rule 110 po cases.pdf

7/27/2019 RULE 110 PO cases.pdf

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G.R. No. 102342 July 3, 1992

LUZ M. ZALDIVIA, petitioner,vs.HON. ANDRES B. REYES, JR., in his capacity as Acting Presiding Judge of the

Regional Trial Court, Fourth Judicial Region, Branch 76, San Mateo, Rizal, andPEOPLE OF THE PHILIPPINES, respondents.

CRUZ, J.:

The Court is asked to determine the applicable law specifying the prescriptive period forviolations of municipal ordinances.

The petitioner is charged with quarrying for commercial purposes without a mayor's

permit in violation of Ordinance No. 2, Series of 1988, of the Municipality of Rodriguez,in the Province of Rizal.

The offense was allegedly committed on May 11, 1990. 1 The referral-complaint of thepolice was received by the Office of the Provincial Prosecutor of Rizal on May 30, 1990.2 The corresponding information was filed with the Municipal Trial Court of Rodriguez onOctober 2, 1990. 3

The petitioner moved to quash the information on the ground that the crime hadprescribed, but the motion was denied. On appeal to the Regional Trial Court of Rizal,the denial was sustained by the respondent judge. 4

In the present petition for review on certiorari, the petitioner first argues that the chargeagainst her is governed by the following provisions of the Rule on Summary Procedure:

Sec. 1. Scope This rule shall govern the procedure in the Metropolitan Trial Courts,the Municipal Trial Courts, and the Municipal Circuit Trial Courts in the following cases:

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B. Criminal Cases:

1. Violations of traffic laws, rules and regulations;

2. Violations of rental law;

3. Violations of municipal or city ordinances;

4.All other criminal cases where the penalty prescribed by law for the offenses chargeddoes not exceed six months imprisonment, or a fine of one thousand pesos (P1,000.00),or both, irrespective of other imposable penalties, accessory or otherwise, or of the civilliability arising therefrom. . . . (Emphasis supplied.)


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Sec. 9. How commenced. The prosecution of criminal cases falling within the scope ofthis Rule shall be either by complaint or by information filed directly in court without needof a prior preliminary examination or preliminary investigation: Provided, however, That inMetropolitan Manila and chartered cities, such cases shall be commenced only by

information; Provided, further, That when the offense cannot be prosecuted de oficio, thecorresponding complaint shall be signed and sworn to before the fiscal by the offendedparty.

She then invokes Act. No. 3326, as amended, entitled "An Act to Establish Periods ofPrescription for Violations Penalized by Special Acts and Municipal Ordinances and toProvide When Prescription Shall Begin to Run," reading as follows:

Sec. 1. Violations penalized by special acts shall, unless provided in such acts, prescribein accordance with the following rules: . . . Violations penalized by municipal ordinancesshall prescribe after two months.

Sec. 2. Prescription shall begin to run from the day of the commission of the violation ofthe law, and if the same be not known at the time, from the discovery thereof and theinstitution ofjudicial proceedings for its investigation and punishment.

The prescription shall be interrupted when proceedings are instituted against the guiltyperson, and shall begin to run again if the proceedings are dismissed for reasons notconstituting jeopardy.

Sec. 3. For the purposes of this Act, special acts shall be acts defining and penalizingviolations of law not included in the Penal Code. (Emphasis supplied)

Her conclusion is that as the information was filed way beyond thetwo-month statutory period from the date of the alleged commission of the offense, thecharge against her should have been dismissed on the ground of prescription.

For its part, the prosecution contends that the prescriptive period was suspended uponthe filing of the complaint against her with the Office of the Provincial Prosecutor.

Agreeing with the respondent judge, the Solicitor General also invokes Section 1, Rule110 of the 1985 Rules on Criminal Procedure, providing as follows:

Sec. 1. How InstitutedFor offenses not subject to the rule on summary procedure inspecial cases, the institution of criminal action shall be as follows:

a) For offenses falling under the jurisdiction of the Regional Trial Court,

by filing the complaint with the appropriate officer for the purpose ofconducting the requisite preliminary investigation therein;

b) For offenses falling under the jurisdiction of the Municipal Trial Courtsand Municipal Circuit Trial Courts, by filing the complaint directly with thesaid courts, or a complaint with the fiscal's office. However, inMetropolitan Manila and other chartered cities, the complaint may befiled only with the office of the fiscal.


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In all cases such institution interrupts the period of prescription of the offensecharged.(Emphasis supplied.)

Emphasis is laid on the last paragraph. The respondent maintains that the filing of thecomplaint with the Office of the Provincial Prosecutor comes under the phrase "suchinstitution" and that the phrase "in all cases" applies to all cases, without distinction,including those falling under the Rule on Summary Procedure.

The said paragraph, according to the respondent, was an adoption of the followingdictum in Francisco v. Court of Appeals: 5

In view of this diversity of precedents, and in order to provide guidance for Bench andBar, this Court has re-examined the question and, after mature consideration, has arrivedat the conclusion that the true doctrine is, and should be, the one established by thedecisions holding that the filing of the complaint in the Municipal Court, even if it bemerely for purposes of preliminary examination or investigation, should, and does,interrupt the period of prescription of the criminal responsibility, even if the court wherethe complaint or information is filed can not try the case on its merits. Several reasons

buttress this conclusion: first, the text of Article 91 of the Revised Penal Code, indeclaring that the period of prescription "shall be interrupted by the filing of the complaintor information" without distinguishing whether the complaint is filed in the court forpreliminary examination or investigation merely, or for action on the merits. Second, evenif the court where the complaint or information is filed may only proceed to investigate thecase, its actuations already represent the initial step of the proceedings against theoffender. Third, it is unjust to deprive the injured party of the right to obtain vindication onaccount of delays that are not under his control. All that the victim of the offense may doon his part to initiate the prosecution is to file the requisite complaint.

It is important to note that this decision was promulgated on May 30, 1983, two monthsbefore the promulgation of the Rule on Summary Procedure on August 1, 1983. On the

other hand, Section 1 of Rule 110 is new, having been incorporated therein with therevision of the Rules on Criminal Procedure on January 1, 1985, except for the lastparagraph, which was added on October 1, 1988.

That section meaningfully begins with the phrase, "for offenses not subject to the rule onsummary procedure in special cases," which plainly signifies that the section does notapply to offenses which are subject to summary procedure. The phrase "in all cases"appearing in the last paragraph obviously refers to the cases covered by the Section,that is, those offenses not governed by the Rule on Summary Procedure. Thisinterpretation conforms to the canon that words in a statute should be read in relation toand not isolation from the rest of the measure, to discover the true legislative intent.

As it is clearly provided in the Rule on Summary Procedure that among the offenses itcovers are violations of municipal or city ordinances, it should follow that the chargeagainst the petitioner, which is for violation of a municipal ordinance of Rodriguez, isgoverned by that rule and not Section 1 of Rule 110.


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Where paragraph (b) of the section does speak of "offenses falling under the jurisdictionof the Municipal Trial Courts and Municipal Circuit Trial Courts," the obvious reference isto Section 32(2) of B.P. No. 129, vesting in such courts:

(2) Exclusive original jurisdiction over all offenses punishable with imprisonment of notexceeding four years and two months, or a fine of not more than four thousand pesos, or

both such fine and imprisonment, regardless of other imposable accessory or otherpenalties, including the civil liability arising from such offenses or predicated thereon,irrespective of kind, nature, value, or amount thereof; Provided, however, That inoffenses involving damage to property through criminal negligence they shall haveexclusive original jurisdiction where the imposable fine does not exceed twenty thousandpesos.

These offenses are not covered by the Rule on Summary Procedure.

Under Section 9 of the Rule on Summary Procedure, "the complaint or information shallbe filed directly in court without need of a prior preliminary examination or preliminaryinvestigation." 6 Both parties agree that this provision does not prevent the prosecutor

from conducting a preliminary investigation if he wants to. However, the case shall bedeemed commenced only when it is filed in court, whether or not the prosecutiondecides to conduct a preliminary investigation. This means that the running of theprescriptive period shall be halted on the date the case is actually filed in court and noton any date before that.

This interpretation is in consonance with the afore-quoted Act No. 3326 which says thatthe period of prescription shall be suspended "when proceedings are instituted againstthe guilty party." The proceedings referred to in Section 2 thereof are "judicialproceedings," contrary to the submission of the Solicitor General that they includeadministrative proceedings. His contention is that we must not distinguish as the law

does not distinguish. As a matter of fact, it does.

At any rate, the Court feels that if there be a conflict between the Rule on SummaryProcedure and Section 1 of Rule 110 of the Rules on Criminal Procedure, the formershould prevail as the special law. And if there be a conflict between Act. No. 3326 andRule 110 of the Rules on Criminal Procedure, the latter must again yield because thisCourt, in the exercise of its rule-making power, is not allowed to "diminish, increase ormodify substantive rights" under Article VIII, Section 5(5) of the Constitution.Prescription in criminal cases is a substantive right. 7

Going back to the Francisco case, we find it not irrelevant to observe that the decision

would have been conformable to Section 1, Rule 110, as the offense involved wasgrave oral defamation punishable under the Revised Penal Code with arresto mayorinits maximum period to prision correccionalin its minimum period. By contrast, theprosecution in the instant case is for violation of a municipal ordinance, for which thepenalty cannot exceed six months, 8 and is thus covered by the Rule on SummaryProcedure.


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charges of "Inciting to Sedition" against petitioners Lino Brocka, Benjamin Cervantes,Cosme Garcia and Rodolfo Santos, (hereafter Brocka, et al.). On learning that thecorresponding informations for this offense has been filed by the City Fiscal against them onFebruary 11, 1985, a supplemental petition was filed on February 19, 1985 (p. 51, Rollo) toimplead the Presiding Judge, 1 and to enjoin the prosecution of Criminal Cases Nos. Q-38023, Q-38024 and Q-38025 (p. 349, Rollo) and the issuance of warrants for their arrests,

including their arraignment. Since then President Ferdinand E. Marcos had ordered theprovisional release of Brocka, et al., the issue on habeas corpus has become moot andacademic (p. 396, Rollo). We shall thus focus on the question of whether or not theprosecution of the criminal cases for Inciting to Sedition may lawfully be enjoined.:-cralaw

Petitioners were arrested on January 28, 1985 by elements of the Northern Police Districtfollowing the forcible and violent dispersal of a demonstration held in sympathy with thejeepney strike called by the Alliance of Concerned Transport Organization (ACTO).Thereafter, they were charged with Illegal Assembly in Criminal Cases Nos. 37783, 37787and 37788 with Branch 108, Regional Trial Court, NCJR, Quezon City. 2

Except for Brocka, et al. who were charged as leaders of the offense of Illegal Assembly andfor whom no bail was recommended, the other petitioners were released on bail ofP3,000.00 each. Brocka, et al.'s provisional release was ordered only upon an urgent

petition for bail for which daily hearings from February 1-7, 1985 were held.

However, despite service of the order of release on February 9, 1985, Brocka, et al.remained in detention, respondents having invoked a Preventive Detention Action (PDA)allegedly issued against them on January 28, 1985 (p. 6, Rollo). Neither the original,duplicate original nor certified true copy of the PDA was ever shown to them (p. 367, Rollo).

Brocka, et al. were subsequently charged on February 11, 1985 with Inciting to Sedition,docketed as Criminal Cases Nos. Q-38023, Q-38024 and Q-38025 (p. 349, Rollo), withoutprior notice to their counsel (p. 7, Rollo). The original informations filed recommended nobail (p. 349, Rollo). The circumstances surrounding the hasty filing of this second offenseare cited by Brocka, et al. (quoting from a separate petition filed on their behalf in G.R. Nos.69848-50 entitled "Sedfrey A. Ordoez vs. Col. Julian Arzaga, et al."), as follows:

"x x x

"6. The sham' character of the inquest examination concocted by all respondents is starklybizarre when we consider that as early as 10:30 A.M. today, February 11, 1985, BenjaminCervantes was able to contact undersigned petitioner by phone informing counsel that saidBenjamin Cervantes and the 4 other persons who are the subjects of this petition will bebrought before the Quezon City Fiscal at 2:30 for undisclosed reasons: subsequently,another phone call was received by petitioning counsel informing him that the appearanceof Benjamin Cervantes et al. was to be at 2:00 P.M. When petitioning counsel arrived in theoffice of Assistant City Fiscal Arturo Tugonon, the complainants' affidavits had not yet beenreceived by any of the panel of three assistant city fiscals, although the five persons underdetention were already in the office of said assistant fiscal as early as 2:00 P.M. It was onlyat 3:00 when a representative of the military arrived bringing with him alleged statements

of complainants against Lino Broka (sic) et al. for alleged inciting to sedition, whereuponundersigned counsel asked respondent Colonel Agapito Abad 'who ordered the detainedpersons to be brought to the office of Assistant Fiscal Arturo Tugonon since there were nocharges on file;' and said Colonel Agapito Abad said aloud: 'I only received a telephone callfrom Colonel Arzaga about 11:00 A.M. to bring the detained persons today I am only thecustodian.' At 3:15, petitioning counsel inquired from the Records Custodian when thecharges against Lino Broka (sic) had been officially received and he was informed that thesaid charges were never coursed through the Records Office.


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"7. Under the facts narrated above, respondents have conspired to use the strong arm ofthe law and hatched the nefarious scheme to deprive Lino Broka (sic) et al. the right to bailbecause the utterances allegedly constituting inciting to sedition under Article 142 of theRevised Penal Code are, except for varying nuances, almost verbatim the same utteranceswhich are the subject of Criminal Cases No. 37783, 37787 and 37788 and for which saiddetained persons are entitled to be released on bail as a matter of constitutional right.

Among the utterances allegedly made by the accused and which the respondents claimed tobe violative of Article 142 of the Revised Penal Code are: 'Makiisa sa mga drivers, "Makiisasa aming layunin, "Digmaang bayan ang sagot sa kahirapan,' Itigil ang pakikialam ngimperyalismo sa Pilipinas,' 'Rollback ng presyo ng langis sa 95 Centavos.' (See Annex B)

"8. That when petitioning counsel and other members of the defense panel requested thatthey be given 7 days within which said counsel may confer with their clients the detainedpersons named above, the panel of assistant fiscals demanded that said detained personsshould sign a 'waiver' of their rights under Article 125 of the Revised Penal Code as acondition for the grant of said request, which is a harassing requirement considering thatLino Broka (sic) et al. were already under the detention, albeit illegally, and they could nothave waived the right under Rule 125 which they did not enjoy at the time the ruling wasmade by the panel of assistant city fiscals." (pp. 4-6, Rollo in G.R. 69848-50).

They were released provisionally on February 14, 1985, on orders of then President F. E.Marcos. The circumstances of their release are narrated in Our resolution dated January 26,1985, as quoted in the Solicitor General's Manifestation as follows:

"G.R. Nos. 69848-50 (Sedfrey A. Ordoez, Petitioner, vs. Col. Julian Arzaga, et al.,Respondents). Petitioner Sedfrey A. Ordoez filed this petition for habeas corpus in behalfof Lino Brocka, Benjamin Cervantes, Cosme Garcia, Alexander Luzano, and Rodolfo Santos,who were all detained under a Preventive Detention Action (PDA) issued by then PresidentFerdinand E. Marcos on January 28, 1985. They were charged in three separateinformations of the crime of illegal assembly under Art. 146, paragraph 3 of the RevisedPenal Code, as amended by PD 1834. On February 7, 1985, the Honorable Miriam DefensorSantiago, Regional Trial Judge of Quezon City, issued a resolution in the above criminalcases, directing the release of the five accused on bail of P6,000.00 for each of them, and

from which resolution the respondent fiscals took no appeal. Immediately thereafter, theaccused filed their respective bail bonds. This notwithstanding, they continued to be held indetention by order of the respondent colonels; and on February 11, 1985, these sameaccused were 'reinvestigated,' this time on charges of 'inciting to sedition' ** under Art. 142of the Revised Penal Code, following which corresponding cases were filed. The respondentscomplied with Our resolution requiring them, inter alia, to make a RETURN of the writ ofhabeas corpus. In their RETURN, it appeared that all the accused had already beenreleased, four of them on February 15, 1985 and one February 8, 1985. The petitioner,nevertheless, argued that the petition has not become moot and academic because theaccused continue to be in the custody of the law under an invalid charge of inciting tosedition." (p. 395, Rollo).

Hence, this petition.

Brocka, et al. contend that respondents' manifest bad faith and/or harassment are sufficientbases for enjoining their criminal prosecution, aside from the fact that the second offense ofinciting to sedition is illegal, since it is premised on one and the same act of attending andparticipating in the ACTO jeepney strike. They maintain that while there may be a complexcrime from a single act (Art. 48, RTC), the law does not allow the splitting of a single actinto two offenses and filing two informations therefor, further, that they will be placed indouble jeopardy.


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The primary issue here is the legality of enjoining the criminal prosecution of a case, sincethe two other issues raised by Brocka, et al. are matters of defense against the seditioncharge.

We rule in favor of Brocka, et al. and enjoin their criminal prosecution for the secondoffense of inciting to sedition.

Indeed, the general rule is that criminal prosecution may not be restrained or stayed byinjunction, preliminary or final. There are however exceptions, among which are:

"a. To afford adequate protection to the constitutional rights of the accused (Hernandezvs. Albano, et al., L-19272, January 25, 1967, 19 SCRA 95);

"b. When necessary for the orderly administration of justice or to avoid oppression ormultiplicity of actions (Dimayuga, et al. vs. Fernandez, 43 Phil. 304; Hernandezvs. Albano, supra; Fortun vs. Labang, et al., L-38383, May 27, 1981, 104 SCRA 607);

"c. When there is a pre-judicial question which is sub judice (De Leon vs. Mabanag, 70 Phil.202);

"d. When the acts of the officer are without or in excess of authority (Planas vs. Gil, 67 Phil.62);

"e. Where the prosecution is under an invalid law, ordinance or regulation (Youngvs. Rafferty, 33 Phil. 556; Yu Cong Eng vs. Trinidad, 47 Phil. 385, 389);

"f. When double jeopardy is clearly apparent (Sangalang vs. People and Avendia, 109 Phil.1140);

"g. Where the court has no jurisdiction over the offense (Lopez vs. City Judge, L-25795,October 29, 1966, 18 SCRA 616);

"h. Where it is a case of persecution rather than prosecution (Rustia vs. Ocampo, CA-G.R.No. 4760, March 25, 1960);

"i. Where the charges are manifestly false and motivated by the lust for vengeance (Rectovs. Castelo, 18 L.J. [1953], cited in Raoa vs. Alvendia, CA-G.R. No. 30720-R, October 8,

1962; Cf, Guingona, et al vs. City Fiscal, L-60033, April 4, 1984, 128 SCRA 577); and

"j. When there is clearly no prima facie case against the accused and a motion to quash onthat ground has been denied (Salonga vs. Pao, et al., L-59524, February 18, 1985, 134SCRA 438).

"7. Preliminary injunction has been issued by the Supreme Court to prevent the threatenedunlawful arrest of petitioners (Rodriguez vs. Castelo, L-6374, August 1, 1958)." (cited inRegalado, Remedial Law Compendium, p. 188, 1988 Ed.)

In the petition before Us, Brocka, et al. have cited the circumstances to show that thecriminal proceedings had become a case of persecution, having been undertaken by stateofficials in bad faith.: nad

Respondents, on the other hand, had invoked a PDA in refusing Brocka, et al.'s release fromdetention (before their release on orders of then Pres. Marcos). This PDA was, however,issued on January 28, 1985, but was invoked only on February 9, 1985 (upon receipt of thetrial court's order of release). Under the guidelines issued, PDAs shall be invoked within 24hours (in Metro Manila) or 48 hours (outside Metro Manila). (Ilagan v. Enrile, G.R. No.70748, October 28, 1985, 139 SCRA 349). Noteworthy also is Brocka, et al.'s claim that,despite subpoenas for its production, the prosecution merely presented a purported xeroxcopy of the invoked PDA (par. 4, Counter-Rejoinder, p. 367, Rollo).


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The foregoing circumstances were not disputed by the Solicitor General's office. In fact theyfound petitioner's plight "deplorable" (par. 51, Manifestation, p. 396, Rollo).

The hasty filing of the second offense, premised on a spurious and inoperational PDA,certainly betrays respondent's bad faith and malicious intent to pursue criminal chargesagainst Brocka, et al.

We have expressed Our view in the Ilagan case that "individuals against whom PDAs havebeen issued should be furnished with the original, and the duplicate original, and a certifiedtrue copy issued by the official having official custody of the PDA, at the time of theapprehension" (supra, p. 369).

We do not begrudge the zeal that may characterize a public official's prosecution of criminaloffenders. We, however, believe that this should not be a license to run roughshod over acitizen's basic constitutional lights, such as due process, or manipulate the law to suitdictatorial tendencies.

We are impelled to point out a citizen's helplessness against the awesome powers of adictatorship. Thus, while We agree with the Solicitor General's observation and/ormanifestation that Brocka, et al. should have filed a motion to quash the information, We,however, believe that such a course of action would have been a futile move, considering

the circumstances then prevailing. Thus, the tenacious invocation of a spurious andinoperational PDA and the sham and hasty preliminary investigation were clear signals thatthe prosecutors intended to keep Brocka, et al. in detention until the second offense of"Inciting to Sedition" could be facilitated and justified without need of issuing a warrant ofarrest anew. As a matter of fact the corresponding informations for this second offense werehastily filed on February 11, 1985, or two days after Brocka, et al.'s release from detentionwas ordered by the trial judge on February 9, 1985.

Constitutional rights must be upheld at all costs, for this gesture is the true sign ofdemocracy. These may not be set aside to satisfy perceived illusory visions of nationalgrandeur.: nad

In the case of J. Salonga v. Cruz Pao, We point out:

"Infinitely more important than conventional adherence to general rules of criminalprocedure is respect for the citizen's right to be free not only from arbitrary arrest andpunishment but also from unwarranted and vexatious prosecution . . ." (G.R. No. L-59524,February 18, 1985, 134 SCRA 438-at p. 448).

We, therefore, rule that where there is manifest bad faith that accompanies the filing ofcriminal charges, as in the instant case where Brocka, et al. were barred from enjoyingprovisional release until such time that charges were filed, and where a sham preliminaryinvestigation was hastily conducted, charges that are filed as a result should lawfully beenjoined.

ACCORDINGLY, the petition is hereby GRANTED. The trial court is PERMANENTLY ENJOINEDfrom proceeding in any manner with the cases subject of the petition. No costs.

SO ORDERED.

Fernan C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Gancayco,Padilla, Bidin, Sarmiento, Grio-Aquino and Regalado,JJ., concur.

Feliciano,J., is on leave.

July 31, 1984


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G.R. No. L-32849

QUIRICO A. ABELA, petitioner,

vs.

HONORABLE CESARIO C. GOLEZ, Judge, Court of First Instance of Capiz, Branch I,

and AGUSTIN ALMALBIS respondents.

RELOVA, J.:

Relova, J.:

Direct appeal by City Fiscal Quirico A. Abela, of Roxas City, from a decision dated August 27,

1970 of then Court of First Instance Judge Cesario C. Golez, compelling him to file the proper

action forestafa arising from the bouncing check Exhibit B. Without pronouncement as to

costs. (p. 41, Rollo)

On December 28, 1968, private respondent Agustin Almalbis filed with the Office of the CityFiscal of Roxas City a complaint forestafa against one Virginia Anisco. After conducting apreliminary investigation, herein petitioner Quirico A. Abela dismissed the complaint for lack

of merit. Thereafter, private respondent Almalbis commenced the action formandamus in the

Court of First Instance of Roxas City against herein petitioner Quirico A. Abela. In due coursesaid court rendered the above-mentioned decision. Hence, this appeal.

The findings of the petitioner are contained in his Order, from which we quote:

It appeared from the testimony of the complainant, that sometime in 1967, the complainant

entered into a business arrangement with the respondent, Virginia P. Anisco. The former, who is

both owner and operator of several fishing boats and fishponds, sends fish by the tons to therespondent to be sold at the Manila Divisoria Market. From the proceeds of such sales, which

were entirely supervised and controlled by the respondent, respondent got four per cent (4%)commission from the gross proceeds plus whatever expenses she has advanced as expenses in the

process. Respondent in turn has the obligation to remit the balance of the proceeds to the

complainant.

This business arrangement had continued for sometime at a more or less irregular interval of two

weeks to the satisfaction of both parties, until the respondent later became late and irregular in

her remittances of the balance of the proceeds due the complainant.

Remittances of the net proceeds were mostly done by respondent by sending her personal checksand later, when respondent had been late in her remittances, complainant proposed thatrespondent give him a check book, each and every check of which is presigned in blank. The

blanks corresponding to the amount and the payee to be filled in later by the complainant as the

value of the shipment is determined after each sale. This was done and the business againcontinued under the above arrangement. Then Checks Nos. 378389 dated September 16, 1968,

392377 dated October 20, 1968, 392379 dated October 29, 1968, 392380 dated October 30,

1968, and 392381 dated October 30, 1968 drawn on the Prudential Bank and Trust Company of


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Manila as prepared and filled in by the complainant were all dishonored for lack of funds, when

presented for payments by the complainant through the Roxas City Branch of the Philippine

National Bank.

The foregoing is the summary of the testimony of complainant, Agustin Almalbis. and with the

submission of his aforementioned exhibits, rested his case.

Respondent failed to appear on the dates scheduled for her turn and was considered to have

waived her rights to present evidence in her defense.

THE ISSUE

The question is, has the respondent committedEstafa by giving, presigned blank checks to the

complainant which were later dishonored by the bank for lack of funds, as defined under Art.

315 paragraph 2-d of the Revised Penal Code.

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There is a deceit when one is misled, either by guile or trickery or by other means, to believe to

be true what is really false.

When, therefore, the parties agreed to the arrangement, that the respondent give a check book, all

the individual checks contained therein already signed by the respondent as drawer in blank,leaving the complainant to fill in the payee and the amount to be drawn later after the amount is

determined after the sale of each shipment of fish consigned to the respondents such arrangementcan only be considered as an agreement for business convenience between those concerned and

no more.

Certainly, deceit can not be attributed to the respondent if the checks from the aforesaid checkbook under the control of the complainant, prepared and filled in by him as to the date, the payee

and amount, turned out to be dishonored as it did due to lack of funds for the simple reason, that

except for presigning the checks the respondent had no hand in the preparation of the same

thereby giving her no chance to determine the sufficiency of her original bank deposit or thenecessary amount for replenishment of such deposit.

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Considering, further, the element mentioned herein before, that the check dishonored must have

been issued in payment of an obligation contracted at the same time without which thetransaction would not have been consummated as held in the case of People vs. Obieta et al.

(CA-52 O.G. 065224), the inapplicability of the penal provision relied upon by the complainant

becomes glaringly clear.

That act of the respondent in signing the checks in blank, delivering the same to the complainantto be filled in later by the latter as to the date indicating the date of the issuance, the name of the

payee and the amount to be drawn, in payment for the costs of future shipments of fish to be sold


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at the Manila Market, can never be interpreted or considered as checks issued in the payment of

an obligation contracted at, the same time even by the wildest stretch of imagination. The law

contemplates, as ruled in the case of People vs. Obieta aforecited, of one uninterruptedtransaction. The consummation of the transaction and the issuance must be concurrent. (pp. 17,

20, 21, 22, Rollo)

The Honorable Judge Golez overruled petitioner, saying:

The first check so issued is PBTC (Prudential Bank and Trust Company) Check AD No. 378389,dated September 16, 1968, payable to the order of Mr. Agustin Almalbis in the amount of

P6,000.00 and signed by Virginia P. Anisco (Exhibit B).

The second check issued was PBTC Check AD No. 392377, dated October 20, 1968, payable to

the order of Cash in the amount of P3,637.05 and signed by Virginia P. Anisco. (Exhibit C).

The third check issued was PBTC Check No. 392379, dated October 29, 1968, payable to the

order of Agustin Almalbis in the amount of P3,426.85 and signed by Virginia P. Anisco. (ExhibitD).

The fourth and fifth checks issued were PBTC Check AD No. 392381, and PBTC Check AD No.

392380, both dated October 30, 1968, in the amount of P1,360.50 and P3,000.00, respectively,both payable to Cash both signed by Virginia P. Anisco. (Exhibits E and F).

It also appears that Virginia P. Anisco, the respondent mentioned in the aforementioned letter-

complaint Exhibit A, was handling the sales of the fish which the petitioner in Roxas City was

shipping from time to time to Manila where the said fish was sold by Virginia P. Anisco in the

Divisoria Market for which service Anisco was paid by Almalbis a commission of 4% on the

gross proceeds of the sales.

According to Almalbis it was their agreement that Anisco would remit to him here in Roxas Citythe net proceeds of the sales of fish made by Anisco in Manila after deducting her commission

and other incidental expenses therefrom.

The five checks Exhibits B, C, D, E and F adverted to elsewhere above represented the net

proceeds realized from the sales made by Virginia P. Anisco of the fish of Agustin Almalbis.

The petitioner Agustin Almalbis further narrated that the PBTC Check AD No. 378389, dated

September 16, 1968 (Exhibit B), was hand-carried by Amador Anisco, from Manila to Roxas

City where Amador delivered the said check Exhibit B to the said petitioner. Then Almalbisindorsed the check Exhibit B to the Philippine National Bank, Roxas City Branch, where it was

accepted for deposit only. Later on the check Exhibit E was returned to Almalbis, dishonored by

the Prudential Bank and Trust Company against which it had been drawn, for lack of funds.When the check Exhibit B had found its way back to Almalbis, the latter left for Manila to

inquire from Virginia why the said check bounced back. Virginia begged of him to give her a

little more time to get sufficient funds for The said check Exhibit B. But the funds never came.


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Meanwhile, and upon the plea of Virginia, the petitioner continued to make shipments of fish to

her, and as part of this new understanding, Virginia agreed to sign, as she signed, checks in blank

which she delivered to petitioner who was to fill the blanks therein with the amount and datecorresponding to the sales of fish made by Virginia and reported by her by telegram to said

petitioner. By virtue of this arrangement the checks Exhibits C, D, E and F were made out by

Almalbis himself by filling up the pre-signed blank checks provided him by Virginia. But thesaid checks Exhibits C, D, E and F also bounced back for lack of funds or for the reason ofExceeds Arrangements (Exhibit D-5 and E-5).

Almalbis declared that he placed all of the foregoing facts at the disposal of the respondent City

Fiscal Quirico Abela who conducted the preliminary investigation on his within mentioned

letter-complaint of 26th December 1968.

xxx xxx xxx

The instant petition is also a two-fold action, firstly, forcertiorari upon the ground that the

respondent Fiscal gravely abused his discretion in dismissing the within mentioned complaintwith the result that the petitioner herein has been deprived of his right as the aggrieved party in a

criminal transaction-and, secondly, formandamus to compel the said respondent to bring thecorresponding criminal action. The second phase of the action, i.e., mandamus, depends entirely

upon the success or failure of the first phase of the action, i.e., certiorari, in the sense that should

it be found that the respondent herein did gravely abuse his discretion in dismissing petitionerscomplaint mandamus would lie to rectify his error. (Bonilla, et al., vs. Sec. of Agriculture &

Natural Resources, L-20083, April 27, 1967).

In the given state of facts such as spelled out elsewhere above the right of the petitioner, with

specific reference to the check Exhibit B, cannot be said to be dubious, uncertain or nebulous,

but in fact well- defined, clear and certain, not at all found within the sphere of speculation orprobability, but is firmly secured within the realm of certainty, and this condition should entitlethe petitioner herein to a relief for official inaction obtainable through the extraordinary remedy

ofmandamus. (See the following cases: Aquino v. General Manager, GSIS, L-24859, Jan. 31,

1968; Aprueba et al. v. Ganzon, et al., L-20867, Sept. 3, 1966; Kwok Kam Lien v. Vivo, L-22354, Mar. 31, 1965; Alzate v. Aldana L-18085, May 1963; Villamor, et al. v. Lacson, et al., L-

15945, Nov. 28, 1964; People v. Orais, 65 Phil. 744, 747.)

While as already shown the discretion of the court will not ordinarily be controlled by

mandamus, it is not universally true that the writ will not issue to control such discretion or to

require a judicial tribunal to act in a particular way. Where the discretion of the court can belegally exercised in only one way, mandamus will lie to compel the court to exercise it; and in

some cases has been employed to correct the errors of inferior tribunals and to prevent a failure

of justice or irreparable injury where there is a clear right, and there is an absence of any

adequate remedy, as for instance where no appeal lies, or where the remedy by appeal isinadequate. It may also be employed to prevent an abuse of discretion or to correct an arbitrary

action which does not amount to the exercise of discretion. (Corpus Juris, sec. 85, pp. 608-609,

as quoted in People v. Orais,supra)


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So that where the fiscal filed an information for homicide over the insistence of the aggrieved

party that the crime committed was murder as shown by the declaration of witnesses disclosing

the presence of qualifying circumstances the Supreme Court ruled that his failure to file theproper information rendered the Fiscal subject to the writ ofmandamus. (Bernabe v. Bolinas, et

al., L-22000, Nov. 29, 1966.) (pp. 33, 35, 39, 4 1, Rollo)

There is merit in the appeal. The public prosecutor is entitled to use his judgment and discretion

in the appreciation of evidence presented to him and, in the exercise thereof, he may not be

controlled by mandamus. Whether an information should be filed in court is a matter address tothe sound discretion of the fiscal according to whether the evidence is in his opinion sufficient to

establish the guilt of the accused beyond a reasonable doubt.

Otherwise stated, the fiscal can not be compelled to act in a distinct manner whether to prosecute

or not to prosecute and, instead, is allowed to stand on his opinion and conviction, reserving

only to the Secretary, in any appropriate case when the latter believes public interest impels that

a different course of action should be taken, to temporarily relieve the fiscal of the duty to act by

designating somebody else to take his place solely and only for the purpose of such particularcase. Under Sections 1679 and 1689 of the Revised Administrative Code, in any instance

where a provincial or city fiscal fails, refuses or is unable, for any reason, to investigate orprosecute a case and, in the opinion of the Secretary of Justice it is advisable in the public

interest to take a different course of action, the Secretary may either appoint as acting provincial

or city fiscal, to handle the investigation or prosecution exclusively and only for such case, any

practicing attorney or some competent officer of the Department of Justice or office of any cityor provincial fiscal, with complete authority to act therein in all respects as if he were the

provincial or city fiscal himself, or appoint any lawyer in the government service or not in the

government service, temporarily to assist such city or provincial fiscal in the discharge of hisduties, with the same complete authority to act independently of and for such city or provincial

fiscal, provided that no such appointment may be made without first hearing the fiscal concerned

and never after the corresponding information has already been filed with the court by the

corresponding city or provincial fiscal without the conformity of the latter, except when it can bepatently shown to the court having cognizance of the case that said fiscal is intent on prejudicing

the interest of justice. The same sphere of authority is true with the prosecutor directed and

authorized under Section 3 of Republic Act 3783, as amended and/or inserted by Republic Act5184. (Estrella vs. Orendain Jr., 37 SCRA 640)

However, the matter of instituting an information should be distinguished from a motion by thefiscal for the dismissal of a case already filed in court. The judge may properly deny the motion

where, judging from the record of the preliminary investigation, there appears to be sufficient

evidence to sustain the prosecution. This is, as it should be, because the case is already in court

and, therefore, within its discretion and control.

But then, the question may be asked: What are the remedies of the offended party or complainant

when the prosecuting officer refuses or fails to file an information or to prosecute the criminalaction? As stated above, [i]n case the provincial fiscal should fail or refuse to act even when

there is sufficient evidence on which action may be taken, the offended party may take up the

matter with the Secretary of Justice who may then take such measures as may be necessary in the


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interest of justice under Section 1679 of the Revised Administrative Code. (Pagan vs.

Pasicolan, 103 Phil. 1143). He may also file with the proper authorities or courts criminal and

administrative charges against the prosecuting officer. As held in Bagatua vs. Revilla, 104 Phil.393, [w]hile it is the duty of the fiscal or the City Attorney, as prosecuting officer, to prosecute

persons who, according to the evidence received from the complainant; are shown to be guilty of

a crime, said officer is likewise bound by his oath of office to protect innocent persons fromgroundless, false or malicious prosecution. The prosecuting officer would be committing aserious dereliction of duty if he files the information based upon a complaint, where he is not

convinced that the sufficiency and strength of the evidence would warrant the filing of the action

in court against the accused. This duty of the prosecuting officer involves discretion, hence, itcannot be controlled by mandamus unless there has been a grave abuse thereof which is not

shown in the case at bar. Or, he may file a civil action for damages under Article 27 of the New

Civil Code.

WHEREFORE, the decision, dated August 27, 1970, of respondent judge is hereby SET ASIDE.

SO ORDERED.

Concepcion, Jr., Guerrero, Abad Santos, Melencio-Herrera, Plana, Gutierrez, Jr., De la Fuenteand Cuevas, JJ., concur.

Makasiar, J., concurs in the result.

Fernando, C.J., Escolin, Teehankee, JJ., took no part.

Separate Opinions

AQUINO, J., concurring:

I concur. As a general rule, mandamus does not lie to compel the fiscal to file an information

because that duty involves the exercise of discretion and judgment. It is not ministerial (Gonzales

vs. Serrano, L-25791, September 23, 1968, 25 SCRA 64; Vda. de Bagatua vs. Revilla, 104 Phil.

392; Gonzales vs. Court of First Instance of Bulacan, 63 Phil. 846; People vs. Natoza 100 Phil.533, 536; Alberto vs. De la Cruz, L-31839, June 30, 1980, 98 SCRA 406; Aquino vs. Mariano,

L-30485, May 31, 1984).

It is not fair to compel the fiscal to prosecute a person whose guilt may not, in his opinion, be

established with the evidence submitted to him (People vs. Santos, L-25413, October 31,

1969,30 SCRA 100).

But if the fiscal acts with grave abuse of discretion in not prosecuting the accused, he may be

compelled by mandamus to file the proper information.

For example, it is grave abuse of discretion on the fiscals part to file an information forhomicide only when the evidence presented before him warrants the firing of a murder charge


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because the killing was treacherous. He may be compelled by mandamus to file a charge for

murder (Bernabe vs. Bolinas, Jr., L-22000, November 29,1966. 18 SCRA 812).

Against the unjust action or inaction of a fiscal, the remedy is an appeal to the Minister of Justice

who has control of fiscals, or to file an administrative charge against him. (Presidential Decree

No. 1275, Reorganizing the Prosecution Staff; Circular No. 36 dated July 1, 1980, Ministry ofJustice; Estrella vs. Orendain Jr., L-19611, February 27, 1971, 37 SCRA 640; Noblejas vs. Salas,

L-31788, September 15, 1975, 67 SCRA 47; Caeg vs. Abad Santos, L-40044, March 10, 1975,

63 SCRA 96; Pangan vs. Pasicolan, 103 Phil. 1143 unpublished.)

Separate Opinions

AQUINO, J., concurring:

I concur. As a general rule, mandamus does not lie to compel the fiscal to file an informationbecause that duty involves the exercise of discretion and judgment. It is not ministerial (Gonzales

vs. Serrano, L-25791, September 23, 1968, 25 SCRA 64; Vda. de Bagatua vs. Revilla, 104 Phil.392; Gonzales vs. Court of First Instance of Bulacan, 63 Phil. 846; People vs. Natoza 100 Phil.533, 536; Alberto vs. De la Cruz, L-31839, June 30, 1980, 98 SCRA 406; Aquino vs. Mariano,

L-30485, May 31, 1984).

It is not fair to compel the fiscal to prosecute a person whose guilt may not, in his opinion, be

established with the evidence submitted to him (People vs. Santos, L-25413, October 31,

1969,30 SCRA 100).

But if the fiscal acts with grave abuse of discretion in not prosecuting the accused, he may be

compelled by mandamus to file the proper information.

For example, it is grave abuse of discretion on the fiscals part to file an information for

homicide only when the evidence presented before him warrants the firing of a murder chargebecause the killing was treacherous. He may be compelled by mandamus to file a charge for

murder (Bernabe vs. Bolinas, Jr., L-22000, November 29,1966. 18 SCRA 812).

Against the unjust action or inaction of a fiscal, the remedy is an appeal to the Minister of Justice

who has control of fiscals, or to file an administrative charge against him. (Presidential Decree

No. 1275, Reorganizing the Prosecution Staff; Circular No. 36 dated July 1, 1980, Ministry ofJustice; Estrella vs. Orendain Jr., L-19611, February 27, 1971, 37 SCRA 640; Noblejas vs. Salas,

L-31788, September 15, 1975, 67 SCRA 47; Caeg vs. Abad Santos, L-40044, March 10, 1975,

63 SCRA 96; Pangan vs. Pasicolan, 103 Phil. 1143 unpublished.)

G.R. No. L-39962 March 3, 1977

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs.RICARDO BERIALES, BENEDICTO CUSTODIO and PABLITO CUSTODIO, accused-appellants.


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R E S O L U T I O N

CONCEPCION JR., J .: t. hqw

The Court's attention has been called to the fact that the decision in this case has beeninterpreted in prosecution circles in such manner as may cause the obstruction of theadministration of justice. Hence, a clarification and a restatement of some of theprinciples therein involved are in order.

In this case, which involved a prosecution in the Court of First Instance, the Court ruled,inter alia, that the fiscal's duty to direct and control the prosecution of criminal casesrequires that he must be present during the proceedings; and that evidence presentedby the private prosecutor at a hearing, at which neither the fiscal nor his assistant orduly authorized special counsel was officially present, cannot be considered as

evidence for the People of the Philippines. This pronouncement, as can be clearlydeduced therefrom, applies to the trial and prosecution of criminal cases before theCourts of First Instance, Criminal Circuit Courts, and City Courts (which are provided bylaw with their own City Fiscals) only, and not to the municipal courts.

The procedure in the trial of criminal cases before the municipal courts and City Courtswhich do not have their own City Fiscals has not in any way been altered or modified bythe pronouncement in this case. Under Sec. 2, Rule 110 1 of the Revised Rules ofCourt, and in the light of the ruling in the cases ofP.P.I. vs. Alvarezand P.P.I. vs.Perez, et al., 2 police, constabulary, and other peace or law enforcement officers andprivate prosecutors may prosecute criminal cases in the said courts, but this authority

ceases upon actual intervention of the provincial or City Fiscal or their assistants, orupon the elevation of the case to the Court of First Instance.

Fernando (Chairman) and Antonio, JJ., concur.

Separate Opinions

BARREDO, J ., concurring:

I would like to add that there is no prohibition against the offended party undertaking theprosecution of the case.

AQUINO, J,:concurring:


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It should be noted that the rule in sec. 4, Rule 110 that "all criminal actions eithercommenced by complaint or by information shall be prosecuted under the direction andcontrol of the fiscal" was taken from U.S. vs. Despabiladeras, 32 Phil, 442, an adulterycase prosecuted in the Court of First Instance. Rule 123 prescribes the procedure ininferior courts, Section 4 of Rule 110 might have been based on the assumption that

criminal cases tried in inferior courts are appealable to the Court of First Instance,where a trial de novo is held and where the fiscal shall take charge of the cause inbehalf of the prosecution (Secs. 6 and 7, Rule 123).

Separate Opinions

BARREDO, J., concurring:

I would like to add that there is no prohibition against the offended party undertaking the

prosecution of the case.

AQUINO, J,: concurring:

It should be noted that the rule in sec. 4, Rule 110 that "all criminal actions eithercommenced by complaint or by information shall be prosecuted under the direction andcontrol of the fiscal" was taken from U.S. vs. Despabiladeras, 32 Phil, 442, an adulterycase prosecuted in the Court of First Instance. Rule 123 prescribes the procedure ininferior courts, Section 4 of Rule 110 might have been based on the assumption that

criminal cases tried in inferior courts are appealable to the Court of First Instance,where a trial de novo is held and where the fiscal shall take charge of the cause inbehalf of the prosecution (Secs. 6 and 7, Rule 123).

G.R. Nos. 74989-90 November 6, 1989

JOEL B. CAES, petitioner,vs.Hon. INTERMEDIATE APPELLATE COURT (Fourth Special Cases Division), Hon.ALFREDO M. GORGONIO, in his capacity as the Presiding Judge of the RegionalTrial Court of Caloocan City, Branch CXXV, National Capital Region and PEOPLE

OF THE PHILIPPINES, respondents.

Sanchez & Montebon Law Office for petitioner.

CRUZ, J.:


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We deal with a simple matter that should not detain us too long. Fittingly, we shalldecide it in favor of individual liberty rather than upon rebuttable presumptions anddubious implications.

The facts are simple and mostly undisputed.

On November 21, 1981, petitioner Joel Caes was charged in two separate informationswith illegal possession of firearms and illegal possession of marijuana before the Courtof First Instance of Rizal. 1 The cases were consolidated on December 10, 1981. 2

Arraignment was originally scheduled on January 11, 1982, but was for some reasonpostponed. 3

On August 31, 1982, Caes was arraigned and pleaded not guilty. 4 Trial was scheduledfor October 13, 1982, but this was reset upon agreement of the parties. 5

On November 15, 1982, the trial was again postponed for reasons that do not appear inthe record. 6

On December 20, 1982, the trial was again postponed because the prosecutionwitnesses were absent. 7

On January 19, 1983, the third resetting of the case was also canceled, no reasonappearing in the record. 8

On February 21, 1983, no trial could be held again, the because witnesses beingabsent. 9

On March 21, 1983, the trial was reset once more, again because the prosecutionwitnesses were absent. 10

On April 19, 1983, the trial of the case had not yet started. It was reset because theprosecution witnesses were again absent. 11

On June 3, 1983, a sheriffs return informed the trial court that the prosecutionwitnesses, namely, Capt. Carlos Dacanay and Sgt. Bonifacio Lustado had beenpersonally served with subpoena to appear and testify at the hearing scheduled on June6, 1983. 12

On June 6, 1983, the trial was again postponed, this time because there was no trialfiscal. 13

On July 12, 1983, trial was reset for lack of material time. 14

On September 6, 1983, The trial was once more reset by agree-judgment of the parties.15


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On October 19, 1983, the trial was reset to November 14, 1983. 16

On November 14, 1983, the prosecution moved for the provisional dismissal of the casebecause its witnesses had not appeared. On the same date, Judge Alfredo M. Gorgonioissued the following order:

In view of the failure of the prosecution witnesses to appear on several scheduledhearing and also for the hearing today which is an indication of lack of interest, uponmotion of the trial fiscal for the provisional dismissal of these cases and with theconformity of the accused, the above-entitled cases are hereby ordered ProvisionallyDismissed, with costs de oficio.

17

On January 9, 1984, a motion to revive the cases was filed by Maj. Dacanay (he hadbeen promoted in the meantime) and Sgt. Lustado who alleged that they could notattend the hearing scheduled on November 14, 1983, for lack of notice. 18 Copy of themotion was furnished the City Fiscal of Caloocan City but not the petitioner.

On May 18, 1984, the respondent judge issued the following order:

Acting on the "Motion for the Revival of the Case" dated December 5, 1983 filed by thecomplaining witnesses to which no opposition has been filed either by the Fiscal or thedefense, and considering that the dismissal of these cases was only provisional, forreasons stated in the motion, the same is granted.

WHEREFORE, let these cases be set anew for hearing on June 13, 1984 at 8:30 in themorning.

19

A motion for reconsideration filed by the petitioner dated June 7, 1984, was denied onOctober 9, 1984, and the revived cases were set from hearing on November 19, 1984.20

The petitioner questioned the judge's order on certiorari with this Court, which refferedhis petition to the respondent court. The petition there was dismissed for lack of merit onMay 20, 1986, and reconsideration was denied on June 17, 1986. 21 Caes then came tous again.

The present petition is based on two arguments, to wit: (a) that the motion to revive thecases was invalid because it was riot filed by the proper party nor was a copy served onthe petitioner; and (b) the revival of the cases would place the petitioner double

jeopardy in violation of the Bill of Rights.

We sustain the petitioner on both counts.

It is axiomatic that the prosecution of a criminal case is the responsibility of thegovernment prosecutor and must always be under his control. 22 This is true even if aprivate prosecutor is allowed to assist him and actually handles the examination of thewitnesses and the introduction of other evidence. 23The witnesses, even if they are thecomplaining witnesses, cannot act for the prosecutor in the handling of the case.


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Although they may ask for the filing of the case, they have no personality to move for itsdismissal or revival as they are not even parties thereto nor do they represent theparties to the action. Their only function is to testify. In a criminal prosecution, theplaintiff is represented by the government prosecutor, or one acting under his authority,and by no one else.

It follows that the motion for the revival of the cases filed by prosecution witnesses (whonever even testified) should have been summarily dismissed by the trial judge. Themere fact that the government prosecutor was furnished a copy of the motion and hedid not interpose any objection was not enough to justify the action of these witnesses.The prosecutor should have initiated the motion himself if he thought it proper. Thepresumption that he approved of the motion is not enough, especially since we aredealing here with the liberty of a person who had a right at least to be notified of themove to prosecute him again. The fact that he was not so informed made the irregularityeven more serious. It is curious that the motion was granted just the same, and ex parteat that and without hearing, and the petitioner's subsequent objection was brushed

aside.

On the second issue, the position of the public respondent is that double jeopardy hasnot attached because the case was only provisionally dismissed and it was with theconformity of the accused. The petitioner denies that he consented to the dismissal andsubmits that the dismissal was final notwithstanding its description.

Fittingly described as "res judicata in prison grey," the right against double jeopardyprohibits the prosecution of a person for a crime of which he has been previouslyacquitted or convicted. The purpose is to set the effects of the first prosecution foreverat rest, assuring the accused that he shall not thereafter be subjected to the danger and

anxiety of a second charge against him for the same offense.

It has been held in a long line of cases 24 that to constitute double jeopardy, there mustbe: (a) a valid complaint or information; (b) filed before a competent court; (c) to whichthe defendant had pleaded; and (d) of which he had been previously acquitted orconvicted or which was dismissed or otherwise terminated without his express consent.

There is no question that the first three requisites are present in the case at bar. Whatwe must resolve is the effect of the dismissal, which the petitioner contends finally andirrevocably terminated the two cases against him. His submission is that the dismissalwas not provisional simply because it was so designated, more so since he had notexpressly consented thereto.

It is settled that a case may be dismissed if the dismissal is made on motion of theaccused himself or on motion of the prosecution with the express consent of theaccused. 25 Such a dismissal is correctly denominated provisional. But a dismissal is notprovisional even if so designated if it is shown that it was made without the expressconsent of the accused. This consent cannot be presumed nor may it be merely impliedfrom the defendant's silence or his failure to object. As we have held in a number of


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cases, such consent must be express, so as to leave no doubt as to the defendant'sconformity. 26 Otherwise, the dismissal will be regarded as final, i.e., with prejudice tothe refiling of the case.

There are instances in fact when the dismissal will be held to be final and to dispose of

the case once and for all even if the dismissal was made on motion of the accusedhimself. The first is where the dismissal is based on a demurrer to the evidence filed bythe accused after the prosecution has rested. Such dismissal has the effect of a

judgment on the merits and operates as an acquittal. In People v. City of Silay, 27 forexample, the trial court dismissed the case on motion of the accused on the ground ofinsufficiency of the prosecution evidence. The government came to this Court oncertiorari, and the accused pleaded double jeopardy. Our finding was that the caseshould not have been dismissed because the evidence submitted by the prosecutionwas not insufficient. Even so, the petitioner had to be denied relief because thedismissal amounted to an acquittal on the merits which was therefore not appealable.Justice Muoz-Palma said: "However erroneous the order of the respondent Court is,

and although a miscarriage of justice resulted from said order, such error cannot now belighted because of the timely plea of double jeopardy."

The other exception is where the dismissal is made, also on motion of the accused,because of the denial of his right to a speedy trial. This is in effect a failure to prosecute.Concerning this right, the ruling in the old case ofConde v. Rivera28 is still validdoctrine. Here the prosecution was dismissed because the accused was made to"dance attendance on courts" and subjected to no less than eight unjustifiedpostponements extending over a year that unduly delayed her trial. In dismissing thecharges against her, Justice Malcolm declared for a unanimous Supreme Court:

On the one hand has been the petitioner, of humble station, without resources, butfortunately assisted by a persistent lawyer, while on the other hand has been theGovernment of the Philippine Islands which should be the last to set an example of delayand oppression in the administration of justice. The Court is thus under a moral and legalobligation to see that these proceedings come to an end and that the accused isdischarged from the custody of the law.

We lay down the legal proposition that, where a prosecuting officer, without good cause,secures postponements of the trial of a defendant against his protest beyond areasonable period of time, as in this instance for more than a year, the accused is entitledto relief ...

The case at bar is not much different from Conde. As the record shows, the petitioner

was arraigned on August 31, 1982, but was never actually tried until the cases weredismissed on November 14, 1983, following eleven postponements of the scheduledhearings, mostly because the prosecution was not prepared. The accused was neverabsent at these aborted hearings. He was prepared to be tried, but either the witnessesagainst him were not present, or the prosecutor himself was absent, or the court lackedmaterial time. Meantime, the charges against him continued to hang over his head evenas he was not given an opportunity to deny them because his trial could not be held.


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Under these circumstances, Caes could have himself moved for the dismissal of thecases on the ground of the denial of his right to a speedy trial. This would have been inkeeping with People v. Cloribel, 29 where the case dragged for almost four years due tonumerous postponements, mostly at the instance of the prosecution, and was finallydismissed on motion of the defendants when the prosecution failed to appear at the

trial. This Court held "that the dismissal here complained of was not truly a dismissal butan acquittal. For it was entered upon the defendants' insistence on their constitutionalright to speedy trial and by reason of the prosecution's failure to appear on the date oftrial."

The circumstance that the dismissal of the cases against the petitioner was describedby the trial judge as "provisional" did not change the nature of that dismissal. As it wasbased on the "lack of interest" of the prosecutor and the consequent delay in the trial ofthe cases, it was final and operated as an acquittal of the accused on the merits. Noless importantly, there is no proof that Caes expresslyconcurred in the provisionaldismissal. Implied consent, as we have repeatedly held, is not enough; neither may it be

lightly inferred from the presumption of regularity, forwe are dealing here with thealleged waiverof a constitutional right. Any doubt on this matter must be resolved infavor of the accused.

We conclude that the trial judge erred in ordering the revival of the cases against thepetitioner and that the respondent court also erred in affirming that order. Caes havingbeen denied his constitutional right to a speedy trial, and not having expresslyconsented to the "provisional" dismissal of the cases against him, he was entitled totheir final dismissal under the constitutional prohibition against double jeopardy. 30

The Court expresses its stern disapproval of the conduct in these cases of the Office of

the City Prosecutor of Caloocan City which reveals at the very least a lack ofconscientiousness in the discharge of its duties. The informations appear to have beenfiled in haste, without first insuring the necessary evidence to support them. Theprosecution witnesses repeatedly failed to appear at the scheduled hearings and all theprosecution did was to perfunctorily move for a resetting, without exerting earnestefforts to secure their attendance. In the end, it moved for the "provisional" dismissal ofthe cases without realizing, because it had not studied the matter more carefully, thatsuch dismissal would have the effect of barring their reinstatement. Characteristically, itwas also non-committal on the motion to revive the cases filed by the prosecutionwitnesses only, thereby surrendering, by its own silence, its authority in conducting theprosecution.

It is possible that as a result of its in attention, the petitioner has been needlesslymolested if not permanently stigmatized by the unproved charges. The other possibility,and it is certainly worse, is that a guilty person has been allowed to escape thepenalties of the law simply because he may now validly claim the protection of double

jeopardy. In either event, the responsibility clearly lies with the Office of the CityProsecutor of Caloocan City for its negligence and ineptitude.


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WHEREFORE, the petition is GRANTED. The challenged decision of the respondentcourt dated May 20, 1986, and the orders of the trial court dated May 18, 1984, andOctober 9, 1984, are SET ASIDE. The dismissal of Criminal Cases Nos. C-16411(81)and C-16412(81) is hereby declared as final.

Let a copy of this decision be sent to the Secretary of Justice.

SO ORDERED.

Narvasa, Gancayco, Grio-Aquino and Medialdea, JJ., concur.

G.R. No. L-53373 June 30, 1987

MARIO FL. CRESPO, petitioner,vs.HON. LEODEGARIO L. MOGUL, Presiding Judge, CIRCUIT CRIMINAL COURT OF

LUCENA CITY, 9th Judicial Dist., THE PEOPLE OF THE PHILIPPINES, representedby the SOLICITOR GENERAL, RICARDO BAUTISTA, ET AL., respondents.

GANCAYCO, J .:

The issue raised in this ease is whether the trial court acting on a motion to dismiss acriminal case filed by the Provincial Fiscal upon instructions of the Secretary of Justiceto whom the case was elevated for review, may refuse to grant the motion and insist onthe arraignment and trial on the merits.

On April 18, 1977 Assistant Fiscal Proceso K. de Gala with the approval of theProvincial Fiscal filed an information for estafa against Mario Fl. Crespo in the CircuitCriminal Court of Lucena City which was docketed as Criminal Case No. CCCIX-52(Quezon) '77.1 When the case was set for arraigment the accused filed a motion todefer arraignment on the ground that there was a pending petition for review filed withthe Secretary of Justice of the resolution of the Office of the Provincial Fiscal for thefiling of the information. In an order of August 1, 1977, the presiding judge, His Honor,Leodegario L. Mogul, denied the motion. 2A motion for reconsideration of the order wasdenied in the order of August 5, 1977 but the arraignment was deferred to August 18,1977 to afford nine for petitioner to elevate the matter to the appellate court. 3

A petition for certiorari and prohibition with prayer for a preliminary writ of injunction wasfiled by the accused in the Court of Appeals that was docketed as CA-G.R. SP No.06978. 4 In an order of August 17, 1977 the Court of Appeals restrained Judge Mogulfrom proceeding with the arraignment of the accused until further orders of the Court. 5In a comment that was filed by the Solicitor General he recommended that the petitionbe given due course. 6 On May 15, 1978 a decision was rendered by the Court of

Appeals granting the writ and perpetually restraining the judge from enforcing his threat


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to compel the arraignment of the accused in the case until the Department of Justiceshall have finally resolved the petition for review. 7

On March 22, 1978 then Undersecretary of Justice, Hon.Catalino Macaraig, Jr.,resolving the petition for review reversed the resolution of the Office of the Provincial

Fiscal and directed the fiscal to move for immediate dismissal of the information filedagainst the accused. 8A motion to dismiss for insufficiency of evidence was filed by theProvincial Fiscal dated April 10, 1978 with the trial court, 9 attaching thereto a copy ofthe letter of Undersecretary Macaraig, Jr. In an order of August 2, 1978 the privateprosecutor was given time to file an opposition thereto. 10 On November 24, 1978 theJudge denied the motion and set the arraigniment stating:

ORDER

For resolution is a motion to dismiss this rase filed by the procuting fiscal premised oninsufficiency of evidence, as suggested by the Undersecretary of Justice, evident fromAnnex "A" of the motion wherein, among other things, the Fiscal is urged to move for

dismissal for the reason that the check involved having been issued for the payment of apre-existing obligation the Hability of the drawer can only be civil and not criminal.

The motion's thrust being to induce this Court to resolve the innocence of the accused onevidence not before it but on that adduced before the Undersecretary of Justice, a matterthat not only disregards the requirements of due process but also erodes the Court'sindependence and integrity, the motion is considered as without merit and thereforehereby DENIED.

WHEREFORE, let the arraignment be, as it is hereby set for December 18, 1978 at 9:00o'clock in the moming.

SO ORDERED. 11

The accused then filed a petition for certiorari, prohibition and mandamus with petitionfor the issuance of preliminary writ of prohibition and/or temporary restraining order inthe Court of Appeals that was docketed as CA-G.R. No. SP-08777. 12 On January 23,1979 a restraining order was issued by the Court of Appeals against the threatened actof arraignment of the accused until further orders from the Court. 13 In a decision ofOctober 25, 1979 the Court of Appeals dismissed the petition and lifted the restrainingorder of January 23, 1979. 14 A motion for reconsideration of said decision filed by theaccused was denied in a resolution of February 19, 1980. 15

Hence this petition for review of said decision was filed by accused whereby petitioner

prays that said decision be reversed and set aside, respondent judge be perpetuallyenjoined from enforcing his threat to proceed with the arraignment and trial of petitionerin said criminal case, declaring the information filed not valid and of no legal force andeffect, ordering respondent Judge to dismiss the said case, and declaring the obligationof petitioner as purely civil. 16

In a resolution of May 19, 1980, the Second Division of this Court without giving duecourse to the petition required the respondents to comment to the petition, not to file a


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motiod to dismiss, within ten (10) days from notice. In the comment filed by the SolicitorGeneral he recommends that the petition be given due course, it being meritorious.Private respondent through counsel filed his reply to the comment and a separateconunent to the petition asking that the petition be dismissed. In the resolution ofFebruary 5, 1981, the Second Division of this Court resolved to transfer this case to the

Court En Banc. In the resolution of February 26, 1981, the Court En Bancresolved togive due course to the petition.

Petitioner and private respondent filed their respective briefs while the Solicitor Generalfiled a Manifestation in lieu of brief reiterating that the decision of the respondent Courtof Appeals be reversed and that respondent Judge be ordered to dismiss theinformation.

It is a cardinal principle that an criminal actions either commenced by complaint or byinformation shall be prosecuted under the direction and control of the fiscal. 17 Theinstitution of a criminal action depends upon the sound discretion of the fiscal. He may

or may not file the complaint or information, follow or not fonow that presented by theoffended party, according to whether the evidence in his opinion, is sufficient or not toestablish the guilt of the accused beyond reasonable doubt. 18 The reason for placingthe criminal prosecution under the direction and control of the fiscal is to preventmalicious or unfounded prosecution by private persons. 19 It cannot be controlled by thecomplainant. 20 Prosecuting officers under the power vested in them by law, not onlyhave the authority but also the duty of prosecuting persons who, according to theevidence received from the complainant, are shown to be guilty of a crime committedwithin the jurisdiction of their office. 21They have equally the legal duty not to prosecutewhen after an investigation they become convinced that the evidence adduced is notsufficient to establish aprima facie case. 22

It is through the conduct of a preliminary investigation 23that the fiscal determines theexistence of a puma facie case that would warrant the prosecution of a case. TheCourts cannot interfere with the fiscal's discretion and control of the criminalprosecution. It is not prudent or even permissible for a Court to compel the fiscal toprosecute a proceeding originally initiated by him on an information, if he finds that theevidence relied upon by him is insufficient for conviction. 24 Neither has the Court anypower to order the fiscal to prosecute or file an information within a certain period oftime, since this would interfere with the fiscal's discretion and control of criminalprosecutions. 25 Thus, a fiscal who asks for the dismissal of the case for insufficiency ofevidence has authority to do so, and Courts that grant the same commit no error. 26Thefiscal may re-investigate a case and subsequently move for the dismissal should the re-investigation show either that the defendant is innocent or that his guilt may not beestablished beyond reasonable doubt. 27 In a clash of views between the judge who didnot investigate and the fiscal who did, or between the fiscal and the offended party orthe defendant, those of the Fiscal's should normally prevail. 28On the other hand,neither an injunction, preliminary or final nor a writ of prohibition may be issued by thecourts to restrain a criminal prosecution 29except in the extreme case where it is


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necessary for the Courts to do so for the orderly administration of justice or to preventthe use of the strong arm of the law in an op pressive and vindictive manner. 30

However, the action of the fiscal or prosecutor is not without any limitation or control.The same is subject to the approval of the provincial or city fiscal or the chief state

prosecutor as the case maybe and it maybe elevated for review to the Secretary ofJustice who has the power to affirm, modify or reverse the action or opinion of the fiscal.Consequently the Secretary of Justice may direct that a motion to dismiss the rase befiled in Court or otherwise, that an information be filed in Court. 31

The filing of a complaint or information in Court initiates a criminal action. The Courtthereby acquires jurisdiction over the case, which is the authority to hear and determinethe case. 32 When after the filing of the complaint or information a warrant for the arrestof the accused is issued by the trial court and the accused either voluntarily submitedhimself to the Court or was duly arrested, the Court thereby acquired jurisdiction overthe person of the accused. 33

The preliminary investigation conducted by the fiscal for the purpose of determiningwhether aprima facie case exists warranting the prosecution of the accused isterminated upon the filing of the information in the proper court. In turn, as above stated,the filing of said information sets in motion the criminal action against the accused inCourt. Should the fiscal find it proper to conduct a reinvestigation of the case, at suchstage, the permission of the Court must be secured. After such reinvestigation thefinding and recommendations of the fiscal should be submitted to the Court forappropriate action. 34While it is true that the fiscal has the quasi judicialdiscretion todetermine whether or not a criminal case should be filed in court or not, once the casehad already been brought to Court whatever disposition the fiscal may feel should be

proper in the rase thereafter should be addressed for the consideration of the Court,

35

The only qualification is that the action of the Court must not impair the substantialrights of the accused. 36or the right of the People to due process of law. 36a

Whether the accused had been arraigned or not and whether it was due to areinvestigation by the fiscal or a review by the Secretary of Justice whereby a motion todismiss was submitted to the Court, the Court in the exercise of its discretion may grantthe motion or deny it and require that the trial on the merits proceed for the properdetermination of the case.

However, one may ask, if the trial court refuses to grant the motion to dismiss filed bythe fiscal upon the directive of the Secretary of Justice will there not be a vacuum in theprosecution? A state prosecutor to handle the case cannot possibly be designated bythe Secretary of Justice who does not believe that there is a basis for prosecution norcan the fiscal be expected to handle the prosecution of the case thereby defying thesuperior order of the Secretary of Justice.

The answer is simple. The role of the fiscal or prosecutor as We all know is to see thatjustice is done and not necessarily to secure the conviction of the person accused


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before the Courts. Thus, in spite of his opinion to the contrary, it is the duty of the fiscalto proceed with the presentation of evidence of the prosecution to the Court to enablethe Court to arrive at its own independent judgment as to whether the accused shouldbe convicted or acquitted. The fiscal should not shirk from the responsibility ofappearing for the People of the Philippines even under such circumstances much less

should he abandon the prosecution of the case leaving it to the hands of a privateprosecutor for then the entire proceedings will be null and void. 37 The least that thefiscal should do is to continue to appear for the prosecution although he may turn overthe presentation of the evidence to the private prosecutor but still under his directionand control. 38

The rule therefore in this jurisdiction is that once a complaint or information is filed inCourt any disposition of the case as its dismissal or the conviction or acquittal of theaccused rests in the sound discretion of the Court. Although the fiscal retains thedirection and control of the prosecution of criminal cases even while the case is alreadyin Court he cannot impose his opinion on the trial court. The Court is the best and sole

judge on what to do with the case before it. The determination of the case is within itsexclusive jurisdiction and competence. A motion to dismiss the case filed by the fiscalshould be addressed to the Court who has the option to grant or deny the same. It doesnot matter if this is done before or after the arraignment of the accused or that themotion was filed after a reinvestigation or upon instructions of the Secretary of Justicewho reviewed the records of the investigation.

In order therefor to avoid such a situation whereby the opinion of the Secretary ofJustice who reviewed the action of the fiscal may be disregarded by the trial court, theSecretary of Justice should, as far as practicable, refrain from entertaining a petition forreview or appeal from the action of the fiscal, when the complaint or information has

already been filed in Court. The matter should be left entirely for the determination ofthe Court.

WHEREFORE, the petition is DISMISSED for lack of merit without pronouncement as tocosts.

SO ORDERED.

Yap, Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Padilla,Bidin, Sarmiento and Cortes, JJ., concur.

Teehankee, C.J., took no part.

G.R. No. L-29129 May 8, 1975

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs.DOMINGO MABUYO, defendant-appellant.


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Office of the Solicitor General Felix V. Makasiar, Assistant Solicitor General Antonio G.Ibarra and Solicitor Hector C. Fule for plaintiff-appellee.

Domingo M. Angeles for defendant-appellant.

MAKALINTAL, C.J .:+. wph!1

This is an appeal from the decision of the Court of First Instance of Batangas in itsCriminal Case No. 2486 finding the accused Domingo Mabuyo guilty beyondreasonable doubt of the crime of murder, with treachery as the qualifying circumstance,and sentencing him to reclusion perpetua, with all the accessory penalties provided bylaw; to indemnify the heirs of the deceased Norberto Anillo in the sum of P6,000.00; andto pay the costs.

On June 18, 1966, at about midnight, Norberto Anillo was shot dead at the doorstep ofhis house in Bo. Ambulong, Tanauan, Batangas. Immediately thereafter a police teamheaded by Lt. Roque Garcia, Deputy Chief of Police of Tanauan, went to the scene ofthe incident and conducted an investigation. Fifteen empty carbine shells wererecovered from the premises. Agaton Anillo, the father of the deceased, and AdelaidaMirania, the widow, when interviewed by Lt. Garcia, declined to name the assailants butpromised to go to his office after the interment to disclose to him their identities.

Dr. Francisco M. Garcia, the Municipal Health Officer of Tanauan who performed thepost mortem examination of the deceased in the early morning of June 19, 1966, foundeleven (11) gunshot wounds on his body.

As promised, Agaton Anillo and Adelaida Mirania went to the Office of the Chief ofPolice of Tanauan on June 20 and submitted themselves to a formal investigation. Intheir respective statements they named Domingo Mabuyo as the triggerman andalluded to a certain Juan Mendoza as the instigator of the crime. The following day,June 21, a complaint for murder was filed in the Municipal Court of Tanauan againstboth Mendoza and Mabuyo. Upon a finding of a probable cause, the municipal judgeordered the issuance of the corresponding warrants of arrest, but Domingo Mabuyo wasnowhere to be found.

Juan Mendoza waived his right to the second stage of the preliminary investigation and

the municipal court forwarded the record of the case to the Court of First Instance ofBatangas, where an information for murder was filed against him alone as principal byinducement. Upon a plea of "not guilty" the accused went to trial, after which he wasacquitted "on ground of reasonable doubt" in a decision promulgated on January 7,1967..

On March 27, 1967, Domingo Mabuyo presented himself at the Office of the Chief ofPolice of Tanauan, but only to be fingerprinted since he had with him an order of


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release issued by the Municipal Court. It appears that Mabuyo had previously prepareda bail bond in the sum of P30,000.00, which was approved by the Municipal Judge.Through counsel Mabuyo waived his right to the second stage of the preliminaryinvestigation. Accordingly the municipal court in its order dated March 27, 1967 elevatedthe case to the Court of First Instance of Batangas for further proceedings. On April 5,

1967 the Provincial Fiscal filed the corresponding information for murder againstMabuyo, alleging the circumstances of treachery and evident premeditation. The casewent to trial upon a "not guilty" plea. The widow of the deceased, who appeared to bethe lone eyewitness to the commission of crime, testified that at about midnight Of June18, 1966, while she was reading in bed, she heard her husband asking her to open thedoor. She stood up, and taking with her a lighted kerosene lamp, went downstairs.Suddenly there were two successive gun shots. She heard her husband cry out "aray,"followed by a sound of a falling object. As she came near the door there were othersuccessive shots. Undaunted, she opened the door to see what was happening outside.With the aid of the light of the kerosene lamp, which she was holding over her head, shesaw Domingo Mabuyo firing at her prostrate husband with what appeared to her to be a

carbine. Mabuyo aimed it at her, so she immediately closed the door and shouted forhelp. Shortly thereafter her father-in-law, whose house was nearby, arrived. She toldhim that it was Domingo Mabuyo whom she saw shooting her husband.

Another witness for the prosecution, Aniceto Sumarraga of Bo. Ambulong, narrated thaton June 16, 1966, at about 10:00 o'clock in the evening, while he was at home reading,Domingo Mabuyo arrived with a carbine. They talked briefly inside the house. DomingoMabuyo inquired if he (the witness) would go with him to kill Norberto Anillo. Anicetorefused, saying that he did not want to be involved in any such undertaking. DomingoMabuyo then told him that if that was his decision, then he alone would go. After hisvisitor had left, Aniceto went to the store of a certain Alejandro Perez, also in Bo.

Ambulong, and played mahjong. He noticed that Norberto Anillo was also therewatching the game. As he was engrossed in the game Aniceto did not warn Norbertoabout Mabuyo's criminal design against him. At about midnight Anillo left the store. Afew minutes later the mahjong players heard gun reports coming from the direction ofNorberto Anillo's place. They stopped the game and went to Anillo's house and theresaw the lifeless body of Norberto Anillo lying on its face on the ground.

Testifying also for the prosecution, Agaton Anillo said that in the evening of June 18,1966 he was at his home. At about midnight he heard gun reports coming from thehouse of his son Norberto. At first there were two shots, followed shortly by severalmore in rapid succession. When he was about to go downstairs he heard the shouts ofhis daughter-in-law that her husband had been fired upon. He ran to her house, wherehe saw his son already dead. His daughter-in-law met him and told him that she hadseen Domingo Mabuyo do the shooting.

Agaton Anillo further testified that on June 16, or two days before the fatal incident, hisson told him that there was a plot for his liquidation and that it was Domingo Mabuyowho would carry it o

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