a Warrant of Arrest against all the accused.[10]
Meanwhile, on 8 February 2002, the accused filed a petition for review of the Resolution of State Prosecutor
Velasco with the Office of the Secretary of Justice.
On 18 February 2002, the accused moved for the quashal of the Information on the ground that the officer who
filed the Information has no authority do so.[11]
In an Order[12] dated 27 February 2002, the trial court denied the motion to quash on the ground that under the
ruling in People v. Mapalao,[13] an accused who is at large is not entitled to bail or other relief. The trial court
also held that the jurisdiction and power of the Ombudsman under Section 15(1) of Republic Act No. 6770 (RA
6770),[14] as well as Administrative Order No. 8 of the Office of the Ombudsman, are not exclusive but shared or
concurrent with the regular prosecutors. Thus, the authority of the Department of Justice to investigate, file the
information and prosecute the case could no longer be questioned.
In a Resolution[15] promulgated on 24 September 2002, then Secretary of Justice Hernando B. Perez reversed the
ruling of State Prosecutor Velasco and ordered the latter to cause the withdrawal or dismissal of the Information
for kidnapping for ransom. The Secretary of Justice ruled that there was no prior approval by the Office of the
Ombudsman before the Information for kidnapping was filed with the trial court. He also found that the incident
complained of was a bungled buy-bust operation, not kidnapping for ransom.
On 11 October 2002, petitioners filed a Motion for Reconsideration, which was denied by then Secretary of
Justice Simeon A. Datumanong in a Resolution promulgated on 17 February 2003.[16]
Petitioners filed a petition for certiorari with the Court of Appeals, seeking the nullification of the Secretary of
Justices ruling for having been rendered in grave abuse of discretion amounting to lack or excess of jurisdiction.
The Court of Appeals rendered a Decision of 4 February 2004 dismissing the petition for certiorari. The Court
of Appeals denied the petitioners motion for reconsideration in a Resolution of 25 June 2004.
Hence, this petition.
The Ruling of the Court of Appeals
The Court of Appeals sustained the finding of the Secretary of Justice that the incident complained of was a
bungled buy-bust operation, contrary to the finding of State Prosecutor Velasco, that it was a kidnapping for
ransom.
The Court of Appeals gave credence to the accuseds documentary evidence which supported their claim that the
incident was a botched buy-bust operation. The Court of Appeals specifically noted the Sinumpaang Salaysay of

Cesar Landayan (Landayan), who was driving a taxi at the time of the incident and was apprehended together
with petitioners. TheSinumpaang Salaysay categorically stated that he and petitioners were released from
accuseds custody at about 12:50 in the afternoon of the same day, 11 September 2001. Thus, Cesars statement
refuted the complaint of petitioners that they were freed only in the morning of 12 September 2001 after a payoff of P700,000 in casino chips and two vehicles.The Court of Appeals stressed that Landayans Sinumpaang
Salaysay was given on 14 September 2001, prior to petitioners complaint for kidnapping for ransom which was
filed on 18 September 2001 before the Western Police District. Having been executed prior to the filing of the
complaint for kidnapping for ransom by petitioners, CesarsSinumpaaang Salaysay could not be discredited as a
cover-up evidence.
The Court of Appeals upheld the Secretary of Justices ruling that prior approval by the Office of the
Ombudsman for the Military was needed for the filing of the Information before the RTC, pursuant to OMBDOJ Joint Circular No. 95-001.[17] The Court of Appeals further sustained the finding that there were sufficient
evidence that the offense charged against accused was committed in relation to their office and that the accused
were all acting in the discharge of their functions as policemen.

The Issues
The issues in this case are:
1.
Whether the prior approval by the Office of the Ombudsman for the Military is required for
the investigation and prosecution of the instant case against the accused;
2.
Whether the reversal by the Secretary of Justice of the resolution of State Prosecutor
Velasco amounted to an executive acquittal;
3.
Whether the accused policemen can seek any relief (via a motion to quash the information)
from the trial court when they had not been arrested yet; and

4.
ransom.

Whether there was probable cause against the accused for the crime of kidnapping for

The Ruling of this Court

On the prior approval by the Ombudsman for the investigation and prosecution of the case against the accused
policemen

The Office of the Solicitor General (OSG), which is representing the Secretary of Justice, agrees with
petitioners that prior approval by the Ombudsman is not required for the investigation and prosecution of the
criminal case against the accused policemen. The OSG correctly cites the case of Honasan II v. The Panel of
Investigating Prosecutors of the Department of Justice,[18] where the Court held that the power of the
Ombudsman to investigate offenses involving public officers or employees is not exclusive but is concurrent
with other similarly authorized agencies of the government such as the provincial, city and state prosecutors. In
view of the foregoing, both the Court of Appeals and the Secretary of Justice clearly erred in ruling that prior
approval by the Ombudsman is required for the investigation and prosecution of the criminal case against the
accused policemen.
On the reversal by the Secretary of Justice
of the resolution of State Prosecutor Velasco
Settled is the rule that the Secretary of Justice retains the power to review resolutions of his subordinates even
after the information has already been filed in court. [19] InMarcelo v. Court of Appeals,[20] reiterated in Roberts,
Jr. v. Court of Appeals,[21] this Court clarified that nothing in Crespo v. Mogul[22] forecloses the power or
authority of the Secretary of Justice to review resolutions of his subordinates in criminal cases despite an
information already having been filed in court. [23] The nature of the power of control of the Secretary of Justice
over prosecutors was explained in Ledesma v. Court of Appeals[24] in this wise:

Decisions or resolutions of prosecutors are subject to appeal to the Secretary of justice who,
under the Revised Administrative Code, exercises the power of direct control and supervision
over said prosecutors; and who may thus affirm, nullify, reverse or modify their
rulings. (Emphasis supplied)

Contrary to petitioners contention, the Secretary of Justices reversal of the Resolution of State
Prosecutor Velasco did not amount to executive acquittal because the Secretary of Justice was
simply exercising his power to review, which included the power to reverse the ruling of the State
Prosecutor. However, once a complaint or information is filed in court, any disposition of the case
such as its dismissal or its continuation rests on the sound discretion of the court. [25] Trial judges
are not bound by the Secretary of Justices reversal of the prosecutors resolution finding probable
cause. Trial judges are required to make their own assessment of the existence of probable
cause, separately and independently of the evaluation by the Secretary of Justice. [26]

On the motion to quash the information

when the accused had not been arrested yet

People v. Mapalao,[27] as correctly argued by the OSG, does not squarely apply to the present case. In that case,
one of the accused, Rex Magumnang, after arraignment and during the trial, escaped from detention and had not
been apprehended since then. Accordingly, as to him the trial in absentia proceeded and thereafter the judgment
of conviction was promulgated. The Court held that since the accused remained at large,
he should not be afforded the right to appeal from the judgment of conviction unless he voluntarily submits to
the jurisdiction of the court or is otherwise arrested. While at large, the accused cannot seek relief from the court
as he is deemed to have waived the same and he has no standing in court. [28] In Mapalao, the accused escaped
while the trial of the case was on-going, whereas here, the accused have not been served the warrant of arrest
and have not been arraigned. Therefore, Mapalao is definitely not on all fours with the present case.
Furthermore, there is nothing in the Rules governing a motion to quash [29] which requires that the accused
should be under the custody of the law prior to the filing of a motion to quash on the ground that the officer
filing the information had no authority to do so. Custody of the law is not required for the adjudication of reliefs
other than an application for bail. [30] However, while the accused are not yet under the custody of the law, any
question on the jurisdiction over the person of the accused is deemed waived by the accused when he files any
pleading seeking an affirmative relief, except in cases when the accused invokes the special jurisdiction of the
court by impugning such jurisdiction over his person.[31]
At any rate, the accuseds motion to quash, on the ground of lack of authority of the filing officer, would have
never prospered because as discussed earlier, the Ombudsmans power to investigate offenses involving public
officers or employees is not exclusive but is concurrent with other similarly authorized agencies of the
government.
On the existence or non-existence of probable cause
Ordinarily, the determination of probable cause is not lodged with this Court. Its duty in an appropriate case is
confined to the issue of whether the executive or judicial determination, as the case may be, of probable cause
was done without or in excess of jurisdiction or with grave abuse of discretion amounting to want of
jurisdiction.[32]However, in the following exceptional cases, this Court may ultimately resolve the existence or
non-existence of probable cause by examining the records of the preliminary investigation.[33]
a. To afford adequate protection to the constitutional rights of the accused;

b. When necessary for the orderly administration of justice or to avoid oppression or

multiplicity of actions;
c. When there is a prejudicial question which is sub judice;
d. When the acts of the officer are without or in excess of authority;
e. Where the prosecution is under an invalid law, ordinance or regulation;
f. When double jeopardy is clearly apparent;
g. Where the court has no jurisdiction over the offense;
h. Where it is a case of persecution rather than prosecution;
i. Where the charges are manifestly false and motivated by the lust for vengeance;
j. When there is clearly no prima facie case against the accused and a motion to
quash on that ground has been denied; [and]
k. Preliminary injunction has been issued by the Supreme Court to prevent the
threatened unlawful arrest of petitioners.

There is no clear showing that the present case falls under any of the recognized exceptions.
Moreover, as stated earlier, once the information is filed with the trial court, any
disposition of the information rests on the sound discretion of the court. The trial court is
mandated to independently evaluate or assess the existence of probable cause and it may either
agree or disagree with the recommendation of the Secretary of Justice. The trial court is not
bound to adopt the resolution of the Secretary of Justice. [34] Reliance alone on the resolution of
the Secretary of Justice amounts to an abdication of the trial courts duty and jurisdiction to
determine the existence of probable cause.[35]

Considering that the Information has already been filed with the trial court, then the trial court,
upon filing of the appropriate motion by the prosecutor, should be given the opportunity to
perform its duty of evaluating, independently of the Resolution of the Secretary of Justice
recommending the withdrawal of the Information against the accused, the merits of the case and
assess whether probable cause exists to hold the accused for trial for kidnapping for ransom. [36]

WHEREFORE, we REMAND this case to the Regional Trial Court, Branch 41, Manila, to
independently evaluate or assess the merits of the case to determine whetherprobable cause
exists to hold the accused for trial.

SO ORDERED.

EN BANC
LEONORA
BITOON,
FLORENCIO
CANTADA, ANITA MENDOZA, CAEL
GLORIOSO and ATTY. MIRIAM S.
CLORINA-RENTOY,
Complainants,

- versus -

JUDGE LORINDA B. TOLEDO-MUPAS,

MTC-Dasmarias, Cavite,Respondent.

A.M. No. MTJ-05-1598

Present:
Panganiban, C.J.,
Puno,
Quisumbing,
Ynares-Santiago,
Sandoval-Gutierrez,
Carpio,
Austria-Martinez,
Corona,
Carpio Morales,
Callejo, Sr.,
Azcuna,
Tinga,
Chico-Nazario, and
Garcia, JJ.
Promulgated:

January 23, 2006

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
RESOLUTION
QUISUMBING, J.:
Before us is the motion for reconsideration of respondent Judge Lorinda B. Toledo-Mupas who seeks to set
aside our Resolution dated August 9, 2005, finding her administratively liable, for gross ignorance of the law
and for incompetence. In our Resolution, respondent was suspended for three months without salary and
benefits, and also fined in the maximum amount of P40,000, with warning that a repetition of the same or
similar acts subject of the complaint will be dealt with more severely.

Movant/Respondent now argues that the Court erred in ruling that she exceeded her authority in the conduct of
preliminary investigations and failed to observe the elementary procedural rules on bail. She stresses that under
the then provisions of Section 17, Rule 114 of the Rules of Court, [1] she was clothed with authority to act on the
Urgent Petition for Bail filed by accused Eva Malihan in Criminal Cases Nos. 01-1485 to 87 since said cases
were then pending in her sala for preliminary investigation. [2] She also citesBorinaga v. Tamin[3] where this
Court held that when bail is discretionary, the application for it may only be filed in the court where the case is
pending, whether on preliminary investigation, trial or appeal.[4]
She reiterates that it was absolutely wrong for complainants to claim that they were not heard before bail
was granted. She restates the chronology of the events in the subject criminal cases, stressing that during the
hearing on the Urgent Petition for Bail, she ordered complainants to file their comment and a comment was duly
filed. She adds that she even granted them an extension of five days within which to file their comment, over
the objections of the defense counsel. [5] Likewise, the petition for bail was only resolved after both the
complainants and the accused were duly heard, and upon the motion for complainants themselves.
She alleges that the Resolution dated 14 September 2001 [granting bail]clearly recited the facts that
were evaluated based on the evidence presented by both parties and the law upon which the Resolution was
based.[6] Respondent again emphasizes that she granted bail not because the evidence of guilt is not strong, but
because based on the allegations of the parties, it appeared to her that accused Eva Malihan was entitled to bail
as a matter of right.[7]
In addition, respondent charges complainant Atty. Miriam S. Clorina-Rentoy of professional misconduct: first,
for having resorted to the instant administrative complaint as a deliberate and malicious attempt to circumvent
the specific modes of appeal provided by law[8] and, second, for furnishing Judge Dolores L. Espaol, Regional
Trial Court, Branch 90, Dasmarias, Cavite, with a copy of the Motion to Transfer Accused Eva Malihan to the
Provincial Jail or to the Bureau of Jail Management and Penology knowing fully well that the criminal case
was pending in respondents sala.[9] These acts, respondent charges, amount to habitual forum-shopping which

should render Atty. Clorina-Rentoy administratively liable. She asks that complainant Atty. Clorina-Rentoy be
investigated.
Respondent likewise claims that complainants were merely using and abusing the courts of justice and its
processes for their own selfish intentions since after they got what they wanted, they sought from the Regional
Trial Court of Cavite the dismissal of the criminal cases against accused Malihan.
Lastly, respondent begs the compassionate understanding and magnanimity of the Honorable Court for some
leniency regarding her unintentional transgression.[10] She points out that the Municipal Trial Court of
Dasmarias, Cavite, now has approximately 3,000 cases, with an average of 20 cases being received daily and an
average disposition of 160 criminal cases and 100 civil cases per month.
On October 18, 2005, we required the complainants to comment on the motion for reconsideration. However,
despite the lapse of the given period, no comment had been filed. Complainants, however, belatedly filed the
comment on December 22, 2005, which we noted without action on January 17, 2006.
We have carefully studied respondents motion for reconsideration and found, except as to the matter of
penalties, no new and substantial argument to warrant a reconsideration of our resolution. Nonetheless, we take
this opportunity to give clarification to any question that may still linger in respondents mind regarding her
liability.
Respondent correctly asserts that she was clothed with authority to hear accused Eva Malihans application for
bail. Before its amendment, Section 17(b), Rule 114 of the Rules of Court expressly provided that where bail is
discretionary, the application therefore must be filed in the court where the case is pending. Said section
provides,
Section 17. Bail, where filed. (a) Bail in the amount fixed may be filed with the Court where the case is
pending.
(b)
Where the grant of bail is a matter of discretion, or the accused seeks to be released
on recognizance, the application may only be filed in the court where the case is pending,
whether on preliminary investigation, trial or appeal.
However, respondents liability arises not from entertaining the application for bail, but in failing to observe
basic, clear, and well-settled rules on her authority in the conduct of preliminary investigations and on bail.

Respondent being a judge is expected to be conversant with elementary rules of procedure and settled
doctrines. She owes the public and the court the ability to be proficient in law and the duty to maintain
professional competence at all times. She is expected to exhibit more than just a cursory acquaintance with
statutes and procedural rules. Thus, she should have known the well-settled rule that a municipal judge
conducting a preliminary investigation has no legal authority to determine the character of the crime. The only
authority of a municipal judge conducting a preliminary investigation and for admission of the accused to bail is
to determine whether there is probable cause against the accused and if so, whether the evidence of guilt is
strong, but he or she has no authority to reduce or change the crime charged in order to justify the grant of bail
to the accused.[11] In granting bail on the ground that the charge should be only for simple estafa and not for the
capital offense of syndicated estafa, respondent exceeded her authority and violated this basic rule.
Respondent also disregarded an elementary rule of procedure in bail. It was mandatory for respondent to
conduct a formal hearing and to require the presentation and submission of evidence in the petition for bail.
When the grant of bail is discretionary, the prosecution has the burden of showing that the evidence of guilt
against the accused is strong.[12]The determination of whether the evidence of guilt is strong, being a matter of
judicial discretion, remains with the judge. This discretion by the very nature of things, may rightly be exercised
only after the evidence is submitted to the court at the hearing. Since the discretion is directed to the weight of
evidence and since evidence cannot properly be weighed if not duly exhibited or produced before the court, it is
obvious that a proper exercise of judicial discretion requires that the evidence of guilt be submitted to the court,
the petitioner for bail having the right to cross examination and to introduce his own evidence in rebuttal.[13]
In the application for bail of a person charged with a capital offense punishable by death, reclusion perpetua or
life imprisonment, a hearing, whether summary or otherwise in the discretion of the court, must actually be
conducted to determine whether or not the evidence of guilt against the accused is strong. A summary hearing
means such brief and speedy method of receiving and considering evidence of guilt as is practicable and
consistent with the purpose of hearing which is merely to determine the weight of evidence for the purposes of
bail.[14]

Since the determination of whether or not the evidence of guilt against the accused is strong is a matter of
judicial discretion, the judge is mandated to conduct a hearing even in cases where the prosecution chooses to
just file a comment or leave the application for bail to the discretion of the court. [15] The judicial discretion lies
not in the determination of whether or not a hearing should be held, but in the appreciation and evaluation of the
prosecutions evidence of guilt against the accused. A hearing is plainly indispensable before a judge can aptly
be said to be in a position to determine whether the evidence for the prosecution is weak or strong. The mere
filing of a comment from complainants and a reply thereto by accused Malihan, as was done per requirement by
respondent, is insufficient compliance with this basic rule of procedure. [16] Respondents violation becomes more
pernicious considering that she ignored the request of complainants in their motion to resolve the preliminary
investigation that they be allowed to present evidence in opposition to the application for bail.[17]
Respondent claims in the instant motion for reconsideration that a hearing was conducted. She stresses that her
resolution clearly recites the findings of fact based on the evidence presented by both parties. However, our
careful scrutiny of the records of this case shows no proof that the required hearing was conducted. We note that
respondent has even asserted in her comment that no hearing was required.[18]
The importance of the rule requiring the conduct of a hearing in an application for bail cannot be
overemphasized. On its results would depend the right of an accused to provisional liberty as opposed to the
duty of the State to protect its people against dangerous elements. The resolution of the issue affects important
norms in our society: liberty on one hand, and order on the other.[19] To minimize, if not eliminate, error and
arbitrariness in a judges decision, Section 8, Rule 114 of the Rules of Court [20] requires the judge to hear the
parties, then make an intelligent assessment of their evidence.
As regards her complaint against complainant Atty. Clorina-Rentoy for professional misconduct, we find it
appropriate to dismiss the same for lack of merit. While it is true that the first paragraph of the complaint states
the observation that the remedies of certiorari and appeal take time and that the administrative complaint is
being pursued before other available remedies, such statement does not show, except by conjecture, that Atty.
Clorina-Rentoy has filed the instant administrative complaint in malicious disregard of proper court procedures.

Nor does it show, as respondent contends, that Atty. Clorina-Rentoy holds the justice system in contempt.
Notably, nowhere in the complaint was it requested that the respondents order granting bail be nullified. Hence,
administrative sanctions were not at all being resorted to in lieu of the proper procedure as respondent alleges.
In the same manner, respondent has failed to show any prima facie evidence that Atty. Clorina-Rentoy
deserves to be investigated for furnishing Judge Espaol with a copy of the motion to transfer accused Eva
Malihan to the provincial jail. A perusal of the motion itself shows that the motion was addressed to respondents
court and that no relief whatsoever was sought from the RTC of Dasmarias, Cavite. In fact, Atty. ClorinaRentoys name does not even appear on said pleading. [21] Thus, Atty. Clorina-Rentoy cannot be held liable for
deliberate forum-shopping or abuse of court processes.
We do not find it here necessary to make a disquisition on respondents assertion that the other
complainants have abused the courts. Suffice it to say that courts are created to serve the people, to provide
effective avenues where they may go for the redress of their grievances or the protection or enforcement of their
rights. That complainants have later withdrawn from the Regional Trial Court of Cavite the criminal cases they
have filed against accused Eva Malihan is not per se contemptible nor does it show that they have maliciously
abused court processes.
Now on the matter of penalties. In light of respondents sincere plea for compassion from the Court, we
take a second look on the penalty imposed.
While respondent was previously fined in the amount of P21,000 in Espaol v. Judge Mupas,[22] and
recently suspended for three months in our Resolution of June 8, 2005, in Loss of Court Exhibits at MTCDasmarias, Cavite,[23] we note that the instant case involves acts committed much earlier than the acts involved
in those two cases. Hence, although her violation remains inexcusable, respondent is not an incorrigible thirdtime offender who deserves a penalty that is stiffer than that last imposed. We likewise consider that respondent
did not act with malice, bad faith or corrupt motives and that there is here an absence of any serious damage to
the complainants. Thus, the penalty of three months suspension without salaries and benefits with the additional
penalty of fine in the maximum amount of P40,000 appears too severe. We therefore modify the same and

remove the monetary component of P40,000 fine, but give respondent a stern warning that the commission of
the same, or similar acts will be dealt with more severely, even by dismissal if warranted.
WHEREFORE, the motion for reconsideration dated September 2, 2005, filed by respondent Judge
Lorinda B. Toledo-Mupas is PARTIALLY GRANTED. The Courts Resolution of August 9, 2005,
is MODIFIED. The penalty of fine in the amount of FORTY THOUSAND (P40,000) PESOS imposed on her
(in addition to the three months suspension without salaries and benefits) is DELETED. She is, however,
sternly warned that a repetition of the same or similar acts will be dealt with more severely. After she has served
the period of suspension, she should RETURN to her post promptly.
SO ORDERED.

THIRD DIVISION

GLORIA PILAR S. AGUIRRE,

G. R. No. 170723

Petitioner,

Present:

- versus -

SECRETARY
OF
THE
DEPARTMENT
OF
JUSTICE,
MICHELINA
S.
AGUIRREOLONDRIZ, PEDRO B. AGUIRRE,
DR. JUVIDO AGATEP and DR.
MARISSA B. PASCUAL,

YNARES-SANTIAGO,
Chairperson,
AUSTRIA-MARTINEZ,
CORONA,*
CHICO-NAZARIO, and
REYES, JJ.

Promulgated:
March 3, 2008

Respondents.

x--------------------------------------------------x
DECISION

CHICO-NAZARIO, J.:

In this petition for review on certiorari[1] under Rule 45 of the Rules of Court, as amended, petitioner
Gloria Pilar S. Aguirre (Gloria Aguirre) seeks the reversal of the 21 July 2005 Decision[2] and 5 December
2005 Resolution,[3] both of the Court of Appeals in CA-G.R. SP No. 88370, entitled Gloria Pilar S. Aguirre v.
Secretary of the Department of Justice, Michelina S. Aguirre-Olondriz, Dr. Juvido Agatep, Dra. Marissa B.
Pascual, Pedro B. Aguirre and John and Jane Does.
The Court of Appeals found no grave abuse of discretion on the part of the Secretary of the Department
of Justice (DOJ) when the latter issued the twin resolutions dated11 February 2004 [4] and 12 November 2004,
[5]
respectively, which in turn affirmed the 8 January 2003 Resolution[6] of the Office of the City Prosecutor
(OCP) of Quezon City.

The Assistant City Prosecutor for the OCP of Quezon City recommended the dismissal of the criminal
complaint, docketed as I.S. No. 02-12466, for violation of Articles 172 (Falsification by Private Individuals and
Use of Falsified Documents) and 262 (Mutilation), both of the Revised Penal Code, in relation to Republic Act
No. 7610, otherwise known as Child Abuse, Exploitation and Discrimination Act, for insufficiency of evidence.
The case stemmed from a complaint filed by petitioner Gloria Aguirre against respondents Pedro B.
Aguirre (Pedro Aguirre), Michelina S. Aguirre-Olondriz (Olondriz), Dr. Juvido Agatep (Dr. Agatep), Dr.
Marissa B. Pascual (Dr. Pascual) and several John/Jane Does for falsification, mutilation and child abuse.
The antecedents of the present petition are:
Laureano Larry Aguirre[7] used to be a charge of the Heart of Mary Villa, a child caring agency run by
the Good Shepherd Sisters and licensed by the Department of Social Work and Development
(DSWD). Sometime in 1978, respondent Pedro Aguirre; the latters spouse, Lourdes S. Aguirre (Lourdes
Aguirre); and their four daughters, who included petitioner Gloria Aguirre and respondent Olondriz, came to
know Larry, who was then just over a year old. The Aguirres would have Larry spend a few days at their home
and then return him to the orphanage thereafter. In June 1980, Larry, then two years and nine months of age,
formally became the ward of respondent Pedro Aguirre and his spouse Lourdes Aguirre by virtue of an Affidavit
of Consent to Legal Guardianship executed in their favor by Sister Mary Concepta Bellosillo, Superior of the
Heart of Mary Villa. On 19 June 1986, the Aguirre spouses guardianship of Larry was legalized when the
Regional Trial Court (RTC), Branch 3 of Balanga, Bataan, duly appointed them as joint co-guardians over the
person and property of Larry.
As Larry was growing up, the Aguirre spouses and their children noticed that his developmental
milestones were remarkably delayed. His cognitive and physical growth did not appear normal in that at age 3
to 4 years, Larry could only crawl on his tummy like a frog x x x; [8] he did not utter his first word until he was
three years of age; did not speak in sentences until his sixth year; and only learned to stand up and walk after he
turned five years old. At age six, the Aguirre spouses first enrolled Larry at the Colegio de San
Agustin, Dasmarias Village, but the child experienced significant learning difficulties there. In 1989, at age
eleven, Larry was taken to specialists for neurological and psychological evaluations. The psychological
evaluation[9] done on Larry revealed the latter to be suffering from a mild mental deficiency.[10] Consequent
thereto, the Aguirre spouses transferred Larry to St. John Ma. Vianney, an educational institution for special
children.
In November of 2001, respondent Dr. Agatep, a urologist/surgeon, was approached concerning the
intention to have Larry, then 24 years of age, vasectomized. Prior to performing the procedure on the intended
patient, respondent Dr. Agatep required that Larry be evaluated by a psychiatrist in order to confirm and
validate whether or not the former could validly give his consent to the medical procedure on account of his
mental deficiency.

In view of the required psychiatric clearance, Larry was brought to respondent Dr. Pascual, a
psychiatrist, for evaluation. In a psychiatric report dated 21 January 2002, respondent Dr. Pascual made the
following recommendation:
[T]he responsibility of decision making may be given to his parent or guardian.[11]

the full text of which reads

PSYCHIATRY REPORT
21 January 2002
GENERAL DATA
LAUREANO AGUIRRE, 24 years old, male, high school graduate of St. John [Marie Vianney],
was referred for psychiatric evaluation to determine competency to give consent for vasectomy.
CLINICAL SUMMARY
Larry was adopted at age 3 from an orphanage and prenatal history is not known to the adoptive
family except that abortion was attempted. Developmental milestones were noted to be
delayed.He started to walk and speak in single word at around age 5. He was enrolled in Colegio
de San Agustin at age 6 where he showed significant learning difficulties that he had to repeat
1st and 4th grades. A consult was done in 1989 when he was 11 years old. Neurological findings
and EEG results were not normal and he was given Tecretol and Encephabol by his
neurologist.Psychological evaluation revealed mild to moderate mental retardation, special
education training was advised and thus, he was transferred to St. John Marie Vianney. He
finished his elementary and secondary education in the said school. He was later enrolled in a
vocational course at Don Bosco which he was unable to continue. There has been no reported
behavioral problems in school and he gets along relatively well with his teachers and some of his
classmates.
Larry grew up with a very supportive adoptive family. He is the youngest in the family of four
sisters. Currently, his adoptive parents are already old and have medical problem and thus, they
could no longer monitor and take care of him like before. His adoptive mother has Bipolar Mood
Disorder and used to physically maltreat him. A year ago, he had an episode of dizziness,
vomiting and headaches after he was hit by his adoptive mother. Consult was done
in Makati Medical Center and several tests were done, results of which were consistent with his
developmental problem. There was no evidence of acute insults. The family subsequently
decided that he should stay with one of his sisters to avoid similar incident and the possibility
that he would retaliate although he has never hurt anybody. There has been no episode of violent
outburst or aggressive behavior. He would often keep to himself when sad, angry or frustrated.
He is currently employed in the company of his sister and given assignment to do some
photocopying, usually in the mornings. He enjoys playing billiards and basketball with his
nephews and, he spends most of his leisure time watching TV and listening to music. He could
perform activities of daily living without assistance except that he still needs supervision in

taking a bath. He cannot prepare his own meal and never allowed to go out and run errands
alone. He does not have friends and it is only his adoptive family whom he has significant
relationships. He claims that he once had a girlfriend when he was in high school who was more
like a best friend to him. He never had sexual relations. He has learned to smoke and drink
alcohol few years ago through his cousins and the drivers. There is no history of abuse of alcohol
or any prohibited substances.
MEDICAL STATUS EXAMINATION
The applicant was appropriately dressed. He was cooperative and he had intermittent eye
contact. Speech was spontaneous, soft, and relevant. He responded to questions in single words
or simple sentences. He was anxious specially at the start of the interview, with full affect
appropriate to mood and thought content. There was no apparent thought or perceptual
disturbance. No suicidal/homicidal thoughts elicited. He was oriented to time, place and
person. He has intact remote and recent memory. He could do simple calculation. He could write
his name and read simple words. His human figure was comparable to a 7-8 year old. He
demonstrated fair judgment and poor insight. He had fair impulse control.
PSYCHOLOGICAL TESTS
Psychological tests done on March 6, 1990 (Dr. Lourdes Ledesma) and on August 4, 2000 (Dr.
Ma. Teresa Gustilo-Villaosor) consistently revealed mild to moderate mental deficiency.
SIGNIFICANT LABORATORY EXAMS RESULTS
CT scan done 09 January 2001 showed nonspecific right deep parietal subcortical malacia. No
localized mass lesion in the brain.
MRI done on 10 January 2001 showed bilateral parietal x x x volume loss, encephalomalacia,
gliosis and ulegyria consistent with sequela of postnatal or neonatal infarcts. Ex-vacuo dilatation
of the atria of lateral ventricles associated thinned posterior half of the corpus callosum.
ASSESSMENT AND RECOMMENDATION
Axis I None
Axis II Mental Retardation, mild to moderate type
Axis III None
Axis IV None at present
Axis V Current GAF = 50-60
Larrys mental deficiency could be associated with possible perinatal insults, which is
consistent with the neuroimaging findings. Mental retardation associated with neurological
problems usually has poorer prognosis. Larry is very much dependent on his family for his
needs, adaptive functioning, direction and in making major life decisions. At his capacity, he
may never understand the nature, the foreseeable risks and benefits, and consequences of the
procedure (vasectomy) that his family wants for his protection. Thus, the responsibility of
decision making may be given to his parent or guardian.

Marissa B. Pascual, M.D.

Psychiatrist[12]

Considering the above recommendation, respondent Pedro Aguirres written consent was deemed
sufficient in order to proceed with the conduct of the vasectomy. Hence, on 31 January 2002, respondent Dr.
Agatep performed a bilateral vasectomy on Larry.
On 11 June 2002, petitioner Gloria Aguirre, respondent Pedro Aguirres eldest child, instituted a criminal
complaint for the violation of the Revised Penal Code, particularly Articles 172 and 262, both in relation to
Republic Act No. 7610 against respondents Pedro Aguirre, Olondriz, Dr. Agatep, Dr. Pascual and several
John/Jane Does before the Office of the City Prosecutor of Quezon City.
The Complaint Affidavit,[13] docketed as I.S. No. 02-12466, contained the following allegations:
2. x x x Dr. Agatep and Dra. Pascual were (sic) medical practitioners specializing in
urology and psychiatry respectively; while respondent Pedro B. Aguirre is my father; Michelina
S. Aguirre-Olondriz is my sister, and the victim Laureano Larry Aguirre xxx is my common law
brother. JOHN and JANE DOES were the persons who, acting upon the apparent instructions of
respondents Michelina Aguirre-Olondriz and/or Pedro B. Aguirre, actually scouted, prospected,
facilitated, solicited and/or procured the medical services of respondents Dra. Pascual and Dr.
Agatep vis--vis the intended mutilation via bilateral vasectomy of my common law brother Larry
Aguirre subject hereof.
xxxx
4. Sometime in March 2002, however, the Heart of Mary Villa of the Good Shepherd Sisters was
furnished a copy of respondent Dra. Pascuals Psychiatry Report dated 21 January 2004 by the
DSWD, in which my common law brother Larry was falsely and maliciously declared
incompetent and incapable of purportedly giving his own consent to the MUTILATION VIA
BILATERAL VASECTOMY intended to be performed on him by all the respondents.
xxxx
6. Based on the foregoing charade and false pretenses invariably committed by all of the
respondents in conspiracy with each other, on 31 January 2002, my common law brother Larry
Aguirre, although of legal age but conspiratorially caused to be declared by respondents to be
mentally deficient and incompetent to give consent to his BILATERAL VASECTOMY, was then
intentionally, unlawfully, maliciously, feloniously and/or criminally placed thereafter under
surgery for MUTILATION VIA BILATERAL VASECTOMY x x x, EVEN WITHOUT ANY
AUTHORIZATION ORDER from the GUARDIANSHIP COURT, nor personal consent of Larry
Aguirre himself.

In addition to the above, the complaint included therein an allegation that

v. x x x without a PRIOR medical examination, professional interview of nor

verification and consultation with my mother, Lourdes Sabino-Aguirre,
respondent Dra. Pascual baselessly, fraudulently and with obvious intent
to defame and malign her reputation and honor, and worse, that of our
Sabido family, falsely concluded and diagnosed, via her falsified
Psychiatry Report, that my mother Lourdes Sabido-Aguirre purportedly
suffers from BIPOLAR MOOD DISORDER x x x.

To answer petitioner Gloria Aguirres accusations against them, respondents Pedro Aguirre, Olondriz, Dr.
Agatep and Dr. Pascual submitted their respective Counter-Affidavits.
In her defense,[14] respondent Olondriz denied that she prospected, scouted, facilitated, solicited and/or
procured any false statement, mutilated or abused her common-law brother, Larry Aguirre. Further, she
countered that:
3. x x x While I am aware and admit that Larry went through a vasectomy procedure,
there is nothing in the Complaint which explains how the vasectomy amounts to a
mutilation.
xxxx
5. In any case, as I did not perform the vasectomy, I can state with complete confidence
that I did not participate in any way in the alleged mutilation.
6. Neither did I procure or solicit the services of the physician who performed the
vasectomy, Dr. Juvido Agatep x x x. It was my father, Pedro Aguirre, Larrys
guardian, who obtained his services. I merely acted upon his instructions and
accompanied my brother to the physician, respondents Dra. Marissa B. Pascual x
x x.
xxxx
10. Neither does the Complaint explain in what manner the Complainant is authorized or
has any standing to declare that Larrys consent was not obtained. Complainant is
not the guardian or relative of Larry. While she argues that Larrys consent should
have been obtained the Complaint does not dispute the psychiatrists findings
about Larrys inability to give consent.
xxxx
13. x x x the Complaint does not even state what alleged participation was falsified or the
portion of the psychiatric report that allegedly states that someone participated
when in fact that person did not so participate.
xxxx

15. Again, I had no participation in the preparation of the report of Dr. Pascual x x x.
xxxx
17. x x x the Complaint does not dispute that he (Larry) is mentally deficient or
incompetent to give consent.
xxxx
19. x x x I verified that the effect of a vasectomy operation was explained to him (Larry)
by both respondent doctors.
20. x x x I accompanied Larry and obeyed my father on the belief that my father
continues to be the legal guardian of Larry. I know of no one else who asserts to
be his legal guardian x x x.[15]

Alleging the same statement of facts and defenses, respondent Pedro Aguirre argues against his
complicity in the crime of mutilation as charged and asserts that:
5. In any case, as I did not perform the vasectomy, I can state with complete confidence that I did
not participate in any way in the alleged mutilation.[16]
Nevertheless, he maintains that the vasectomy performed on Larry does not in any way amount to mutilation, as
the latters reproductive organ is still completely intact. [17] In any case, respondent Pedro Aguirre explains that
the procedure performed is reversible through another procedure called Vasovasostomy, to wit:
8. I understand that vasectomy is reversible through a procedure called Vasovasostomy. I can
also state with confidence that the procedure enables men who have undergone a
vasectomy to sire a child. Hence, no permanent damage was caused by the procedure.

Respondent Pedro Aguirre challenges the charge of falsification in the complaint, to wit:
14. x x x I did not make it appear that any person participated in any act or proceeding when that
person did not in fact participate x x x.
xxxx
16. x x x I had no participation in the preparation of the report of Dra. Pascual. She arrived at her
report independently, using her own professional judgment x x x.
xxxx

31. What I cannot understand about Petitas Complaint is how Larry is argued to be legally a
child under the definition of one law but nonetheless and simultaneously argued to be
capacitated to give his consent as fully as an adult.[18]

Respondent Pedro Aguirre further clarifies that co-guardianship over Larry had been granted to himself
and his wife, Lourdes Aguirre, way back on 19 June 1986 by the Regional Trial Court, Branch 3 of
Balanga, Bataan. Respondent Pedro Aguirre contends that being one of the legal guardians, consequently,
parental authority over Larry is vested in him. But assuming for the sake of argument that Larry does have the
capacity to make the decision concerning his vasectomy, respondent Pedro Aguirre argues that petitioner Gloria
Aguirre has no legal personality to institute the subject criminal complaint, for only Larry would have the right
to do so.
Just as the two preceding respondents did, respondent Dr. Agatep also disputed the allegations of facts
stated in the Complaint. Adopting the allegations of his co-respondents insofar as they were material to the
charges against him, he vehemently denied failing to inform Larry of the intended procedure. In his counterstatement of facts he averred that:
(b) x x x I scheduled Larry for consultative interview x x x wherein I painstakingly explained
what vasectomy is and the consequences thereof; but finding signs of mental deficiency, x x x I
advised his relatives and his nurse who accompanied him to have Larry examined by a
psychiatrist who could properly determine whether or not Larry x x x can really give his consent,
thus I required them to secure first a psychiatric evaluation and clearance prior to the
contemplated procedure.
(c) On January 21, 2002, I was furnished a copy of a psychiatric report prepared by Dr. Marissa
Pascual x x x. In her said report, Dr. Pascual found Larry to suffer from mental retardation, mild
to moderate type and further stated that at his capacity, he may never understand the nature, the
foreseeable risks and benefits and consequences of the procedure (vasectomy) x x x, thus the
responsibility of decision making may be given to his parent or guardian x x x.
(d) x x x I was likewise furnished a copy of an affidavit executed by Pedro Aguirre stating that he
was the legal guardian of Larry x x x Pedro Aguirre gave his consent to vasectomize Larry x x x.
(e) Only then, specifically January 31, 2002, vasectomy was performed with utmost care and
diligence.[19]
In defense against the charge of falsification and mutilation, respondent Dr. Agatep argued that subject
complaint should be dismissed for the following reasons:
1. The complainant has no legal personality to file this case. As mentioned above, she is only a
common law sister of Larry who has a legal guardian in the person of Pedro Aguirre, one of the
herein respondents x x x.

2. x x x [t]he allegations in the complaint clearly centers on the condition of complainants

mother, Lourdes Aguirre, her reputation, and miserably fails to implicate the degree of
participation of herein respondent. x x x
xxxx
(b) Falsification. x x x I strongly aver that this felony does not apply to me since it clearly gives
reference to co-respondent, Dr. Marissa Pascuals Psychiatry Report, dated January 21, 2002, in
relation with her field of profession, an expert opinion. I do not have any participation in the
preparation of said report, x x x neither did I utilized (sic) the same in any proceedings to the
damage to another. x x x I also deny using a falsified document x x x.
(c) Mutilation. x x x Vasectomy does not in anyway equate to castration and what is touched in
vasectomy is not considered an organ in the context of law and medicine, it is quite remote from
the penis x x x.
(d) Child Abuse. x x x the complaint-affidavit is very vague in specifying the applicability of said
law. It merely avers that Laureano Larry Aguirre is a child, and alleges his father, Pedro Aguirre,
has parental authority over him x x x.[20]

Similarly, respondent Dr. Pascual denied the criminal charges of falsification and mutilation imputed to
her. She stands by the contents of the assailed Psychiatric Report, justifying it thus:
x x x My opinion of Larry Aguirres mental status was based on my own personal observations,
his responses during my interview of him, the results of the two (2) psychological tests
conducted by clinical psychologists, the results of laboratory tests, including a CT Scan and
MRI, and his personal and family history which I obtained from his sister, Michelina AguirreOlondriz x x x.
5. x x x the reference in my report concerning Mrs. Lourdes Aguirre is not a statement of my
opinion of Mrs. Aguirres mental status, x x x. Rather, it is part of the patients personal and family
history as conveyed to me by Mrs. Aguirre-Olondriz.
6. x x x An expression of my opinion, especially of an expert opinion, cannot give rise to a
charge for falsification. A contrary opinion by another expert only means that the experts differ,
and does not necessarily reflect on the truth or falsity of either opinion x x x.
7. x x x I never stated that I examined Mrs. Aguirre, because I never did x x x.
8. I had no participation in the surgery performed on Larry Aguirre except to render an opinion
on his capacity to give informed consent to the vasectomy x x x.
9. Without admitting the merits of the complaint, I submit that complainants are not the proper
persons to subscribe to the same as they are not the offended party, peace officer or other public
officer charged with the enforcement of the law violated x x x.[21]

The Assistant City Prosecutor held that the circumstances attendant to the case did not amount to the
crime of falsification. He held that
[T]he claim of the complainant that the Psychiatric Report was falsified, because consent was not
given by Larry Aguirre to the vasectomy and/or he was not consulted on said operation does not
constitute falsification. It would have been different if it was stated in the report that consent was
obtained from Larry Aguirre or that it was written therein that he was consulted on the
vasectomy, because that would mean that it was made to appear in the report that Larry Aguirre
participated in the act or proceeding by giving his consent or was consulted on the matter when
in truth and in fact, he did not participate. Or if not, the entry would have been an untruthful
statement. But that is not the case. Precisely (sic) the report was made to determine whether
Larry Aguirre could give his consent to his intended vasectomy. Be that as it may, the matter of
Larrys consent having obtained or not may nor be an issue after all, because complainants (sic)
herself alleged that Larrys mental condition is that of a child, who can not give consent. Based
on the foregoing consideration, no falsification can be established under the circumstances.[22]

Even the statement in the Psychiatric Report of respondent Dr. Pascual that Lourdes Aguirre had Bipolar
Mood Disorder cannot be considered falsification since
The report did not state that Lourdes Aguirre was in fact personally interviewed by respondent
Dr. Pascual and that the latter concluded that Lourdes Aguirre has Bipolar Mood Disorder. The
report merely quoted other sources of information with respect to the condition of Lourdes
Aguirre, in the same manner that the fact that Lourdes Aguirre was physically abusing Larry
Aguirre was also not of Dra. Pascual personal knowledge. But the fact that Dra. Pascual cited
finding, which is not of her own personal knowledge in her report does not mean that she
committed falsification in the process. Her sources may be wrong and may affect the veracity of
her report, but for as long as she has not alleged therein that she personally diagnosed Lourdes
Aguirre, which allegation would not then be true, she cannot be charged of falsification.
Therefore, it goes without saying that if the author of the report is not guilty, then with more
reason the other respondents are not liable.[23]

Respecting the charge of mutilation, the Assistant City Prosecutor also held that the facts alleged did not
amount to the crime of mutilation as defined and penalized under Article 262 of the Revised Penal Code, i.e.,
[t]he vasectomy operation did not in any way deprived (sic) Larry of his reproductive organ, which is still very
much part of his physical self. He ratiocinated that:
While the operation renders him the inability (sic) to procreate, the operation is reversible and
therefore, cannot be the permanent damage contemplated under Article 262 of the Revised Penal
Code.[24]

The Assistant City Prosecutor,[25] in a Resolution[26] dated 8 January 2003, found no probable cause to
hold respondents Pedro Aguirre, Olondriz, Dr. Agatep and Dr. Pascual liable for the complaint of falsification

and mutilation, more specifically, the violation of Articles 172 and 262 of the Revised Penal Code, in relation to
Republic Act No. 7610. Accordingly, the Assistant City Prosecutor recommended the dismissal of petitioner
Gloria Aguirres complaint for insufficiency of evidence. The dispositive portion of the resolution reads:
WHEREFORE, it is recommended that the above-entitled case be dismissed for
insufficiency of evidence.[27]

On 18 February 2003, petitioner Gloria Aguirre appealed the foregoing resolution to the Secretary of the
DOJ by means of a Petition for Review.[28]
In a Resolution dated 11 February 2004, Chief State Prosecutor Jovencito R. Zuo, for the Secretary of
the DOJ, dismissed the petition. In resolving said appeal, the Chief State Prosecutor held that:
Under Section 12, in relation to Section 7, of Department Circular No. 70 dated July 3,
2000, the Secretary of Justice may, motu proprio, dismiss outright the petition if there is no
showing of any reversible error in the questioned resolution or finds the same to be patently
without merit.
We carefully examined the petition and its attachments and found no error that would
justify a reversal of the assailed resolution which is in accord with the law and evidenced (sic) on
the matter.[29]

Petitioner Gloria Aguirres Motion for Reconsideration was likewise denied with finality by the DOJ in
another Resolution dated 12 November 2004.
Resolute in her belief, petitioner Gloria Aguirre went to the Court of Appeals by means of a Petition
for Certiorari, Prohibition and Mandamus under Rule 65 of the Rules of Court, as amended.
On 21 July 2005, the Court of Appeals promulgated its Decision dismissing petitioner Gloria Aguirres
recourse for lack of merit.
The fallo of the assailed decision reads:

WHEREFORE, premises considered, the present petition is hereby DENIED DUE

COURSE and accordingly DISMISSED for lack of merit. Consequently, the assailed Resolutions
dated February 11, 2004 and November 12, 2004 of the Secretary of Justice in I.S. No. 02-12466
are hereby AFFIRMED.[30]

Petitioner Gloria Aguirres motion for reconsideration proved futile as it was denied by the appellate
court in a Resolution dated 5 December 2005.
Hence, the present petition filed under Rule 45 of the Rules of Court, as amended, premised on the
following arguments:

I.

THE COURT OF APPEALS COMMITTED SERIOUS, GRAVE AND REVERSIBLE ERRORS

OF LAW WHEN IT CONCLUDED, BASED PURPORTEDLY ON THE INTERNET WHICH
RUNS AMUCK WITH OUR SYSTEM OF THE RULE OF LAW AND THE EVIDENCE ON
RECORD, THAT BILATERAL VASECTOMY IS PURPORTEDLY 100% REVERSIBLE BY A
FUTURE MEDICAL PROCEDURE HENCE NOT AMOUNTING TO MUTILATION, X X X;
AND

xxxx
II.

WORSE, THE COURT OF APPEALS COMMITTED GRAVE, SERIOUS AND REVERSIBLE

ERRORS OF LAW WHEN IT REFUSED TO DIRECT THE INDICTMENT OF THE PRIVATE
RESPONDENTS FOR MUTILATION AND FALSIFICATION DESPITE THE EXISTENCE
OF SUFFICIENT PROBABLE CAUSE THEREFOR X X X.[31]

The foregoing issues notwithstanding, the more proper issue for this Courts consideration is, given the
facts of the case, whether or not the Court of Appeals erred in ruling that the DOJ did not commit grave abuse
of discretion amounting to lack or excess of jurisdiction when the latter affirmed the public prosecutors finding
of lack of probable cause for respondents Pedro Aguirre, Olondriz, Dr. Agatep and Dr. Pascual to stand trial for
the criminal complaints of falsification and mutilation in relation to Republic Act No. 7610.

In ruling that the DOJ did not commit grave abuse of discretion amounting to lack or excess of
jurisdiction, the Court of Appeals explained that:

Evidently, the controversy lies in the permanency of sterilization as a result of a

vasectomy operation, and the chances of restoring fertility with a reversal surgery x x x.
We sustain the DOJ in ruling that the bilateral vasectomy performed on Larry does not
constitute mutilation even if intentionally and purposely done to prevent him from siring a child.
xxxx
Sterilization is to be distinguished from castration: in the latter act the reproductive capacity is
permanently removed or damaged.[32]

It then concluded that:

The matter of legal liability, other than criminal, which private respondents may have
incurred for the alleged absence of a valid consent to the vasectomy performed on Larry, is
certainly beyond the province of this certiorari petition. Out task is confined to the issue of
whether or not the Secretary of Justice and the Office of the City Prosecutor of Quezon City
committed grave abuse of discretion in their determining the existence or absence of probable
cause for filing criminal cases for falsification and mutilation under Articles 172 (2) and 262 of
the Revised Penal Code.[33]

Petitioner Gloria Aguirre, however, contends that the Court of Appeals and the DOJ failed to appreciate
several important facts: 1) that bilateral vasectomy conducted on petitioners brother, Larry Aguirre, was
admitted[34]; 2) that the procedure caused the perpetual destruction of Larrys reproductive organs of generation
or conception;[35] 3) that the bilateral vasectomy was intentional and deliberate to deprive Larry forever of his
reproductive organ and his capacity to procreate; and 4) that respondents, in conspiracy with one another, made
not only one but two (2) untruthful statements, and not mere inaccuracies when they made it appear in the
psychiatry report[36] that a) Larrys consent was obtained or at the very least that the latter was informed of the
intended vasectomy; and b) that Lourdes Aguirre was likewise interviewed and evaluated. Paradoxically,
however, petitioner Gloria Aguirre does not in any way state that she, instead of respondent Pedro Aguirre, has
guardianship over the person of Larry. She only insists that respondents should have obtained Larrys consent
prior to the conduct of the bilateral vasectomy.
In contrast, the Office of the Solicitor General (OSG), for public respondent DOJ, argues that the
conduct of preliminary investigation to determine the existence of probable cause for the purpose of filing (an)
information is the function of the public prosecutor.[37] More importantly, the element[s] of castration or

mutilation of an organ necessary for generation is completely absent as he was not deprived of any organ
necessary for reproduction, much less the destruction of such organ.[38]
Likewise, in support of the decision of the Court of Appeals, respondents Pedro Aguirre and Olondriz
assert that, fundamentally, petitioner Gloria Aguirre has no standing to file the complaint, as she has not shown
any injury to her person or asserted any relationship with Larry other than being his common law sister; further,
that she cannot prosecute the present case, as she has not been authorized by law to file said complaint, not
being the offended party, a peace officer or a public officer charged with the enforcement of the
law. Accordingly, respondents Pedro Aguirre and Olondriz posit that they, together with the other respondents
Dr. Agatep and Dr. Pascual, may not be charged with, prosecuted for and ultimately convicted of: 1) mutilation
x x x since the bilateral vasectomy conducted on Larry does not involve castration or amputation of an organ
necessary for reproduction as the twin elements of the crime of mutilation x x x are absent [39]; and 2)
falsification x x x since the acts allegedly constituting falsification involve matters of medical opinion and not
matters of fact,[40] and that petitioner Gloria Aguirre failed to prove damage to herself or to any other person.
Respondent Dr. Agatep, in the same vein, stresses that vasectomy is not mutilation. He elucidates that
vasectomy is merely the excision of the vas deferens, the duct in testis which transport semen [41]; that it is the
penis and the testis that make up the male reproductive organ and not the vas deferens; and additionally argues
that for the crime of mutilation to be accomplished, Article 262 of the Revised Penal Code necessitates that
there be intentional total or partial deprivation of some essential organ for reproduction.Tubes, seminal ducts,
vas deferens or prostatic urethra not being organs, respondent Dr. Agatep concludes, therefore, that vasectomy
does not correspond to mutilation.
Anent the charge of falsification of a private document, respondent Dr. Agatep asseverates that he never
took part in disclosing any information, data or facts as contained in the contentious Psychiatric Report.
For her part, respondent Dr. Pascual insists that the assailed Psychiatry Report was the result of her
independent exercise of professional judgment. Rightly or wrongly, (she) diagnosed Larry Aguirre to be
incapable of giving consent, based on interviews made by the psychiatrist on Larry Aguirre and persons who
interacted with him.[42] And supposing that said report is flawed, it is, at most, an erroneous medical diagnosis.
The petition has no merit.
Probable cause has been defined as the existence of such facts and circumstances as would excite belief
in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was
guilty of the crime for which he was prosecuted.[43] The term does not mean actual and positive cause nor does it
import absolute certainty.[44] It is merely based on opinion and reasonable belief;[45] that is, the belief that the act
or omission complained of constitutes the offense charged. A finding of probable cause merely binds over the
suspect to stand trial. It is not a pronouncement of guilt.[46]

The executive department of the government is accountable for the prosecution of crimes, its principal
obligation being the faithful execution of the laws of the land. A necessary component of the power to execute
the laws is the right to prosecute their violators,[47] the responsibility of which is thrust upon the DOJ. Hence, the
determination of whether or not probable cause exists to warrant the prosecution in court of an accused is
consigned and entrusted to the DOJ. And by the nature of his office, a public prosecutor is under no compulsion
to file a particular criminal information where he is not convinced that he has evidence to prop up the averments
thereof, or that the evidence at hand points to a different conclusion.
Put simply, public prosecutors under the DOJ have a wide range of discretion, the discretion of whether,
what and whom to charge, the exercise of which depends on a smorgasbord of factors which are best
appreciated by (public) prosecutors.[48] And this Court has consistently adhered to the policy of non-interference
in the conduct of preliminary investigations, and to leave to the investigating prosecutor sufficient latitude of
discretion in the determination of what constitutes sufficient evidence as will establish probable cause for the
filing of an information against the supposed offender.[49]
But this is not to discount the possibility of the commission of abuses on the part of the prosecutor. It is
entirely possible that the investigating prosecutor may erroneously exercise the discretion lodged in him by law.
This, however, does not render his act amenable to correction and annulment by the extraordinary remedy
of certiorari, absent any showing of grave abuse of discretion amounting to excess of jurisdiction.[50]
Prescinding from the above, the courts duty in an appropriate case, therefore, is confined to a
determination of whether the assailed executive determination of probable cause was done without or in excess
of jurisdiction resulting from a grave abuse of discretion. For courts of law to grant the extraordinary writ
of certiorari, so as to justify the reversal of the finding of whether or not there exists probable cause to file an
information, the one seeking the writ must be able to establish that the investigating prosecutor exercised his
power in an arbitrary and despotic manner by reason of passion or personal hostility, and it must be patent and
gross as would amount to an evasion or to a unilateral refusal to perform the duty enjoined or to act in
contemplation of law. Grave abuse of discretion is not enough.[51] Excess of jurisdiction signifies that he had
jurisdiction over the case but has transcended the same or acted without authority.[52]
Applying the foregoing disquisition to the present petition, the reasons of the Assistant City Prosecutor
in dismissing the criminal complaints for falsification and mutilation, as affirmed by the DOJ, is determinative
of whether or not he committed grave abuse of discretion amounting to lack or excess of jurisdiction.
In ruling the way he did that no probable cause for falsification and mutilation exists - the Assistant City
Prosecutor deliberated on the factual and legal milieu of the case.He found that there was no sufficient evidence
to establish a prima facie case for the crimes complained of as defined and punished under Articles 172,
paragraph 2, and 262 of the Revised Penal Code in relation to Republic Act No. 7610, respectively. Concerning
the crime of falsification of a private document, the Assistant City Prosecutor reasoned that the circumstances
attendant to the case did not amount to the crime complained of, that is, the lack of consent by Larry Aguirre

before he was vasectomized; or the fact that the latter was not consulted. The lack of the two preceding
attendant facts do not in any way amount to falsification, absent the contention that it was made to appear in the
assailed report that said consent was obtained. That would have been an untruthful statement. Neither does the
fact that the Psychiatric Report state that Lourdes Aguirre has Bipolar Mood Disorder by the same token
amount to falsification because said report does not put forward that such finding arose after an examination of
the concerned patient.Apropos the charge of mutilation, he reasoned that though the vasectomy rendered Larry
unable to procreate, it was not the permanent damage contemplated under the pertinent provision of the penal
code.
We agree. Grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the DOJ
and the Assistant City Prosecutor was not shown in the present case.
In the present petition, respondents Pedro Aguirre, Olondriz, Dr. Agatep and Dr. Pascual are charged
with violating Articles 172 and 262 of the Revised Penal Code, in relation to Republic Act No. 7610. Article
172, paragraph 2 of the Revised Penal Code, defines the crime of falsification of a private document, viz
Art. 172. Falsification by private individuals and use of falsified documents. The
penalty of prision correccional in its medium and maximum periods and a fine of not more than
5,000 pesos shall be imposed upon:
xxxx
2. Any person who, to the damage of a third party, or with the intent to cause such
damage, shall in any private document commit any of the acts of falsification enumerated in the
next preceding article.

Petitioner Gloria Aguirre charges respondents with falsification of a private document for conspiring with one
another in keeping Larry in the dark about the foregoing (vasectomy) as the same was concealed from him by
the respondents x x x,[53] as well as for falsely concluding and diagnosing Lourdes Aguirre to be suffering from
Bipolar Mood Disorder.
A scrutiny, however, of Article 171 of the Revised Penal Code which defines the acts constitutive of
falsification, that is

Art. 171. x x x shall falsify a document by committing any of the following acts:

1. Counterfeiting or imitating any handwriting, signature, or rubric;

2. Causing it to appear that persons have participated in any act or proceeding when they
did not in fact so participate;

3. Attributing to persons who have participated in an act or proceeding statements other

than those in fact made by them;

4. Making untruthful statements in a narration of facts;

5. Altering true dates;

6. Making any alteration or intercalation in a genuine document which changes its

meaning;

7. Issuing in an authenticated form a document purporting to be a copy of an original

document when no such original exists, or including in such copy a statement contrary to, or
different from, that of the genuine original; or

8. Intercalating any instrument or note relative to the issuance thereof in a protocol,

registry, or official book.

vis--vis the much criticized Psychiatric Report, shows that the acts complained of do not in any manner, by
whatever stretch of the imagination, fall under any of the eight (8) enumerated acts constituting the offense of
falsification.
In order to properly address the issue presented by petitioner Gloria Aguirre, it is necessary that we
discuss the elements of the crime of falsification of private document under the Revised Penal Code, a
crime which all the respondents have been accused of perpetrating. The elements of said crime under paragraph
2 of Article 172 of our penal code are as follows: 1) that the offender committed any acts of falsification, except
those in par. 7, enumerated in Article 171; 2) that the falsification was committed in any private document; and
3) that the falsification caused damage to a third party or at least the falsification was committed with intent to
cause such damage. Under Article 171, paragraph 2, a person may commit falsification of a private document
by causing it to appear in a document that a person or persons participated in an act or proceeding, when such
person or persons did not in fact so participate in the act or proceeding. On the other hand, falsification under
par. 3 of the same article is perpetrated by a person or persons who, participating in an act or proceeding, made

statements in that act or proceeding and the offender, in making a document, attributed to such person or
persons statementsother than those in fact made by such person or persons. And the crime defined under
paragraph 4 thereof is committed when 1) the offender makes in a document statements in a narration of facts;
2) he has a legal obligation to disclose the truth of the facts narrated by him; 3) the facts narrated by the
offender are absolutely false; and 4) the perversion of truth in the narration of facts was made with the wrongful
intent of injuring a third person.
Applying the above-stated elements of the crime to the case at bar, in order that respondent Dr. Pascual,
and the rest acting in conspiracy with her, to have committed the crime of falsification under par. 3 and 4 of
Article 171 of the Revised Penal Code, it is essential that that there be prima facie evidence to show that she
had caused it to appear that Larry gave his consent to be vasectomized or at the very least, that the proposed
medical procedure was explained to Larry. But in the assailed report, no such thing was done. Lest it be
forgotten, the reason for having Larry psychiatrically evaluated was precisely to ascertain whether or not he can
validly consent with impunity to the proposed vasectomy, and not to obtain his consent to it or to oblige
respondent Dr. Pascual to explain to him what the import of the medical procedure was. Further, that Larrys
consent to be vasectomized was not obtained by the psychiatrist was of no moment, because nowhere is it stated
in said report that such assent was obtained. At any rate, petitioner Gloria Aguirre contradicts her very own
allegations when she persists in the contention that Larry has the mental age of a child; hence, he was legally
incapable of validly consenting to the procedure.
In the matter of the supposed incorrect diagnosis of Lourdes Aguirre, with regard to paragraph 2 of
Article 171 of the Revised Penal Code, we quote with approval the succinct statements of the Assistant City
Prosecutor:
[T]he fact that Dra. Pascual cited finding, which is not of her own personal knowledge in her
report does not mean that she committed falsification in the process. Her sources may be wrong
and may affect the veracity of her report, but for as long as she has not alleged therein that she
personally diagnosed Lourdes Aguirre, which allegation would not then be true, she cannot be
charged of falsification. Therefore, it goes without saying that if the author of the report is not
guilty, then with more reason the other respondents are not liable.[54]

As to the charge of mutilation, Art. 262 of the Revised Penal Code defines the crime as
Art. 262. Mutilation. The penalty of reclusion temporal to reclusion perpetua shall be
imposed upon any person who shall intentionally mutilate another by depriving him, either
totally or partially, of some essential organ for reproduction.
Any other intentional mutilation shall be punished by prision mayor in its medium and
maximum periods.

A straightforward scrutiny of the above provision shows that the elements [55] of mutilation under the first
paragraph of Art. 262 of the Revised Penal Code to be 1) that there be a castration, that is, mutilation of organs
necessary for generation; and 2) that the mutilation is caused purposely and deliberately, that is, to deprive the
offended party of some essential organ for reproduction. According to the public prosecutor, the facts alleged
did not amount to the crime of mutilation as defined and penalized above, i.e., [t]he vasectomy operation did not
in any way deprived (sic) Larry of his reproductive organ, which is still very much part of his physical self.
Petitioner Gloria Aguirre, however, would want this Court to make a ruling that bilateral vasectomy constitutes
the crime of mutilation.
This we cannot do, for such an interpretation would be contrary to the intentions of the framers of our
penal code.
A fitting riposte to the issue at hand lies in United States v. Esparcia,[56] in which this Court had the
occasion to shed light on the implication of the term mutilation.Therein we said that:
The sole point which it is desirable to discuss is whether or not the crime committed is
that defined and penalized by article 414 of the Penal Code. The English translation of this article
reads: "Any person who shall intentionally castrate another shall suffer a penalty ranging from
reclusion temporal to reclusion perpetua." The Spanish text, which should govern, uses the word
"castrare," inadequately translated into English as "castrate." The word "capar," which is
synonymous of "castrar," is defined in the Royal Academic Dictionary as the destruction of the
organs of generation or conception. Clearly it is the intention of the law to punish any person
who shall intentionally deprived another of any organ necessary for reproduction. An applicable
construction is that of Viada in the following language:
"At the head of these crimes, according to their order of gravity, is the mutilation known
by the name of 'castration' which consists of the amputation of whatever organ is necessary for
generation. The law could not fail to punish with the utmost severity such a crime, which,
although not destroying life, deprives a person of the means to transmit it. But bear in mind that
according to this article in order for 'castration' to exist, it is indispensable that the 'castration' be
made purposely. The law does not look only to the result but also to the intention of the
act.Consequently, if by reason of an injury or attack, a person is deprived of the organs of
generation, the act, although voluntary, not being intentional to that end, it would not come under
the provisions of this article, but under No. 2 of article 431." (Viada, Codigo Penal, vol. 3, p. 70.
See to same effect, 4 Groizard, Codigo Penal, p. 525.)

Thus, the question is, does vasectomy deprive a man, totally or partially, of some essential organ of
reproduction? We answer in the negative.
In the male sterilization procedure of vasectomy, the tubular passage, called the vas deferens, through
which the sperm (cells) are transported from the testicle to the urethra where they combine with the seminal
fluid to form the ejaculant, is divided and the cut ends merely tied. [57] That part, which is cut, that is, the vas
deferens, is merely a passageway that is part of the duct system of the male reproductive organs. The vas

deferens is not an organ, i.e., a highly organized unit of structure, having a defined function in a multicellular
organism and consisting of a range of tissues. [58] Be that as it may, even assuming arguendo that the tubular
passage can be considered an organ, the cutting of the vas deferens does not divest or deny a man of any
essential organ of reproduction for the simple reason that it does not entail the taking away of a part or portion
of the male reproductive system. The cut ends, after they have been tied, are then dropped back into the
incision.[59]
Though undeniably, vasectomy denies a man his power of reproduction, such procedure does not
deprive him, either totally or partially, of some essential organ for reproduction. Notably, the ordinary usage of
the term mutilation is the deprivation of a limb or essential part (of the body), [60] with the operative expression
being deprivation. In the same manner, the word castration is defined as the removal of the testies or ovaries.
[61]
Such being the case in this present petition, the bilateral vasectomy done on Larry could not have amounted
to the crime of mutilation as defined and punished under Article 262, paragraph 1, of the Revised Penal
Code. And no criminal culpability could be foisted on to respondent Dr. Agatep, the urologist who performed
the procedure, much less the other respondents. Thus, we find sufficient evidence to explain why the Assistant
City Prosecutor and the DOJ ruled the way they did. Verily, We agree with the Court of Appeals that the writ
of certiorari is unavailing; hence, should not be issued.
It is once more apropos to pointedly apply the Courts general policy of non-interference in the conduct
of preliminary investigations. As it has been oft said, the Supreme Court cannot order the prosecution of a
person against whom the prosecutor does not find sufficient evidence to support at least a prima facie case.
[62]
The courts try and absolve or convict the accused but, as a rule, have no part in the initial decision to
prosecute him.[63] The possible exception to this rule is where there is an unmistakable showing of a grave abuse
of discretion amounting to lack or excess of jurisdiction that will justify judicial intrusion into the precincts of
the executive. But that is not the case herein.
WHEREFORE, premises considered, the instant petition is DENIED for lack of merit. The assailed 21
July 2005 Decision and 5 December 2005 Resolution, both of the Court of Appeals in CA-G.R. SP No. 88370
are hereby AFFIRMED. Costs against petitioner Gloria Aguirre.
SO ORDERED.

FIRST DIVISION

PHILIP S. YU,
Petitioner,,

G.R. No. 182291

Present:

- versus -

HERNAN G. LIM,
Respondent.

CORONA, C. J.,
Chairperson,
CARPIO MORALES,*
VELASCO, JR.,
ABAD,** and
PEREZ, JJ.

Promulgated:
September 22, 2010

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

PEREZ, J.:
The Case
In this Petition for Review[1] on Certiorari, petitioner Philip S. Yu seeks to set aside the Decision [2] dated 20
December 2007 and the Resolution[3] dated 18 March 2008 of the Court of Appeals in CA-G.R. SP No.
99893. The challenged Decision and Resolution granted respondents petition for certiorari which sought the
nullification of the Resolution[4] dated 4 September 2006 of the Secretary of Justice which, in turn, ordered the
filing of an Information against respondent for the crime of Perjury.
The Antecedents
On 5 February 2004, respondent, as representative of HGL Development Corporation (HGL), filed before the
Regional Trial Court (RTC) of Zamboanga City a Petition to Declare New Owners Duplicate of Transfer
Certificate of Title Nos. T-107, 353, T-107,354, T-107,355, T-103,790 as Null and Void and to Revive the Old
Owners Duplicate.[5]This petition was docketed as Cadastral Case No. 04-09 before Branch 14 of said court.
It appears that petitioner and his co-owners of the aforementioned parcels of land sold the same to HGL by
virtue of a Deed of Absolute Sale dated 19 August 2003. [6] HGL then sought the cancellation of the Transfer
Certificate of Titles (TCTs) in the names of the vendors, and the issuance of new TCTs in its name, with the
Register of Deeds of Zamboanga City. The latter, however, refused to do so on the ground that new owners
duplicate copies of the TCTs covering the subject parcels of land had been issued to the vendors by virtue of an
order of RTC, Branch 16, Zamboanga City dated 7 July 1995. [7] Apparently, the vendors succeeded in having

the TCTs in their possession cancelled, and new owners duplicates thereof issued to them, by alleging the loss
of their copies of the TCTs.[8] Hence, the refusal of the Register of Deeds of Zamboanga City to cancel the TCTs
presented by HGL, it appearing that the same had already been cancelled as far back as 1995.
Demands were then made by respondent upon the vendors to surrender the new owners duplicate copies of the
TCTs to enable HGL to secure their cancellation and the issuance of new TCTs in its name, but the vendors
unreasonably refused to comply with the demands. [9] Thus, the filing of Cadastral Case No. 04-09, wherein
HGL, through herein respondent, prayed for the declaration as null and void of the new owners duplicate TCTs
and the revival of the original owners duplicate TCTs in the possession of HGL. [10]The petition was dismissed
by the trial court on 20 May 2004 for lack of merit.[11]
On 2 June 2004, HGL filed a complaint[12] before the Regional Trial Court of Caloocan City against some of the
vendors, namely: Sy Pek Ha, Ricafort S. Yu, and herein petitioner Philip S. Yu, for Specific Performance and
Surrender of Owners Duplicate Titles, Declaratory Relief or Reformation of Instrument, Cancellation and
Issuance of New Titles, and Damages, praying, among others, that defendants be ordered to surrender to
plaintiff the new owners duplicate TCTs and that the Register of Deeds of Zamboanga City be ordered to cancel
all TCTs in the name of the vendors and new ones be issued to HGL. The complaint was docketed as Civil Case
No. C-20899(04).
On 18 August 2005, petitioner filed before the Office of the City Prosecutor of Caloocan City a criminal
complaint[13] for Perjury against respondent, alleging that as the representative of HGL, the latter made
untruthful statements in the Verification and Certification Against Forum Shopping which he signed and
attached to the above-mentioned civil complaint for specific performance. Petitioner claimed that respondents
statement that HGL has not commenced any other action or filed any claim involving the same issues in any
other court, tribunal or quasi-judicial agency is absolutely false since the corporation had earlier filed Cadastral
Case No. 04-09 with the RTC of Zamboanga City.[14]
The Ruling of the Office of the City Prosecutor of Caloocan City
In its Resolution[15] dated 15 February 2006, the Office of the Assistant City Prosecutor of Caloocan City
dismissed, for lack of merit, petitioners complaint for perjury. It found that while the Zamboanga case and the
Caloocan case involve the same res, they do not involve the same parties and the same rights or relief prayed
for. The causes of action in the two cases are likewise not the same, being founded on different acts. In other
words, none of the requisites of forum shopping were satisfied. Hence, it concluded, it follows that respondent
did not commit perjury when he made his representations in the Certificate of Non-Forum Shopping.[16]
Petitioner filed an appeal from the Resolution of the city prosecutor dismissing his complaint. In his Petition for
Review[17] before the Department of Justice, petitioner claimed that the city prosecutor of Caloocan City
committed manifest and reversible error in dismissing the criminal complaint against respondent since all the
elements of perjury are present in this case. [18] He thus prayed for the reversal and setting aside of the Resolution
of the city prosecutor.[19]
The Ruling of the Department of Justice
In its Resolution[20] dated 4 September 2006, the Department of Justice granted the petition for review and
directed the filing of an Information for Perjury against respondent. It held that Cadastral Case No. 04-09, filed
in Zamboanga City, involved the same TCTs, the same relief for the declaration of nullity of the TCTs in the
possession of the vendors, the same parties and essentially the same facts and issues as Civil Case No.

20899(04) pending in the RTC of Caloocan City.[21] Thus, it is clear that respondent should have disclosed in his
Verification and Certification Against Forum Shopping the previous filing of Cadastral Case No. 04-09.[22]
Respondent filed a Motion for Reconsideration [23] dated 8 September 2006 praying for the reversal of the
aforesaid Resolution but the same was denied in a Resolution dated 29 June 2007.[24]
As a result, respondent filed a Petition for Certiorari with an Urgent Application for a Temporary Restraining
Order and Writ of Preliminary Injunction [25] with the Court of Appeals praying that the appellate court declare
that no probable cause exists to indict him for perjury, that the criminal complaint be dismissed, and that a writ
of preliminary injunction be issued directing the Secretary of Justice to cease and desist from implementing his
assailed resolutions.[26] Respondent claimed that in issuing the questioned resolutions, the Secretary of the
Department of Justice committed grave abuse of discretion amounting to lack or excess of jurisdiction. He
maintained that there is absolutely no probable cause to indict him for perjury as he has not made any willful
and deliberate assertion of a falsehood in his Verification and Certification Against Forum Shopping.[27]
The Ruling of the Court of Appeals
In its Decision[28] dated 20 December 2007, the Court of Appeals granted respondents petition, nullified and set
aside the assailed resolutions, and prohibited the Secretary of Justice and the Office of the City Prosecutor of
Caloocan and their agents from prosecuting respondent for perjury. The Court of Appeals held that the lack of
probable cause against respondent herein is glaringly evident from the records; hence, the Secretary of Justice
committed grave abuse of discretion amounting to excess or lack of jurisdiction when he issued the challenged
resolutions.[29]
Petitioner filed a motion for reconsideration but the same was denied by the Court of Appeals in a Resolution
dated 18 March 2008.[30]
Hence, this petition for review on certiorari.

The Issue
The lone issue for consideration in the case at bar is whether or not the Court of Appeals erred in modifying and
setting aside the resolutions of the Department of Justice directing the filing of an Information for Perjury
against respondent herein.
Petitioner claims that all the elements of perjury
(a) That the accused made a statement under oath or executed an affidavit upon a material matter;
(b) That the statement or affidavit was made before a competent officer authorized to receive and
administer oaths;
(c) That in the statement or affidavit, the accused made a willful and deliberate assertion of a
falsehood; and

(d) That the sworn statement or affidavit containing the falsity is required by law or made for a legal
purpose

-- are present in this case. The Verification and Certification Against Forum Shopping is a statement under oath,
subscribed and sworn to before a duly commissioned notary public, in which respondent made a willful and
deliberate assertion of a falsehood. The falsehood consists in respondents pronouncement that the corporation
which he represents has not commenced any other action or filed any claim, involving the same issues, in any
other court, tribunal or quasi-judicial agency. Petitioner maintains that this statement is absolutely false
considering the earlier act of respondent of filing a cadastral case in Zamboanga City involving substantially the
same parties, facts, issues and reliefs prayed for.[31] According to petitioner, the two cases have one and the same
legal objective: the cancellation of the new owners duplicate copies of titles in the possession of the defendants
(the vendors) in the Caloocan City case and the upholding of the owners duplicate copies of titles in the
corporations possession. Thus, respondent had the legal obligation to disclose the previous filing and dismissal
of the cadastral case.[32]
Petitioner further contends that the matter of whether the act of making a false certification should subject the
offender to prosecution for perjury is to be tested not by the elements of forum shopping but by the elements of
perjury. Consequently, regardless of whether or not respondent is guilty of forum shopping, what is at issue in
the criminal complaint is whether respondent made a willful and deliberate assertion in a public document of a
falsehood upon a material matter regarding which he had the legal obligation to state the truth. Petitioner
submits that respondent had done so, making the latter liable for prosecution for the crime of perjury under
Article 183 of the Revised Penal Code.[33]
Finally, petitioner asserts that concomitant with his authority and power to control the prosecution of criminal
offenses, it is the public prosecutor who is vested with the discretionary power to determine whether a prima
facie case exists or not. Given this latitude and authority granted by law to the investigating prosecutor, the rule
is that courts will not interfere with the conduct of preliminary investigations or the determination of what
constitutes sufficient probable cause for the filing of the corresponding information against an offender. Courts
are not empowered to substitute their own judgment for that of the executive branch. As a matter of whether to
prosecute or not is purely discretionary on the part of the public prosecutor, his findings on the existence of
probable cause are not subject to review by the courts, unless these are patently shown to have been made with
grave abuse of discretion.[34]
The Ruling of the Court
At the outset, it must be stated that what the Court is essentially called upon to resolve in this case is the
existence of probable cause sufficient to indict respondent for perjury.
Petitioner correctly pointed out that this Court will not ordinarily interfere with the conduct of preliminary
investigation and leave to the investigating prosecutor adequate latitude of discretion in the determination of
what constitutes sufficient evidence as will establish probable cause for the filing of an information against an
offender.[35] Nonetheless, as petitioner himself admitted, the rule applies unless such determination is patently
shown to have been made with grave abuse of discretion. Thus, as an exception, this Court may inquire into the
determination of probable cause during preliminary investigation if, based on the records, the prosecutor
committed grave abuse of discretion.[36]

The exception to the rule finds application here. As properly found by the Court of Appeals, the Secretary of
Justice manifestly acted with or in excess of his authority when he ordered the filing of an information for
perjury against respondent despite the absence of probable cause against him.[37]
Petitioner insists that the existence or absence of perjury should be defined by its own elements, and not those
of forum shopping. Hence, petitioner argued, even if the elements of forum shopping may not all be present,
such fact does not relieve the affiant from liability for perjury if all the elements of this latter offense are
otherwise present.[38]
What this argument failed to consider, however, is that since perjury requires a willful and deliberate assertion
of a falsehood in a statement under oath or in an affidavit, and the statement or affidavit in question here is
respondents verification and certification against forum shopping, it then becomes necessary to consider the
elements of forum shopping to determine whether or not respondent has committed perjury. In other words,
since the act of respondent allegedly constituting perjury consists in the statement under oath which he made in
the certification of non-forum shopping, the existence of perjury should be determined vis--vis the elements of
forum shopping.
It is significant to note that, notwithstanding his protests and insistence against the application of the elements
of forum shopping in deciding whether or not perjury exists, petitioner himself, in his petition, utilized the
elements of forum shopping to support his argument that the statement of respondent that the corporation has
not commenced any other action or filed any claim involving the same issues in any other court is absolutely
false. Thus, petitioner claimed that:
(a) As to the principal party. HGL Development Corporation is the petitioner in both cases. x x
x. The fact that in the civil case, x x x the parties involved are HGL and private respondent, among
others, is of no moment. It is apparent that the parties are substantially identical, if not the same. x x
x.
(b) As to the essential facts. In both cases HGL Development Corporation is asserting legal
ownership of five parcels of land located at Zamboanga City x x x.
(c) As to the essential issues. The essential issues are identical in both cases. These issues refer to
(a) the legal ownership of the subject parcels of land; (b) who between the parties are validly
entitled to the owners duplicate copies of the titles; and (c) which of the titles the ones in the
corporations possession or in the other parties possession should be declared valid. In both the
cadastral case in Zamboanga City and the civil case in Caloocan City, HGL Development
Corporation prayed for the upholding of its right of ownership over the properties and of the
validity of the owners duplicate copies of titles in its possession and, inevitably, the
cancellation or declaration as null and void of contrary owners duplicate copies of titles over
the same properties.
(d) As to the relief prayed for. In both cases, the corporation prayed for the declaration as null and
void of the new owners duplicate copies and for the revival or restoration of the original duplicate
copies in its possession. x x x.[39]

The foregoing is explicit acknowledgement of the necessity of determining first whether or not the elements of
forum shopping are present in order to finally resolve the issue of perjury.

Forum shopping exists when the elements of litis pendentia are present or where a final judgment in one case
will amount to res judicata in another. Litis pendentia requires the concurrence of the following requisites: (1)
identity of parties, or at least such parties as those representing the same interests in both actions; (2) identity of
rights asserted and reliefs prayed for, the reliefs being founded on the same facts; and (3) identity with respect to
the two preceding particulars in the two cases, such that any judgment that may be rendered in the pending case,
regardless of which party is successful, would amount to res judicata in the other case.[40]
What is pivotal in determining whether forum shopping exists or not is the vexation caused the courts and
parties-litigants by a party who asks different courts and/or administrative agencies to rule on the same or
related cases and/or grant the same or substantially the same reliefs, in the process creating the possibility of
conflicting decisions being rendered by the different courts and/or administrative agencies upon the same issues.
[41]

Based on the foregoing considerations, respondent did not have the legal obligation to disclose the previous
filing and subsequent dismissal of the cadastral case in Zamboanga City.
As correctly put by the Assistant City Prosecutor of Caloocan City in his Resolution dismissing petitioners
complaint for perjury:
A perusal of the two cases would show that while it involves the same res, it does not involve the
same parties or rights or relief prayed for. In sum, none of the requisites [of forum shopping were]
satisfied.
The case in Caloocan was of course founded upon the complainants failure to comply with its
obligations as vendor, and therefore, it cannot be gainsaid that the rights asserted (by respondent as
buyer and relief sought therein i.e., specific performance contract of sale) were entirely different
from those asserted in Zamboanga (revival of the old owners duplicate that had been thought to be
lost). The latter case stemmed from the finding of the old certificates, leading to respondents filing a
petition to declare the new certificates null and void and to revive the old owners duplicate.The
former case arose from the deed of absolute sale and the failure of the complainant to fulfill its
obligation under the contract of sale between the parties herein.
The causes of action in the two cases are not the same: they are founded on different acts; the rights
violated are different; and the relief sought is also different. The res judicata test when applied to
the two cases in question shows that regardless of whoever will ultimately prevail in the Zamboanga
case, the final judgment therein-whether granting or denying the petition-will not be conclusive
between the parties in the Caloocan case, and vice versa. x x x.[42]
Moreover, in the Zamboanga case, what was invoked was the courts cadastral or administrative authority, the
issue being administrative in nature, involving as it does the correction of a wrongful issuance of duplicate
titles. There were no judicial issues that required resolution.
In the Caloocan case, on the other hand, the issues are civil in nature, concerning the rights and responsibilities
of the parties under the Deed of Absolute Sale which they executed. Hence, in this case, the Caloocan court is
called upon to exercise its judicial powers.
Clearly, it cannot be said that respondent committed perjury when he failed to disclose in his Certification
Against Forum Shopping the previous filing of the cadastral case.

More importantly, it must be emphasized that perjury is the willful and corrupt assertion of a falsehood under
oath or affirmation administered by authority of law on a material matter. Thus, a mere assertion of a false
objective fact or a falsehood is not enough. The assertion must be deliberate and willful.[43]
In the case at bar, even assuming that respondent was required to disclose the Zamboanga case, petitioner failed
to establish that respondents failure to do so was willful and deliberate. Thus, an essential element of the crime
of perjury is absent. As a result, there is no reason to disturb the ruling of the Court of Appeals.
WHEREFORE, the instant petition is hereby DENIED. The Decision and Resolution of the Court of Appeals
in CA-G.R. SP No. 99893 dated 20 December 2007 and 18 March 2008, respectively, are
hereby AFFIRMED. Costs against petitioner.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Baguio City
THIRD DIVISION
G.R. No. 197293

April 21, 2014

ALFREDO C. MENDOZA, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES AND JUNO CARS, INC., Respondents.
DECISION
LEONEN, J.:
While the determination of probable cause to charge a person of a crime is the sole function of the. prosecutor,
the trial court may, in the protection of one's fundamental right to liberty, dismiss the case if, upon a personal
assessment of the evidence, it finds that the evidence does not establish probable cause.
This is a petition for review on certiorari1 assailing the Court of Appeals' decision2 dated January 14, 2011,
which reversed the Regional Trial Court's dismissal of the complaint against petitioner Alfredo C. Mendoza for
qualified theft and estafa.
This case stems from a complaint-affidavit filed by Juno Cars, Inc. through its representative, Raul C.
Evangelista, on January 8, 2008 for qualified theft and estafa against Alfredo.3
In the complaint-affidavit, Juno Cars alleged that on June 2, 2007, it hired Alfredo as Trade-In/Used Car
Supervisor. On November 19, 2007, its Dealer/Operator, Rolando Garcia, conducted a partial audit of the used
cars and discovered that five (5) cars had been sold and released by Alfredo without Rolandos or the finance
managers permission.4
The partial audit showed that the buyers of the five cars made payments, but Alfredo failed to remit the
payments totalling P886,000.00. It was further alleged that while there were 20 cars under Alfredos custody,
only 18 were accounted for. Further investigation revealed that Alfredo failed to turn over the files of a 2001
Hyundai Starex and a Honda City 1.5 LXI. Juno Cars alleged that taking into account the unremitted amounts
and the acquisition cost of the Honda City, Alfredo pilfered a total amount of P1,046,000.00 to its prejudice and
damage.5
In his counter-affidavit, Alfredo raised, among others, Juno Cars supposed failure to prove ownership over the
five (5) cars or its right to possess them with the purported unremitted payments. Hence, it could not have
suffered damage.6
On March 4, 2008, Provincial Prosecutor Rey F. Delgado issued a Resolution7 finding probable cause and
recommending the filing of an information against Alfredo for qualified theft and estafa.
Alfredo moved for reconsideration, but the motion was denied.8 He then filed a petition for review with the
Department of Justice on May 16, 2008.9

While Alfredos motion for reconsideration was still pending before the Office of the City Prosecutor of
Mandaluyong, two informations for qualified theft10 and estafa11 were filed before the Regional Trial Court,
Branch 212, Mandaluyong City. On March 31, 2008, Alfredo filed a motion for determination of probable
cause12 before the trial court. On April 28, 2008, he also filed a motion to defer arraignment.
Several clarificatory hearings were scheduled but were not conducted.13 On February 4, 2009, the parties agreed
to submit all pending incidents, including the clarificatory hearing, for resolution.14
On March 3, 2009, the trial court, through Presiding Judge Rizalina Capco-Umali, issued an order15 dismissing
the complaint, stating that:
After conducting an independent assessment of the evidence on record which includes the assailed Resolution
dated 04 March 2008, the court holds that the evidence adduced does not support a finding of probable cause for
the offenses of qualified theft and estafa. x x x.16
Juno Cars filed a motion for reconsideration, which the trial court denied on July 3, 2009.17
Juno Cars then filed a petition for certiorari with the Court of Appeals, arguing that the trial court acted without
or in excess of its jurisdiction and with grave abuse of discretion when it dismissed the complaint. It argued that
"the determination of probable cause and the decision whether or not to file a criminal case in court, rightfully
belongs to the public prosecutor."18
On January 14, 2011, the Court of Appeals rendered a decision,19 reversed the trial court, and reinstated the case.
In its decision, the appellate court ruled that the trial court acted without or in excess of its jurisdiction "in
supplanting the public prosecutors findings of probable cause with her own findings of insufficiency of
evidence and lack of probable cause."20
Aggrieved, Alfredo filed a petition for review under Rule 45 before this court. In essence, he argued that the
trial court was correct in finding that there was no probable cause as shown by the evidence on record. He
argued that "judicial determination of probable cause is broader than [the] executive determination of probable
cause"21and that "[i]t is not correct to say that the determination of probable cause is exclusively vested on the
prosecutor x x x."22
In its comment,23 Juno Cars argued that Alfredo presented questions, issues, and arguments that were a mere
rehash of those already considered and passed upon by the appellate court.
The Office of the Solicitor General, arguing for public respondent, stated in its comment24 that the appellate
court correctly sustained the public prosecutor in his findings of probable cause against Alfredo. Since there was
no showing of grave abuse of discretion on the part of Prosecutor Rey F. Delgado, the trial court should respect
his determination of probable cause.
In his reply,25 Alfredo reiterated that "judicial determination of probable cause[,] while not a superior faculty[,]
covers a broader encompassing perspective in the disposition of the issue on the existence of probable
cause."26He argued that the findings of the trial court should be accorded greater weight than the appellate
courts. It merely reviewed the findings of the trial court.
The primordial issue is whether the trial court may dismiss an information filed by the prosecutor on the basis
of its own independent finding of lack of probable cause.

Time and again, this court has been confronted with the issue of the difference between the determination of
probable cause by the prosecutor on one hand and the determination of probable cause by the judge on the other.
We examine these two concepts again.
Juno Cars filed a complaint against Alfredo for qualified theft27 and estafa under Article 315, fourth paragraph,
no. 3(c)28 of the Revised Penal Code. Since qualified theft is punishable by reclusion perpetua, a preliminary
investigation must first be conducted "to determine whether there is sufficient ground to engender a wellfounded belief that a crime has been committed and the respondent is probably guilty thereof, and should be
held for trial," in accordance with Rule 112, Section 1 of the Rules on Criminal Procedure.
At this stage, the conduct of the preliminary investigation and the subsequent determination of the existence of
probable cause lie solely within the discretion of the public prosecutor.29 If upon evaluation of the evidence, the
prosecutor finds sufficient basis to find probable cause, he or she shall then cause the filing of the information
with the court.
Once the information has been filed, the judge shall then "personally evaluate the resolution of the prosecutor
and its supporting evidence"30 to determine whether there is probable cause to issue a warrant of arrest. At this
stage, a judicial determination of probable cause exists.
In People v. Castillo and Mejia,31 this court has stated:
There are two kinds of determination of probable cause: executive and judicial. The executive determination of
probable cause is one made during preliminary investigation. It is a function that properly pertains to the public
prosecutor who is given a broad discretion to determine whether probable cause exists and to charge those
whom he believes to have committed the crime as defined by law and thus should be held for trial. Otherwise
stated, such official has the quasi-judicial authority to determine whether or not a criminal case must be filed in
court. Whether or not that function has been correctly discharged by the public prosecutor, i.e., whether or not
he has made a correct ascertainment of the existence of probable cause in a case, is a matter that the trial court
itself does not and may not be compelled to pass upon.
The judicial determination of probable cause, on the other hand, is one made by the judge to ascertain whether a
warrant of arrest should be issued against the accused. The judge must satisfy himself that based on the
evidence submitted, there is necessity for placing the accused under custody in order not to frustrate the ends of
justice. If the judge finds no probable cause, the judge cannot be forced to issue the arrest warrant.32
The difference is clear: The executive determination of probable cause concerns itself with whether there is
enough evidence to support an Information being filed. The judicial determination of probable cause, on the
other hand, determines whether a warrant of arrest should be issued. In People v. Inting:33
x x x Judges and Prosecutors alike should distinguish the preliminary inquiry which determines probable cause
for the issuance of a warrant of arrest from the preliminary investigation proper which ascertains whether the
offender should be held for trial or released. Even if the two inquiries are conducted in the course of one and the
same proceeding, there should be no confusion about the objectives. The determination of probable cause for
the warrant of arrest is made by the Judge. The preliminary investigation properwhether or not there is
reasonable ground to believe that the accused is guilty of the offense charged and, therefore, whether or not he
should be subjected to the expense, rigors and embarrassment of trialis the function of the
Prosecutor.34 (Emphasis supplied)

While it is within the trial courts discretion to make an independent assessment of the evidence on hand, it is
only for the purpose of determining whether a warrant of arrest should be issued. The judge does not act as an
appellate court of the prosecutor and has no capacity to review the prosecutors determination of probable
cause; rather, the judge makes a determination of probable cause independent of the prosecutors finding.
People v. Court of Appeals and Jonathan Cerbo35 discussed the rationale. In that case, Jonathan Cerbo allegedly
shot Rosalinda Dy in the presence of his father, Billy Cerbo. An information for murder was filed against
Jonathan Cerbo. The daughter of Rosalinda Dy, as private complainant, executed a complaint-affidavit charging
Billy Cerbo with conspiracy. The prosecutor then filed a motion to amend the information, which was granted
by the court. The information was then amended to include Billy Cerbo as one of the accused, and a warrant of
arrest was issued against him.
Billy Cerbo filed a motion to quash the warrant arguing that it was issued without probable cause. The trial
court granted this motion, recalled the warrant, and dismissed the case against him. The Court of Appeals
affirmed this dismissal. This court, however, reversed the Court of Appeals and ordered the reinstatement of the
amended information against Billy Cerbo, stating that:
In granting this petition, we are not prejudging the criminal case or the guilt or innocence of Private Respondent
Billy Cerbo. We are simply saying that, as a general rule, if the information is valid on its face and there is no
showing of manifest error, grave abuse of discretion or prejudice on the part of the public prosecutor, courts
should not dismiss it for want of evidence, because evidentiary matters should be presented and heard during
the trial. The functions and duties of both the trial court and the public prosecutor in "the proper scheme of
things" in our criminal justice system should be clearly understood.
The rights of the people from what could sometimes be an "oppressive" exercise of government prosecutorial
powers do need to be protected when circumstances so require. But just as we recognize this need, we also
acknowledge that the State must likewise be accorded due process. Thus, when there is no showing of nefarious
irregularity or manifest error in the performance of a public prosecutors duties, courts ought to refrain from
interfering with such lawfully and judicially mandated duties.
In any case, if there was palpable error or grave abuse of discretion in the public prosecutors finding of
probable cause, the accused can appeal such finding to the justice secretary and move for the deferment or
suspension of the proceedings until such appeal is resolved.36 (Emphasis supplied)
In this case, the resolution dated March 4, 2008 of Prosecutor Rey F. Delgado found that the facts and evidence
were "sufficient to warrant the indictment of [petitioner] x x x."37 There was nothing in his resolution which
showed that he issued it beyond the discretion granted to him by law and jurisprudence.
While the information filed by Prosecutor Delgado was valid, Judge Capco-Umali still had the discretion to
make her own finding of whether probable cause existed to order the arrest of the accused and proceed with
trial.
Jurisdiction over an accused is acquired when the warrant of arrest is served. Absent this, the court cannot hold
the accused for arraignment and trial.
Article III, Section 2 of the Constitution states:
The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches
and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of

arrest shall issue except upon probable cause to be determined personally by the judge after examination under
oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place
to be searched and the persons or things to be seized.
The Constitution prohibits the issuance of search warrants or warrants of arrest where the judge has not
personally determined the existence of probable cause. The phrase "upon probable cause to be determined
personally by the judge after examination under oath or affirmation of the complainant and the witnesses he
may produce" allows a determination of probable cause by the judge ex parte.
For this reason, Section 6, paragraph (a) of Rule 112 of the Rules on Criminal Procedure mandates the judge to
"immediately dismiss the case if the evidence on record fails to establish probable cause." Section 6, paragraph
(a) of Rule 112 reads:
Section 6. When warrant of arrest may issue. (a) By the Regional Trial Court. Within ten (10) days from
the filing of the complaint or information, the judge shall personally evaluate the resolution of the prosecutor
and its supporting evidence. He may immediately dismiss the case if the evidence on record clearly fails to
establish probable cause. If he finds probable cause, he shall issue a warrant of arrest, or a commitment order if
the accused has already been arrested pursuant to a warrant issued by the judge who conducted the preliminary
investigation or when the complaint or information was filed pursuant to section 7 of this Rule. In case of doubt
on the existence of probable cause, the judge may order the prosecutor to present additional evidence within
five (5) days from notice and the issue must be resolved by the court within thirty (30) days from the filing of
the complaint of information.
In People v. Hon. Yadao:38
Section 6, Rule 112 of the Rules of Court gives the trial court three options upon the filing of the criminal
information: (1) dismiss the case if the evidence on record clearly failed to establish probable cause; (2) issue a
warrant of arrest if it finds probable cause; and (3) order the prosecutor to present additional evidence within
five days from notice in case of doubt as to the existence of probable cause.
But the option to order the prosecutor to present additional evidence is not mandatory.1wphi1 The courts first
option under the above is for it to "immediately dismiss the case if the evidence on record clearly fails to
establish probable cause." That is the situation here: the evidence on record clearly fails to establish probable
cause against the respondents.39 (Emphasis supplied)
It is also settled that "once a complaint or information is filed in court, any disposition of the case, whether as to
its dismissal or the conviction or the acquittal of the accused, rests in the sound discretion of the court."40
In this case, Judge Capco-Umali made an independent assessment of the evidence on record and concluded that
"the evidence adduced does not support a finding of probable cause for the offenses of qualified theft and
estafa."41 Specifically, she found that Juno Cars "failed to prove by competent evidence"42 that the vehicles
alleged to have been pilfered by Alfredo were lawfully possessed or owned by them, or that these vehicles were
received by Alfredo, to be able to substantiate the charge of qualified theft. She also found that the complaint
"[did] not state with particularity the exact value of the alleged office files or their valuation purportedly have
been removed, concealed or destroyed by the accused,"43 which she found crucial to the prosecution of the
crime of estafa under Article 315, fourth paragraph, no. 3(c) of the Revised Penal Code. She also noted that:
x x x As a matter of fact, this court had even ordered that this case be set for clarificatory hearing to clear out
essential matters pertinent to the offense charged and even directed the private complainant to bring documents

relative to the same/payment as well as affidavit of witnesses/buyers with the end view of satisfying itself that
indeed probable cause exists to commit the present case which private complainant failed to do.44
Accordingly, with the present laws and jurisprudence on the matter, Judge Capco-Umali correctly dismissed the
case against Alfredo.
Although jurisprudence and procedural rules allow it, a judge must always proceed with caution in dismissing
cases due to lack of probable cause, considering the preliminary nature of the evidence before it. It is only when
he or she finds that the evidence on hand absolutely fails to support a finding of probable cause that he or she
can dismiss the case. On the other hand, if a judge finds probable cause, he or she must not hesitate to proceed
with arraignment and trial in order that justice may be served.
WHEREFORE, the petition is GRANTED. The decision dated January 14, 2011 of the Court of Appeals in CAG.R. SP. No. 110774 is REVERSED and SET ASIDE. Criminal Case Nos. MC08-11604-05 against Alfredo C.
Mendoza are DISMISSED.
SO ORDERED.

FIRST DIVISION

ARTEMIO T. TORRES, JR., G.R. No. 164268

Petitioner,
Present:

Davide, Jr., C.J. (Chairman),

- versus - Quisumbing,
Ynares-Santiago,
Carpio, and
Azcuna, JJ.
SPS. DRS. EDGARDO AGUINALDO &
NELIA T. TORRES-AGUINALDO, Promulgated:
Respondents.
June 28, 2005
x ---------------------------------------------------------------------------------------- x
DECISION

YNARES-SANTIAGO, J.:

This petition for review on certiorari[1] assails the decision[2] of the Court of Appeals dated March 22, 2004 in
CA-G.R. SP No. 77818, and its resolution[3] dated June 28, 2004 denying reconsideration thereof.
The facts are as follows:
Respondent-spouses Edgardo and Nelia Aguinaldo filed before the Office of the City Prosecutor (OCP) of
Manila,[4] a complaint against petitioner Artemio T. Torres, Jr. (Torres) for falsification of public document.
They alleged that titles to their properties covered by Transfer Certificates of Title Nos. T-93596, T-87764, and
T-87765, were transferred without their knowledge and consent in the name of Torres through a forged Deed of
Sale[5] dated July 21, 1979.
Torres denied the allegations of forgery and claimed that Aguinaldo sold the subject properties to
[6]
him as evidenced by the March 10, 1991 Deed of Absolute Sale.[7]
Finding probable cause, the OCP recommended the filing of an information for falsification of public
document against Torres,[8] which was filed before the Metropolitan Trial Court of Manila (MTC), Branch 8, on
October 3, 2001.

Torres moved for reconsideration[9] but was denied.[10]

On appeal,[11] the Secretary of Justice reversed the findings of the investigating prosecutor and ordered the
withdrawal of the information.[12] The motion for reconsideration filed by Aguinaldo was denied.[13]
A Motion to Withdraw Information[14] was filed which the MTC granted on June 11, 2003. [15] It should be noted
that petitioner has not been arraigned.
Meanwhile, Aguinaldo filed before the Court of Appeals a petition for certiorari [16] which was granted in the
assailed decision dated March 22, 2004.
The dispositive portion of the assailed decision reads:
WHEREFORE, in view of the foregoing, the petition is GRANTED. The resolutions of
the Secretary of Justice dated November 12, 2002 and April 30, 2003 in IS No. 01B-05485 are
REVERSED and SET ASIDE. The April 30, 2001 Resolution of the City Prosecutor of Manila
finding probable cause against private respondent Artemio Torres, Jr. is REINSTATED. No costs.
SO ORDERED.[17]
Torres motion for reconsideration was denied,[18] hence, the instant petition for review on certiorari[19] on the
following grounds:
I.
WHETHER OR NOT THE ORDER OF THE MTC-MANILA DATED 11 JUNE 2003
RENDERED MOOT AND ACADEMIC THE PETITION FOR CERTIORARI UNDER RULE 65
FILED BY RESPONDENTS BEFORE THE COURT OF APPEALS FOR THE PURPOSE OF
REINSTATING THE RESOLUTION OF THE OCP-MANILA DATED 30 APRIL 2001.

II.
WHETHER OR NOT THE ASSAILED DECISION OF THE COURT OF APPEALS
REINSTATING THE RESOLUTION OF THE OCP-MANILA DATED 30 APRIL 2001
VIOLATED THE DOCTRINE THAT THE DETERMINATION OF A CRIMINAL CASE IS
WITHIN THE EXCLUSIVE JURISDICTION OF THE COURT ONCE THE INFORMATION
HAS BEEN FILED THEREIN.
III.
WHETHER OR NOT THE EVIDENCE OF A RESPONDENT IN A CRIMINAL CASE
SHOULD BE CONSIDERED DURING THE PRELIMINARY INVESTIGATION IN
DETERMINING IF PROBABLE CAUSE EXISTS TO INDICT HIM FOR THE CRIME
CHARGED.
IV.
WHETHER OR NOT THE OCP-MANILA HAS ABSOLUTE DISCRETION IN
DETERMINING IF PROBABLE CAUSE EXISTS TO INDICT THE PETITIONER FOR THE
CRIME CHARGED.

V.
WHETHER OR NOT THE COURT OF APPEALS WENT BEYOND THE OFFICE OF A
WRIT OF CERTIORARI WHEN IT SUBSTITUTED ITS OWN JUDGMENT FOR THAT OF
THE SECRETARY OF JUSTICE.
VI.

WHETHER OR NOT THE COURT OF APPEALS SANCTIONED THE DELIBERATE

DISREGARD OF THE RULES OF PROCEDURE WHEN IT IGNORED THE FINAL ORDER
OF THE MTC-MANILA DATED 11 JUNE 2003 AND ORDERED THE REINSTATEMENT
OF THE RESOLUTION OF THE OCP-MANILA DATED 30 APRIL 2001.
VII.
WHETHER OR NOT RESPONDENTS ENGAGED IN FORUM SHOPPING WARRANTING
THE OUTRIGHT DISMISSAL OF THE PETITIONER (sic) FOR CERTIORARI UNDER
RULE 65 WHICH THEY FILED BEFORE THE COURT OF APPEALS.
VIII.
WHETHER OR NOT THE COURT OF APPEALS SANCTIONED THE DISREGARD OF
SECTION 3, RULE 46 OF THE 1997 RULES OF CIVIL PROCEDURE WHEN IT
ENTERTAINED THE PETITION FOR CERTIORARI UNDER RULE 65 FILED BY
RESPONDENTS.[20]

The foregoing assignment of errors may be summarized into three issues:

I. Whether the order of the MTC-Manila dated June 11, 2003 granting the motion to withdraw
the information rendered moot the petition for certiorari filed by Aguinaldo for the
purpose of reinstating the April 30, 2001 resolution of the OCP of Manila; and in the
alternative, whether the rule on provisional dismissal under Section 8, Rule 117 applies.
II. Whether Aguinaldo committed forum shopping.
III. Whether the Court of Appeals erred in finding that the Secretary of Justice gravely abused his
discretion in reinstating the April 30, 2001 order of the OCP of Manila finding probable
cause against petitioner.
Anent the first issue, Torres contends that the order granting the withdrawal of the information rendered moot
the petition for certiorari filed before the Court of Appeals. CitingBaares II v. Balising,[21] Torres insists that an
order dismissing a case without prejudice is final if no motion for reconsideration or appeal therefrom is timely
filed.
The contention is untenable. A motion to withdraw information differs from a motion to dismiss. While both put
an end to an action filed in court, their legal effect varies. The order granting the withdrawal of the information
attains finality after fifteen (15) days from receipt thereof, without prejudice to the re-filing of the
information upon reinvestigation.

On the other hand, the order granting a motion to dismiss becomes final fifteen (15) days after receipt
thereof, with prejudice to the re-filing of the same case once such order achieves finality. In Baares II v.
Balising, a motion to dismiss was filed thus putting into place the time-bar rule on provisional dismissal.
In the case at bar, a motion to withdraw information was filed and not a motion to dismiss.
Hence, Baares II v. Balising would not apply. Unlike a motion to dismiss, a motion to withdraw information is
not time-barred and does not fall within the ambit of Section 8, Rule 117 of the Revised Rules of Criminal
Procedure which provides that the law on provisional dismissal becomes operative once the judge dismisses,
with the express consent of the accused and with notice to the offended party: (a) a case involving a penalty of
imprisonment not exceeding six (6) years or a fine of any amount, or both, where such provisional dismissal
shall become permanent one (1) year after issuance of the order without the case having been revived; or (b) a
case involving a penalty of imprisonment of more than six (6) years, where such provisional dismissal shall
become permanent two (2) years after issuance of the order without the case having been revived.
There is provisional dismissal[22] when a motion filed expressly for that purpose complies with the following
requisites, viz.: (1) It must be with the express consent of the accused; and (2) There must be notice to the
offended party. Section 8, Rule 117 contemplates the filing of a motion to dismiss, and not a motion to withdraw
information. Thus, the law on provisional dismissal does not apply in the present case.
Even assuming that the Motion to Withdraw Information is the same as a Motion to Dismiss, we do not find that
it complied with the above requisites. The Motion to Withdraw Information was filed by the Assistant City
Prosecutor and approved by the City Prosecutor without the conformity of the accused, herein petitioner Torres.
Thus, it cannot be said that the motion was filed with his express consent as required under Section 8, Rule 117.
Respondent-spouses are not guilty of forum shopping. The cases they filed against petitioner are based on
distinct causes of action. Besides, a certificate of non-forum shopping is required only in civil complaints under
Section 5, Rule 7 of the Revised Rules of Civil Procedure. In People v. Ferrer,[23] we held that such certificate is
not even necessary in criminal cases and distinct causes of action.
Be that as it may, what is principally assailed is the Court of Appeals decision reversing the resolution of the
Justice Secretary and reinstating the April 30, 2001 resolution of the OCP of Manila.
The issue, therefore, is whether the Secretary of Justice gravely abused his discretion in reversing the
investigating prosecutors findings on the existence of probable cause.
Section 1, Rule 112 of the Revised Rules of Criminal Procedure defines preliminary investigation as an inquiry
or proceeding to determine whether there is sufficient ground to engender a well-founded belief that a crime has
been committed and that the respondent is probably guilty thereof, and should be held for trial. The officers
authorized to conduct a preliminary investigation are the: (a) Provincial or city fiscals and their assistants; (b)
Municipal Trial Courts and Municipal Circuit Trial Courts Judges; (c) National and Regional state prosecutors;
and (d) Such other officers as may be authorized by law.[24]
Preliminary investigation is executive in character. It does not contemplate a judicial function. It is essentially
an inquisitorial proceeding, and often, the only means of ascertaining who may be reasonably charged with a
crime. It is not a trial on the merits and has no purpose except to determine whether a crime has been committed

and whether there is probable cause to believe that the accused is guilty thereof. It does not place the person
against whom it is taken in jeopardy.
Generally, preliminary investigation falls under the authority of the prosecutor. However, since there are
not enough prosecutors, this function was also assigned to judges of Municipal Trial Courts and Municipal
Circuit Trial Courts. Their findings are reviewed by the provincial or city prosecutor whose findings, in turn,
may be reviewed by the Secretary of Justice in appropriate cases. After conducting preliminary investigation,
the investigating judge must transmit within ten (10) days the resolution of the case together with the entire
records to the provincial or city prosecutor.[25]
In Crespo v. Mogul,[26] we underscored the cardinal principle that the public prosecutor controls and directs the
prosecution of criminal offenses whose resolutions may be reviewed by the Secretary of Justice. [27] We held that
where there is a clash of views between a judge who did not investigate and a fiscal who conducted a
reinvestigation, those of the prosecutor should normally prevail.[28]
We ruled in Ledesma v. Court of Appeals[29] that when a motion to withdraw an information is filed on the
ground of lack of probable cause based on a resolution of the Secretary of Justice, the bounden duty of the trial
court is to independently assess the merits of the motion. The judge is not bound by the resolution of the Justice
Secretary but must evaluate it before proceeding with the trial. While the ruling of the Justice Secretary is
persuasive, it is not binding on courts.
In sum, prosecutors control and direct the prosecution of criminal offenses, including the conduct of preliminary
investigation, subject to review by the Secretary of Justice. While his resolution is persuasive, it is not binding
on the courts. The trial court must at all times make its own independent assessment of the merits of each case.
Thus, it is only where the decision of the Justice Secretary, or the trial court, as the case may be, is tainted with
grave abuse of discretion amounting to lack or excess of jurisdiction that the Court of Appeals may take
cognizance of the case in a petition for certiorari under Rule 65 of the Revised Rules of Civil Procedure whose
decision may then be appealed to this Court by way of a petition for review on certiorari.
The Court of Appeals held that the Justice Secretary committed grave abuse of discretion because he
based his findings on the lack of probable cause on the 1991 Deed of Sale when what was assailed was the 1979
Deed of Sale.[30] It ruled that the defenses raised by Torres should not have been considered during the
preliminary investigation but should be threshed out only during trial. [31] Only the evidence presented by the
complainant should be considered in determining probable cause or the lack thereof.

We are not persuaded.

The Court of Appeals erred in relying solely on the affidavit-complaint and the NBI report [32] and
disregarding totally the counter-affidavit and documentary evidence of petitioner.

It is well to note that Section 3, Rule 112 of the Revised Rules of Criminal Procedure not only requires
the submission of the complaint and the affidavits of the complainant and his witnesses, as well as other

supporting documents, but also directs the respondent to submit his counter-affidavit and that of his witnesses
and other supporting documents relied upon for his defense. Section 4 thereof also mandates the investigating
prosecutor to certify under oath in the information that the accused was informed of the complaint and the
evidence against him, and that he was given an opportunity to submit controverting evidence.

Thus, in determining the existence or absence of probable cause, the investigating officer shall examine
the complaint and documents in support thereof as well as the controverting evidence presented by the defense.
While the validity and merits of a partys defense or accusation and the admissibility of the testimonies and
evidence are best ventilated in a full blown trial, still, in a preliminary investigation, a proper consideration of
the complaint and supporting evidence as well as the controverting evidence, is warranted to determine the
persons who may be reasonably charged with the crime. The determination must be based on the totality of
evidence presented by both parties.
Prescinding from these premises, we find that the Justice Secretary did not abuse his discretion in
examining both the evidence presented by the complainant and the accused in determining the existence or the
lack of probable cause.

There is basis in his finding that no probable cause exists. The complaint and the 1979 Deed of Sale do
not connect petitioner with the crime of falsification. While the NBI report showed that the 1979 Deed of Sale
was falsified, there is no showing that petitioner was the author thereof. We cannot discern direct and personal
participation by the petitioner in the alleged forged deed. While a finding of probable cause rests on evidence
showing that, more likely than not, a crime has been committed and was committed by the accused, the
existence of such facts and circumstance must be strong enough to create a rational and logical nexus between
the acts and omissions and the accused.

The allegation that petitioner effectuated the illicit transfer of the disputed properties in his name is
without factual basis. He was not in possession of the alleged forged deed which does not even bore his
signature. We find merit in his contention that the subject properties were sold to him on March 10, 1991
considering that the new TCTs were issued in his name only on March 26, 1991. His address mentioned in the
1979 Deed of Sale was non-existent yet in 1979, thus giving the impression that it was executed on a later date.
It would be absurd for petitioner to use the 1979 Deed of Sale to facilitate the transfer on March 26, 1991
considering his possession of the March 10, 1991 Deed of Sale.

Respondents never denied the allegation that they assumed the obligation of transferring the Tanza
properties in petitioners name. Considering that they wanted to cancel the sale and that they were in possession
of the forged deed, it is not far-fetched to assume that they facilitated the transfer of the properties using the
allegedly 1979 forged deed. It appears that the conveyance of the questioned properties in favor of petitioner
was made at the instance of the respondents.

Torres has no reason to falsify the 1979 Deed of Sale when he had in his possession the 1991 Deed of
Sale which he claims to be authentic. By presenting the alleged forged deed of sale, respondents cast a cloud of
doubt on petitioners title. While motive is not reasonable basis in determining probable cause, the absence
thereof further obviates the probability of petitioners guilt.

Besides, Nelia Aguinaldo admitted in her letter dated November 12, 1998 the sale of the properties
although she wanted the sale cancelled. This admission is consistent with petitioners declaration that the sale
took place.

In their complaint, respondents claimed that they discovered the alleged illegal conveyance in November
2000. This was, however, belied by their Adverse Claim dated December 18, 1999 which appeared as Entry
No. 5856-115 and annotated on the new titles issued in the name of Torres in February 2000. [34] In November
1998, Nelia was claiming her share in the property that was sold by Torres to Porfirio and Yolanda Dones in
1993.[35]
[33]

In D.M. Consunji, Inc. v. Esguerra,[36] grave abuse of discretion is defined:

By grave abuse of discretion is meant, such capricious and whimsical exercise of
judgment as is equivalent to lack of jurisdiction. The abuse of discretion must be grave as where
the power is exercised in an arbitrary or despotic manner by reason of passion or personal
hostility and must be so patent and gross as to amount to an evasion of positive duty or to a
virtual refusal to perform the duty enjoined by or to act at all in contemplation of law.

The Secretary of Justice did not whimsically and capriciously exercise his discretion. His findings was
grounded on sound statutory and factual basis. Chief Justice Andres Narvasa in his separate opinion in Roberts,
Jr. v. Court of Appeals[37] declared that the determination of probable cause to warrant the prosecution in court
should be consigned and entrusted to the Department of Justice, as reviewer of the findings of the public
prosecutors. To do otherwise is to usurp a duty that exclusively pertains to an executive official.

In Noblejas v. Salas,[38] we reaffirmed the power of supervision and control of the department secretary
over his subordinate. We stated that the power of control therein contemplated means to alter, modify, or nullify
or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment
of the former for that of the latter. For, while it is the duty of the fiscal to prosecute persons who, according to
evidence received from the complainant, are shown to be guilty of a crime, the Secretary of Justice is likewise
bound by his oath of office to protect innocent persons from groundless, false or serious prosecution. He would
be committing a serious dereliction of duty if he orders or sanctions the filing of an information based upon a
complaint where he is not convinced that the evidence warrants the filing of the action in court.

We also find that the trial court independently assessed the merits of the motion to withdraw
information. Before it was granted, respondents were allowed to submit their opposition [39] and the petitioner to
comment[40] thereon, which were both considered. The trial judge also considered the basis of the Justice
Secretarys resolution before finding that no probable cause exists, thus:

The two DOJ Resolutions absolving the accused from incipient criminal liability were
premised on the ground that the herein accused had no participation in the preparation of the
alleged falsified Deed of Sale dated July 29, 1979, which deed, in effect, transferred ownership
of private complainants three parcels of land located in Tanza, Cavite to the accused. This
finding was based on the argument that it would be highly irregular for the accused to effect the
transfer of the property through a falsified deed when accused had in his possession a valid and
genuine Deed of Sale dated March 10, 1991 executed by the spouses-complainants transferring
ownership of the aforesaid property to him.
The court is inclined to grant the motion of the public prosecutor.
The issues which the court has to resolve in the instant case had been amply discussed in
the aforesaid resolutions of the DOJ and it is convinced that, indeed, no probable cause exists
against the accused.[41]

WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals dated March 22,
2004 is REVERSED and SET ASIDE. The resolution of the Secretary of Justice dated November 12, 2002
is REINSTATED. No costs.
SO ORDERED.

THIRD DIVISION
[G.R. No. 147615. January 20, 2003]
VIRGILIO SANTOS, petitioner, vs. THE PEOPLE OF THE PHILIPPINES, respondent.
DECISION
PUNO, J.:
Before us is a Petition for Review of the Court of Appeals [1] Decision dated October 19, 2000, in CA-G.R.
CR No. 18994, which found the accused, Virgilio Santos, guilty beyond reasonable doubt of the crime of
Attempted Rape.
On November 22, 1988, AAA filed with the Regional Trial Court of xxx a Criminal Complaint
against Virgilio Santos, charging him with Attempted Rape committed as follows:
That on or about the 10th day of May, 1987, in the municipality of xxx, province of xxx, Philippines, and within
the jurisdiction of this Honorable Court, the above-named accused did then and there wilfully, unlawfully and
feloniously commence the commission of rape directly by overt acts, by then and there forcing one AAA to
have sexual intercourse with him by dragging her to an uninhabited place and by means of force and violence;
embracing and kissing her, touching her private parts and even undressing her with intent of having carnal
knowledge of her; and if the accused was not able to accomplish his purpose, that is, to have carnal knowledge
of the said AAA, it was not because of his voluntary desistance but because of the intervention of a third party.
Contrary to law.[2]
On January 9, 1989, the accused was arraigned, and pleaded not guilty. Trial ensued.
The prosecution established the following facts:
On May 10, 1987, between 8:00 and 9:00 in the evening, the private complainant, AAA, an eighteen-year
old housewife, was on her way to buy a mosquito coil or katol from the store of BBB when she was grabbed by
the accused, Virgilio Santos, and pulled into a vacant lot. The accused covered her mouth, and then started
embracing and kissing her. He also touched her private parts. After forcibly raising the victims skirt and
removing her underwear, the accused lowered his own pants and briefs, and began poking the victims vagina
with his penis. AAA could only beg for mercy. She could not shout for help as the accused was holding a
bladed weapon. At this point, they heard AAAs mother-in-law, CCC, calling her name. The accused
immediately stood up and warned the victim not to tell anyone about what happened, otherwise, he would kill
her. Still holding the bladed weapon, the accused left.
AAA got up and headed home. She met her mother-in-law about 5 meters away from the place of the
incident. When the latter asked where she came from, AAA replied that she went to buy katol but the store was
already closed.
The following morning, AAA decided to tell her mother-in-law about the incident. She refused to tell her
husband for fear that he would kill the accused. She did tell him, however, two days after the incident. On the
same day, she was accompanied by her mother-in-law and reported the incident to the chairman of
the barangay. She also filed a complaint with the Municipal Trial Court of xxx, which, however, dismissed said
complaint for lack of probable cause. Private complainant appealed the dismissal to the Provincial Prosecutor
of Bulacan who likewise dismissed the complaint. Unfazed, the private complainant elevated her complaint to
the Secretary of the Department of Justice who reversed the earlier rulings and issued an Order directing the
Provincial Prosecutor of xxx to file an appropriate case against the accused.
In defense, the accused claims that from 4:00 to 6:00 p.m. on the day of the incident, he
played mahjong with BBB and two other persons in BBBs store. Then, he went home to his mother-in-laws
house, located just opposite the store.[3] At 6:30 in the evening, he returned to the store to pay for his merienda,
then went back home after thirty minutes, and never left again that evening.
The accused avers that the complaint was filed by AAA because of a rumor circulating in
their neighborhood that he embraced the latter. A misunderstanding between the wife of the accused and AAAs
mother-in-law developed. He presented witnesses - storeowner BBB and neighbor DDD - to corroborate his
testimony.[4]
On February 10, 1993, judgment was rendered by Judge EEE of the Regional Trial Court of xxx, Branch
xx, finding the accused guilty beyond reasonable doubt of the crime of attempted rape. The dispositive portion
of the Decision states:

WHEREFORE, judgment is hereby rendered finding the accused Virgilio Santos guilty beyond a (sic)
reasonable doubt of attempted rape with the aggravating circumstance ofnighttime and hereby sentences him to
suffer an indeterminate penalty of imprisonment of SIX (6) MONTHS AND ONE (1) DAY, as minimum, to
TEN (10) YEARS and ONE (1) DAY, as maximum, and to indemnify the complainant AAA the sum of ONE
THOUSAND THREE HUNDRED TWENTY (P1,320.00) PESOS, Philippine Currency, as actual expenses,
and the sum of SEVEN THOUSAND (P7,000.00) PESOS, Philippine Currency, as attorneys fees.
Costs againts the accused.
SO ORDERED.[5]
On February 22, 1993, the accused filed a Motion for New Trial or Reconsideration. Four days later, he
filed a Supplemental Motion for New Trial or Reconsideration, with attachedSinumpaang Salaysay or Sworn
Statements of private complainant AAA and witness CCC On April 21, 1993, the Regional Trial Court, through
pairing judge, Judge FFF, granted the motion and set aside the February 10, 1993 Decision, viz:
The Motion for New Trial with the Provincial Prosecutor interposing No Objection has been found to be
tenable. In view thereof, the evidence received in the proceedings of March 5, 1993 shall be taken and
considered together with the evidence already on record. Accordingly, the decision promulgated on February
10, 1993 is hereby set aside for a new judgment to be rendered therein.
SO ORDERED.[6]
On November 4, 1994, Judge GGG of the RTC of xxx, Branch xx, issued the following Order respecting
the pending case:
Pursuant to the Administrative Circular No. 14-94 of the Honorable Chief Justice Andres R. Narvasa, dated
September 14, 1994, authorizing Assisting Judges assigned to the Regional Trial Courts of the National Capital
Judicial Region and holding office at Judiciary Planning Development and Implementation Office (JPDIO),
Supreme Court, to assist in the resolution of inherited cases in Regions III, IV and V, and the communication to
the Court dated September 28, 1994 of Justice Oscar R. Victoriano, Consultant/National Coordinator, JPDIO,
Supreme Court that the records of the inherited cases in this sala be forwarded to the said office, let the
complete records of the above-entitled case, together with the transcripts of stenographic notes (TSNs) and the
exhibits, be forwarded to the Judiciary Planning Development Implementation Office, Supreme Court, Manila
for resolution/decision.
SO ORDERED.[7]
Assisting Judge HHH then rendered a Decision, dated June 6, 1995, on the inherited case, the dispositive
portion of which states, thus:
WHEREFORE, judgment is hereby rendered finding the accused VIRGILIO SANTOS, guilty beyond
reasonable doubt of the crime of Attempted Rape and sentences him to suffer an indeterminate prison term of
from four (4) years, two (2) months and one (1) day of prision correccional as minimum, to ten (10) years and
one (1) day of prision mayor as maximum, the same being fixed in its maximum period considering the
attendance of the aggravating circumstance of nighttime, in the absence of any mitigating circumstance, and to
indemnify the offended party AAA, the sum of P1,320.00 as actual expenses, and P7,000.00 for attorneys fees
and to pay the costs.
SO ORDERED.[8]
On appeal, the RTC Decision was affirmed in toto by the Court of Appeals. The accused moved to
reconsider but his motion was denied. Hence, this appeal where he raises the following assignments of error:
A. The Honorable Court of Appeals erred in not giving due credence to the affidavit of desistance of the private
complainant and her witness;
B. The Honorable Court of Appeals erred in disregarding the entries in the barangay blotter of xxx, as well as
the Police Blotter of PNP-xxx;
C. The Honorable Court of Appeals erred in ruling in favor of the appellee as to effect of the material
discrepancies in the sworn statements of the private complainant and her witnesses;
D. The Honorable Court of Appeals erred in disregarding the reason for the dismissal of the same case at the
Municipal Trial Court and the Provincial Prosecutors Office;
E. The Honorable Court of Appeals erred in appreciating nighttime as aggravating circumstance.[9]
The appeal is partly meritorious.

We will jointly resolve the first, second and fourth assignments of error. The accused contends that
credence should be given to the affidavits of desistance of the private complainant and her witness even though
filed after his conviction. The affidavits of desistance allegedly cast serious doubt on his criminal liability,
especially when taken in conjunction with the private complainants initial complaint entered in
the barangay and the police blotters, which contains no allegation of attempted rape. He also stressed the
dismissal of the complaint during the preliminary investigation by the municipal trial judge, and subsequently,
by the provincial prosecutor.
We are not convinced. It is settled that an affidavit of desistance made by a witness after conviction of the
accused is not reliable, and deserves only scant attention.[10] The affidavits of desistance filed by the private
complainant and her witness were executed twelve (12) days after the promulgation of judgment of conviction,
and are clearly mere afterthoughts. Hence, they cannot have the effect of negating a previous credible
declaration. As we held in the case of People vs. Dalabajan:[11]
A recantation does not necessarily cancel an earlier declaration. Like any other testimony, it is subject to the
test of credibility based on the relevant circumstances and especially thedemeanor of the witness on the
stand. Moreover, it should be received with caution as otherwise it could make solemn trial a mockery and
place the investigation of truth at the mercy of unscrupulous witnesses. [People vs. Davatos, 229 SCRA 647
(1994)]
xxx
xxx
xxx
We have previously held that mere retraction by a prosecution witness does not necessarily vitiate the original
testimony if credible. [People vs. Dulay, 217 SCRA 103 (1993)] The Court looks with disfavor upon
retractions of testimonies previously given in court. The rationale for the rule is obvious: Affidavits of
retraction can easily be secured from witnesses, usually through intimidation or for a monetary
consideration. Recanted testimony is exceedingly unreliable. There is always the probability that it will later
be repudiated. [Lopez vs. Court of Appeals, 239 SCRA 562 (1994)][12]
Rationalizing its unwillingness to give weight to the belated affidavits, the trial court aptly held, viz:
Besides, the affidavits of retraction of both the offended party and her mother-in-law, BBB, had not been
subjected to an exhaustive and probing cross-examination, if only to discover the motives that prompted
complainant to repudiate her open court declarations and previous written statement executed before Municipal
Judge III. Had the desistance of offended party come at a seasonable time at least before she had told
everything on the witness stand that convinced the trial judge and this Court of her sincerity, or had the accused
thought of and earnestly sought the cooperation of offended party before the full dress presentation of
prosecution evidence, it would have been less difficult for the court to set aside its judgment of conviction. But
here lies already before the Court, a quantum of evidence supportive of the accuseds guilt that is beyond
obliteration or capable of being expunged from the courts record, without committing a miscarriage of justice or
judicial anomaly.[13]
The accused contends that the entries of AAAs complaint in the barangay and the police blotters prove the
innocence of the accused of the crime charged.
The entry in the barangay blotter provides, viz:
Si AAA ay nagreklamo sa punong barangay na siya ay niyakap ni Ver noong Linggo ng gabi sa pagitan ng alas
8:00 at alas 9:00 ng gabi, Mayo 10, 1987.[14]
On the other hand, the certification of the entry in the police blotter provides the following:
ACT OF LASCIVIOUSNESS The person of Mrs. AAA, 19 years old, married, of Bgy. xxx, this [municipality]
complained to this [Headquarters] one @ Ver Santos of Bgy. xxx, this [municipality], for Act of
Lasciviousness. According to reportee, suspect forcibly touch (sic) the different parts of her body and threaten
(sic) her to kill (sic). Incident happened atBgy. xxx, this [municipality] on 10 May 87, between the hour (sic) of
2000H and 2100H.
(SGD.) AAA
RECORDED BY:
PAT. ROLANDO B. RONQUILLO INP
Desk Officer[15]
The above reports may be wanting in details of the incident, but they do not negate the charge of attempted
rape. The entry in the barangay blotter merely states that private complainant was embraced (niyakap) by the

accused. This may be attributed to inaccurate reporting or to the victims incomplete narration of events,
whether or not intentionally done. Well-known is the Filipina trait of being shy and coy, not readily prone to
reveal any violation against her private person such as rape due to concomitant shame and embarrassment.
[16]
There might have also been a lack of fair opportunity for the victim to narrate her full story. The
incompleteness and inaccuracy of reports in the barangay and police blotters inspired our ruling in the case
of Santiago vs. Court of Appeals,[17] viz:
xxx [T]he entries in the police blotter should not be given significance or probative value, as they do not
constitute conclusive proof of the truth thereof. These entries are usually incomplete and inaccurate, as
[s]ometimes they are taken from either partial suggestion or inaccurate reporting and are hearsay, untested in the
crucible of a trial on the merits.[18]
Next, the accused argues that the dismissal of the complaint by the municipal trial court, and subsequently,
by the provincial prosecutor, during its preliminary investigation, should be taken into account in determining
whether the accused is criminally liable. The appellate court dismissed the contention with the following
ruling, viz:
It may be stated that although the instant case had been earlier dismissed during its preliminary investigation
and said dismissal was later sustained by the provincial prosecutor, said case however was allowed to
be refiled by the Department of Justice upon appeal of the dismissal of the case thereto.
The previous dismissal of the case during its preliminary investigation stage before the fiscal is immaterial for
the records gathered therein do not even form part of the present records of the present case. Section 8, Rule 112
of the Rules on Criminal Procedure provides:
Sec. 8. Record of preliminary investigationThe record of preliminary investigation whether conducted by a
judge or a fiscal shall not form part of the record of the case in the Regional Trial Court. However, the said
court, on its own initiative or that of any party may order the production of the record or any part thereof
whenever the same shall be necessary in the resolution of the case or any incident therein, or shall be introduced
as evidence by the party requesting for its production.[19]
In the case of People vs. Crispin,[20] this Court held that the record of the preliminary investigation does not
form part of the regional trial court records unless introduced as evidence during the trial. Absent such
introduction, the records of preliminary investigation cannot be treated as evidence in court; neither may the
trial court be compelled to take judicial notice of the same. [21] A careful review of the records of this case,
however, will show that the accused presented, and formally offered as evidence, [22] the records of the
preliminary investigation. Nonetheless, we remain unconvinced that these records will exculpate the
accused. The dismissal of the case by the investigating municipal trial judge and by the provincial prosecutor
was based on the report in the barangay blotter which we earlier held as highly unreliable and undeserving of
any probative value. For good reasons, the dismissal of the case was reversed by the Secretary of Justice.
On the second assignment of error, the accused contends that the material discrepancies in the sworn
statements of the private complainant and her mother-in-law, CCC, erode their credibility. He alleges that in
their sworn statements before Patrolman JJJ of the xxx Police Station and in their answer to the inquiry of the
municipal trial judge during the preliminary investigation, both the private complainant and her mother-in-law
claimed that it was on the day after the incident that the private complainant revealed to her mother-in-law
about the incident. However, in their sworn statements before the provincial prosecutor, they claimed that the
private complainant told her mother-in-law about the incident right after it occurred. Also, the statements made
by BBB before the police officer in xxx and the investigating judge were to the effect that she met her daughterin-law on the street, coming from the vacant lot where the incident happened. She declared before the
provincial prosecutor, however, that she found her daughter-in-law in the place where she also saw the accused
emerge.[23]
Time and again, we hold that not all kinds of discrepancies and inconsistencies in testimonies have the
effect of discrediting a witness. On the contrary, some discrepancies may actually strengthen the witness
credibility as they erase the suspicion of a rehearsed testimony. [24] These are the discrepancies and
inconsistencies which refer to minor details outside the essential elements of the crime charged.[25]
In the case at bar, the alleged discrepancies and inconsistencies refer to the time and place when the private
complainant met and told her mother-in-law about the incident. These are mere collateral matters
inconsequential in the determination of the criminal liability of the accused. More important is the spontaneous,

categorical and straightforward testimony of the private complainant on the violation against her person. She
never faltered in her narration of the essential elements of the subject offense, whether before the investigating
judge or prosecutor, or the trial judge.
We quote the pertinent portions of the private complainants testimony during the trial of the case, to wit:
DIRECT EXAMINATION OF THE WITNESS BY ATTY. KLIATCHKO:
Q. AAA, do you know the accused in this case, Virgilio Santos?
A. Yes, sir.
Q. If he is in Court now, will you please point to him?
A. He is there, sir.
(Witness pointing to a person who responded by the name Virgilio Santos.)
Q. Why do you know the accused in this case, Virgilio Santos?
A. Because our house is near their house, sir.
Q. Do you know this accused Virgilio Santos already on May 10, 1987?
A. Yes, sir.
Q. On May 10, 1987, between the hours of 8:00 to 9:00 in the evening, where were you?
A. I was then on a path going towards the store of BBB, sir.
Q. Where is the store of BBB?
A. xxx, sir.
Q. What is the relation of this xxx to xxx, the place where you said of your (sic) you reside as you
said a while ago?
A. These two places were near each other, sir.
Q. While you were [as] you said on the path leading towards the store of BBB was there anything
unusual that happened?
A. While I was then walking on the path towards the store of BBB, this Virgilio Santos suddenly
grabbed me, touched my (sic) delicate parts of my body, kiss (sic) me, embraced me, and in doing
so (sic) he removed his pants while he was removing his pant (sic) he was forecibly (sic) trying to
insert his organ into mine, sir.
Q. When you said he removed his pants, what do you mean by that?
A. After removing his pants, he suddenly laid on top of me, sir.
Q. When you said that he was trying to lay (sic) on top of you, what was your position?
A. I was then leaning on the rice paddy, sir (Pilapil) (sic).
Q. Now, when he was trying to insert his private organ on (sic) your private organ, what was the
condition of your dress?
A. My skirt was raised up, because it was raised up by him, sir.
Q. Now, when he was trying to insert his private organ on (sic) your private organ, what was the
condition of his pants?
A. His pants was placed lower, sir.
Q. Up to what place of (sic) part of his body was his pants lowered?
A. On the thigh, sir.
Q. Now, you stated that you were kissed [,] on what part of your body were you kissed by the
accused?
A. On the face, the lips and the neck, sir.
Q. You stated also that the accused touched your private parts [,] which private parts of your body
were touched by the accused?
A. Breast, my nipple, and my private organ, sir.
Q. You stated that you were embraced by the accused, will you kindly illustrate or demonstrate to his
(sic) Court how you were embraced by the accused?
A. We are (sic) both standing and while I was in front of the accused and my back towards him, he
suddenly embraced me from behind then turned my right since (sic) towards hin (sic) and touched
my private organ, sir.
Q. After you were embraced [,] touch (sic) on your private parts and kiss (sic) you in the way you
have just demonstrated to this Honorable Court [,] after that what happened?

A. He threw (Binuwal) me to the rice paddy (Pilapil) where I was made to lean, sir.
Q. After you were embraced, kissed and touched your (sic) private parts and then you were made to
lean on the rice paddy then, what happened after that?
A. He laid on top of me and then after he removed his pants he put out (sic) his private organ poke
(sic) (Itinutok) to my private organ, sir.
Q. Now, when you said he removed his pants which you have described here before
the Honorable Court by putting down up (sic) to his thight (sic), what kind of pants was he
wearing?
A. A hard pants (sic), sir.
Q. And how long is this hard pants?
A. Short pants, sir.
Q. Now, and after (sic) he was trying to poke or insert his private parts on (sic) your private part (sic)
while you were on a leanning (sic) position on the rice paddy, what happened?
ATTY. LIWANAG:
Now, I will object to the word insert because there is no word ipinasok she said itinutok.
COURT:
Let the witness answer.
A. While he was trying to insert his organ upon (sic) my organ [,] I was asking mercy from him and
then at that moment he heard a voice coming from my mother-in-law, sir.
Q. Why did you say that the accused heard (sic) the voice of your mother-in-law?
A: He suddenly released his hold upon (sic) my body and afterwards he even threatened me not to
tell anybody because if I will do so he will kill me, sir.[26]
We also accord respect to the trial courts finding of credibility in the persons and testimonies of the private
complainant and her witness. Rudimentary is the rule that matters of assessing and assigning values to the
testimonies of witnesses is best and most competently performed by a trial judge who has the unique
opportunity to observe the behavior, demeanorand conduct of the witness at the stand.[27] Thus, absent any
showing that the trial court has overlooked some material facts or gravely abused its discretion, this Court will
not interfere with its assessment of the credibility of the witnesses.[28] Although it may be argued that this case
was merely inherited by Judge HHH, we note that his decision is in accord with that of the judge who originally
tried this case, EEE.
Finally, we consider the defense of alibi. The accused claims to be in the house of his mother-in-law as
early as 7:00 p.m. on the day of the incident, and that he never went out of the house again that evening. We
find this alibi weak and unconvincing. For alibi to prosper, it must preclude any doubt on the physical
impossibility of the presence of the accused at the scene of the crime or its vicinity. [29] In this case, the house of
the accuseds mother-in-law is just opposite the store[30] of BBB, which is only about 8 to 12 meters away from
the vacant lot where the incident happened.[31] The accused could have left the house of his mother-in-law
sometime between 8:00 and 9:00 p.m., committed the crime (which according to the victim lasted for only
about 5 minutes)[32] and returned to the house unnoticed.
Anent the aggravating circumstance of nighttime, we note that this is not even alleged in the
information. Sections 8 and 9 of Rule 110 of the Revised Rules of Criminal Procedure provide, thus:
Sec. 8. Designation of the Offense.The complaint or information shall state the designation of the offense given
by the statute, aver the acts or omissions constituting the offense, and specify its qualifying and aggravating
circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of
the statute punishing it.
Sec. 9. Cause of the accusation.The acts or omissions complained of as constituting the offense and the
qualifying and aggravating circumstances must be stated in ordinary and concise language and not necessarily
in the language used in the statute but in terms sufficient to enable a person of common understanding to know
what offense is being charged as well as its qualifying and aggravating circumstances and for the court to
pronounce judgment.
According to the foregoing provisions, any circumstance that would qualify or aggravate the crime charged
must be specified in the information. Following the established rule that a penal statute, whether substantive or
procedural, shall be given a retroactive effect if favorable to the accused,[33] we hold that

the aforequoted provisions are applicable to this case, and accordingly, rule that the aggravating circumstance
of nighttime cannot be appreciated.
WHEREFORE, the assailed Decision of the Court of Appeals dated October 19, 2000, affirming the
Decision dated June 6, 1995 of the Regional Trial Court of xxx, Branch xxx which found the
accused, Virgilio Santos, guilty beyond reasonable doubt of the crime of Attempted Rape, is hereby
AFFIRMED with MODIFICATION that the accused is sentenced to an indeterminate penalty of two (2) years,
four (4) months and one (1) day of prision correccional medium, as the minimum penalty, and eight (8) years
and one (1) day of prisionmayor medium, as the maximum penalty.
SO ORDERED.
Panganiban, Sandoval-Gutierrez, Corona and Carpio-Morales, JJ., concur.