NICK ANGELO B.

CUNANAN
CRIMINAL PROCEDURE – SUN – 9:00AM – 12:00 PM

The Case - PAUL G. ROBERTS, JR., RODOLFO C. SALAZAR, LUIS LORENZO, SR.,
LUIS LORENZO, JR., AMAURY R. GUTIERREZ, BAYANI N. FABIC, JOSE YULO, JR.,
ESTEBAN B. PALANNUAYAN, and WONG FONG FUI, petitioners, vs. THE COURT OF
APPEALS, THE HON. MAXIMIANO ASUNCION, in his capacity as the Presiding Judge
of the Regional Trial Court, Quezon City, Branch 104, HON. APOLINARIO G. EXEVEA,
HON. HENRICK F. GINGOYON, and HON. PHILIP A. AGUINALDO, in their capacities
as Members of the Department of Justice “349” Committee, and the CITY
PROSECUTOR OF QUEZON CITY, respondents, G.R. No. 113930, March 5, 1996

Facts - Pepsi Cola Products Phils., Inc. had a Number Fever Promotion where
“all holders of crowns and/or caps of Pepsi products bearing the winning 3-digit
number will win the prize printed on the crown/cap. On May 25, 1992, it was
announced that the winning number for the next day was “349”. Several thousand
holders of “349” went then to Pepsi to redeem but Pepsi refused to pay. These
holders filed complaints for estafa against the officers of Pepsi.
After several procedural maneuvers by petitioners’ counsel (including a
petition for review with the Secretary of Justice on the finding of Probable Cause by
the prosecutor), respondent Judge denied the Motion to Suspend Proceedings and to
Hold in Abeyance Issuance of Warrants of Arrest and the Motion to Defer
arraignment, and directed the issuance of the warrants of arrest and setting the
arraignment.
Petitioners filed a certiorari with Court of Appeals (CA) with application for
Temporary Restraining Order (TRO) against Judge Asuncion alleging Grave Abuse of
Discretion. CA granted TRO. However, with the issuance of the decision of the
Secretary of Justice dismissing the petition for review, the CA dismissed the case as
moot and their Motion for Reconsideration was denied.
Petitioners filed instant petition alleging that Judge Asuncion committed Grave
Abuse of Discretion in ordering the issuance of warrants of arrest without examining
the records of the preliminary investigation

ISSUES – (A) Does the respondent judge acted with Grave Abuse of
Discretion in issuing the warrants of arrest without examination of preliminary
investigation records. (B) May the Supreme Court determine in a petition for
certiorari the existence of probable cause either for the issuance of warrants of
arrest against the petitioners or for their prosecution for estafa.
HELD – (A) YES. Under existing laws, warrants of arrest may be issued
(1) by the Metropolitan Trial Courts (MeTCs) except those in NCR, Municipal Trial
Courts (MTCs), and Municipal Circuit Trial Courts (MCTCs) in cases falling within their
exclusive original jurisdiction; in cases covered by the rule on summary procedure
where the accused fails to appear when required; and in cases filed with them which
are cognizable by the Regional Trial Courts (RTCs); and
(2) by the Metropolitan Trial Courts in NCR(MeTCs-NCR) and the RTCs in cases
filed with them after appropriate preliminary investigations conducted by officers
authorized to do so other than judges of MeTCs, MTCs and MCTCs.
As to the first, a warrant can issue only if the judge is satisfied after an
examination in writing and under oath of the complainant and the witnesses, in the
form of searching questions and answers , that a probable cause exists and that
there is a necessity of placing the respondent under immediate custody in order not
to frustrate the ends of justice.
As to the second, this Court held in Soliven vs. Makasiar that the judge is not
required to personally examine the complainant and the witnesses, but “he shall: (1)
personally evaluate the report and supporting documents submitted by the fiscal
regarding the existence of probable cause and, on the basis thereof, issue a warrant
of arrest; or (2) if on the basis thereof he finds no probable cause, he may disregard
the fiscal’s report and require the submission of supporting affidavits of witnesses to
aid him in arriving at a conclusion as to the existence of probable cause.”
Xxx “otherwise judges would be unduly laden with the preliminary examination
and investigation of criminal complaints instead of concentrating on hearing and
deciding cases filed before their courts.” It must be emphasized that judges must
not rely solely on the report or resolution of the fiscal (now prosecutor); they must
evaluate the report and the supporting documents. XXX in People vs. Inting “the
affidavits, the transcripts of stenographic notes (if any), and all other supporting
documents behind the Prosecutor’s certification which are material in assisting the
Judge to make his determination of probable cause.
The determination of probable cause is a function of the Judge . It is not for the
Provincial Fiscal or Prosecutor nor the Election Supervisor to ascertain. Only the
Judge and the Judge alone makes this determination. Moreover, the preliminary
inquiry made by a Prosecutor does not bind the Judge . It merely assists him to make
the determination of probable cause. The Judge does not have to follow what the
Prosecutor presents to him. By itself, the Prosecutor’s certification of probable cause
is ineffectual. It is the report, the affidavits, the transcripts of stenographic notes (if
any), and all other supporting documents behind the Prosecutor’s certification which
are material in assisting the Judge to make his determination.

In the following case it was also stressed that:

Soliven vs. Makasiar: Judge does not have to personally examine the
complainant and his witnesses xxx. However, there should be a report and
necessary documents supporting the Fiscal’s bare certification. All of these should be
before the Judge.

Allado vs. Diokno: before issuing a warrant of arrest, the judge must satisfy
himself that based on the evidence submitted there is sufficient proof that a crime
has been committed and that the person to be arrested is probably guilty thereof

Webb vs. De Leon: before issuing warrants of arrest, judges merely determine
personally the probability, not the certainty of the guilt of an accused. In doing so,
judges do not conduct a de novo hearing to determine the existence of probable
cause. They just personally review the initial determination of the prosecutor finding
a probable cause to see if it is supported by substantial evidence.

The teachings then of Soliven, Inting, Lim, Allado, and Webb reject the
proposition that the investigating prosecutor’s certification in an information or his
resolution which is made the basis for the filing of the information, or both, would
suffice in the judicial determination of probable cause for the issuance of a warrant
of arrest.

Clearly, when respondent Judge Asuncion issued the assailed order of 17 May
1993 directing, among other things, the issuance of warrants of arrest, he had only
the information, amended information, and Joint Resolution as bases thereof. He did
not have the records or evidence supporting the prosecutor’s finding of probable
cause. And strangely enough, he made no specific finding of probable cause; he
merely directed the issuance of warrants of arrest “after June 21, 1993.” It may,
however, be argued that the directive presupposes a finding of probable cause. But
then compliance with a constitutional requirement for the protection of individual
liberty cannot be left to presupposition, conjecture, or even convincing logic.

(B) NO. Determination of probable cause not lodged with Supreme Court;
exceptions:
In criminal prosecutions, the determination of probable cause may either be an
executive or a judicial prerogative. XXX preliminary investigation should be
distinguished as to whether it is an investigation for the determination of a sufficient
ground for the filing of the information or it is an investigation for the determination
of a probable cause for the issuance of a warrant of arrest. The first kind is
executive in nature. It is part of the prosecution’s job. The second kind which is
more properly called preliminary examination is judicial in nature and is lodged with
the judge

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. This is consistent with the general rule that criminal prosecutions may
not be restrained or stayed by injunction, preliminary or final.

Doctrine Learned - In criminal prosecutions, the determination of probable

cause may either be an executive or a judicial prerogative. Preliminary investigation
should be distinguished as to whether it is an investigation for the determination of a
sufficient ground for the filing of the information or it is an investigation for the
determination of a probable cause for the issuance of a warrant of arrest. The first
kind of preliminary investigation is executive in nature. It is part of the prosecution's
job. The second kind of preliminary investigation which is more properly called
preliminary examination is judicial in nature and is lodged with the judge.