G.R. No.

102342 July 3, 1992

B. Criminal Cases:

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, and PEOPLE OF THE PHILIPPINES, respondents.

1. Violations of traffic laws, rules and regulations;

CRUZ, J.:
The Court is asked to determine the applicable law specifying the
prescriptive period for violations 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.
1

The offense was allegedly committed on May 11, 1990. The referralcomplaint of the police was received by the Office of the Provincial
2
Prosecutor of Rizal on May 30, 1990. The corresponding information was
3
filed with the Municipal Trial Court of Rodriguez on October 2, 1990.
The petitioner moved to quash the information on the ground that the crime
had prescribed, but the motion was denied. On appeal to the Regional Trial
4
Court of Rizal, the denial was sustained by the respondent judge.
In the present petition for review on certiorari, the petitioner first argues that
the charge against 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:
xxx xxx xxx

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 charged does 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 civil liability
arising therefrom. . . . (Emphasis supplied.)
xxx xxx xxx
Sec. 9. How commenced. The prosecution of criminal
cases falling within the scope of this Rule shall be either
by complaint or by information filed directly in court without
need of a prior preliminary examination or preliminary
investigation: Provided, however, That in Metropolitan
Manila and chartered cities, such cases shall be
commenced only by information; Provided, further, That
when the offense cannot be prosecuted de oficio,the
corresponding complaint shall be signed and sworn to
before the fiscal by the offended party.
She then invokes Act. No. 3326, as amended, entitled "An Act to Establish
Periods of Prescription for Violations Penalized by Special Acts and
Municipal Ordinances and to Provide When Prescription Shall Begin to Run,"
reading as follows:
Sec. 1. Violations penalized by special acts shall, unless
provided in such acts, prescribe in accordance with the
following rules: . . . Violations penalized by municipal
ordinances shall prescribe after two months.

Sec. 2. Prescription shall begin to run from the day of the

commission of the violation of the law, and if the same be
not known at the time, from the discovery thereof and the
institution of judicial proceedings for its investigation and
punishment.
The prescription shall be interrupted when proceedings
are instituted against the guilty person, and shall begin to
run again if the proceedings are dismissed for reasons not
constituting jeopardy.
Sec. 3. For the purposes of this Act, special acts shall be
acts defining and penalizing violations of law not included
in the Penal Code. (Emphasis supplied)
Her conclusion is that as the information was filed way beyond the
two-month statutory period from the date of the alleged commission of the
offense, the charge against her should have been dismissed on the ground
of prescription.
For its part, the prosecution contends that the prescriptive period was
suspended upon the 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, Rule 110 of the 1985 Rules on Criminal
Procedure, providing as follows:
Sec. 1. How Instituted For offenses not subject to the
rule on summary procedure in special 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 of
conducting the requisite preliminary
investigation therein;
b) For offenses falling under the
jurisdiction of the Municipal Trial Courts

and Municipal Circuit Trial Courts, by

filing the complaint directly with the said
courts, or a complaint with the fiscal's
office. However, in Metropolitan Manila
and other chartered cities, the complaint
may be filed only with the office of the
fiscal.
In all cases such institution interrupts the period of
prescription of the offense charged. (Emphasis supplied.)
Emphasis is laid on the last paragraph. The respondent maintains that the
filing of the complaint with the Office of the Provincial Prosecutor comes
under the phrase "such institution" 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
5
following dictum in Francisco v. Court of Appeals:
In view of this diversity of precedents, and in order to
provide guidance for Bench and Bar, this Court has reexamined the question and, after mature consideration,
has arrived at the conclusion that the true doctrine is, and
should be, the one established by the decisions holding
that the filing of the complaint in the Municipal Court, even
if it be merely for purposes of preliminary examination or
investigation, should, and does, interrupt the period of
prescription of the criminal responsibility, even if the court
where the 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, in declaring that the period of prescription "shall be
interrupted by the filing of the complaint or information"
without distinguishing whether the complaint is filed in the
court for preliminary examination or investigation merely,
or for action on the merits. Second, even if the court where
the complaint or information is filed may only proceed to
investigate the case, its actuations already represent the
initial step of the proceedings against the offender. Third, it

is unjust to deprive the injured party of the right to obtain

vindication on account of delays that are not under his
control. All that the victim of the offense may do on 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 months before 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 the revision of the Rules on Criminal
Procedure on January 1, 1985, except for the last paragraph, which was
added on October 1, 1988.
That section meaningfully begins with the phrase, "for offenses not subject to
the rule on summary procedure in special cases," which plainly signifies that
the section does not apply 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. This interpretation
conforms to the canon that words in a statute should be read in relation to
and 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 it covers are violations of municipal or city ordinances, it should
follow that the charge against the petitioner, which is for violation of a
municipal ordinance of Rodriguez, is governed by that rule and not Section 1
of Rule 110.
Where paragraph (b) of the section does speak of "offenses falling under the
jurisdiction of the Municipal Trial Courts and Municipal Circuit Trial Courts,"
the obvious reference is to Section 32(2) of B.P. No. 129, vesting in such
courts:
(2) Exclusive original jurisdiction over all offenses
punishable with imprisonment of not exceeding 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 other penalties, including
the civil liability arising from such offenses or predicated

thereon, irrespective of kind, nature, value, or amount

thereof; Provided, however, That in offenses involving
damage to property through criminal negligence they shall
have exclusive original jurisdiction where the imposable
fine does not exceed twenty thousand pesos.
These offenses are not covered by the Rule on Summary Procedure.
Under Section 9 of the Rule on Summary Procedure, "the complaint or
information shall be filed directly in court without need of a prior preliminary
6
examination or preliminary investigation." Both parties agree that this
provision does not prevent the prosecutor from conducting a preliminary
investigation if he wants to. However, the case shall be deemed commenced
only when it is filed in court, whether or not the prosecution decides to
conduct a preliminary investigation. This means that the running of the
prescriptive period shall be halted on the date the case is actually filed in
court and not on any date before that.
This interpretation is in consonance with the afore-quoted Act No. 3326
which says that the period of prescription shall be suspended "when
proceedings are instituted against the guilty party." The proceedings referred
to in Section 2 thereof are "judicial proceedings," contrary to the submission
of the Solicitor General that they include administrative 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
Summary Procedure and Section 1 of Rule 110 of the Rules on Criminal
Procedure, the former should prevail as the special law. And if there be a
conflict between Act. No. 3326 and Rule 110 of the Rules on Criminal
Procedure, the latter must again yield because this Court, in the exercise of
its rule-making power, is not allowed to "diminish, increase or modify
substantive rights" under Article VIII, Section 5(5) of the Constitution.
7
Prescription in criminal cases is a substantive right.
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 was grave oral defamation punishable under the Revised
Penal Code with arresto mayor in its maximum period to prision

correccional in its minimum period. By contrast, the prosecution in the instant

case is for violation of a municipal ordinance, for which the penalty cannot
exceed six months, 8 and is thus covered by the Rule on Summary
Procedure.
The Court realizes that under the above interpretation, a crime may
prescribe even if the complaint is filed seasonably with the prosecutor's
office if, intentionally or not, he delays the institution of the necessary judicial
proceedings until it is too late. However, that possibility should not justify a
misreading of the applicable rules beyond their obvious intent as reasonably
deduced from their plain language. The remedy is not a distortion of the
meaning of the rules but a rewording thereof to prevent the problem here
sought to be corrected.
Our conclusion is that the prescriptive period for the crime imputed to the
petitioner commenced from its alleged commission on May 11, 1990, and
ended two months thereafter, on July 11, 1990, in accordance with Section 1
of Act No. 3326. It was not interrupted by the filing of the complaint with the
Office of the Provincial Prosecutor on May 30, 1990, as this was not a
judicial proceeding. The judicial proceeding that could have interrupted the
period was the filing of the information with the Municipal Trial Court of
Rodriguez, but this was done only on October 2, 1990, after the crime had
already prescribed.
WHEREFORE, the petition is GRANTED, and the challenged Order dated
October 2, 1991 is SET ASIDE. Criminal Case No. 90-089 in the Municipal
Trial Court of Rodriguez, Rizal, is hereby DISMISSED on the ground of
prescription. It is so ordered.
Narvasa, C.J., Gutierrez, Jr., Paras, Feliciano, Padilla, Bidin, Grio-Aquino,
Medialdea, Regalado, Davide, Jr., Romero, Nocon and Bellosillo, JJ.,
concur.

G.R. No. 167571

November 25, 2008

LUIS PANAGUITON, JR., petitioner

vs.
DEPARTMENT OF JUSTICE, RAMON C. TONGSON and RODRIGO G.
CAWILI, respondents.
DECISION
TINGA, J.:
1

This is a Petition for Review of the resolutions of the Court of Appeals dated
29 October 2004 and 21 March 2005 in CA G.R. SP No. 87119, which
dismissed Luis Panaguiton, Jr.'s (petitioner's) petition for certiorari and his
2
subsequent motion for reconsideration.
The facts, as culled from the records, follow.
In 1992, Rodrigo Cawili (Cawili) borrowed various sums of money amounting
to P1,979,459.00 from petitioner. On 8 January 1993, Cawili and his
business associate, Ramon C. Tongson (Tongson), jointly issued in favor of
petitioner three (3) checks in payment of the said loans. Significantly, all
three (3) checks bore the signatures of both Cawili and Tongson. Upon
presentment for payment on 18 March 1993, the checks were dishonored,
either for insufficiency of funds or by the closure of the account. Petitioner
made formal demands to pay the amounts of the checks upon Cawili on 23
3
May 1995 and upon Tongson on 26 June 1995, but to no avail.
On 24 August 1995, petitioner filed a complaint against Cawili and
4
5
Tongson for violating Batas Pambansa Bilang 22 (B.P. Blg. 22) before the
Quezon City Prosecutor's Office. During the preliminary investigation, only
6
Tongson appeared and filed his counter-affidavit. Tongson claimed that he
had been unjustly included as party-respondent in the case since petitioner
had lent money to Cawili in the latter's personal capacity. Moreover, like
petitioner, he had lent various sums to Cawili and in appreciation of his
services, he was

offered to be an officer of Roma Oil Corporation. He averred that he was not

Cawili's business associate; in fact, he himself had filed several criminal
cases against Cawili for violation of B.P. Blg. 22. Tongson denied that he
had issued the bounced checks and pointed out that his signatures on the
said checks had been falsified.
To counter these allegations, petitioner presented several documents
showing Tongson's signatures, which were purportedly the same as the
7
those appearing on the checks. He also showed a copy of an affidavit of
adverse claim wherein Tongson himself had claimed to be Cawili's business
8
associate.
9

In a resolution dated 6 December 1995, City Prosecutor III Eliodoro V. Lara

found probable cause only against Cawili and dismissed the charges against
Tongson. Petitioner filed a partial appeal before the Department of Justice
(DOJ) even while the case against Cawili was filed before the proper court.
10
In a letter-resolution dated 11 July 1997, after finding that it was possible
for Tongson to co-sign the bounced checks and that he had deliberately
altered his signature in the pleadings submitted during the preliminary
investigation, Chief State Prosecutor Jovencito R. Zuo directed the City
Prosecutor of Quezon City to conduct a reinvestigation of the case against
Tongson and to refer the questioned signatures to the National Bureau of
Investigation (NBI).
Tongson moved for the reconsideration of the resolution, but his motion was
denied for lack of merit.
On 15 March 1999, Assistant City Prosecutor Ma. Lelibet S. Sampaga (ACP
Sampaga) dismissed the complaint against Tongson without referring the
matter to the NBI per the Chief State Prosecutor's resolution. In her
11
resolution, ACP Sampaga held that the case had already prescribed
12
pursuant to Act No. 3326, as amended, which provides that violations
penalized by B.P. Blg. 22 shall prescribe after four (4) years. In this case, the
four (4)-year period started on the date the checks were dishonored, or on
20 January 1993 and 18 March 1993. The filing of the complaint before the
Quezon City Prosecutor on 24 August 1995 did not interrupt the running of
the prescriptive period, as the law contemplates judicial, and not
administrative proceedings. Thus, considering that from 1993 to 1998, more
than four (4) years had already elapsed and no information had as yet been
filed against Tongson, the alleged violation of B.P. Blg. 22 imputed to him

13

had already prescribed. Moreover, ACP Sampaga stated that the order of
the Chief State Prosecutor to refer the matter to the NBI could no longer be
sanctioned under Section 3, Rule 112 of the Rules of Criminal Procedure
because the initiative should come from petitioner himself and not the
14
investigating prosecutor. Finally, ACP Sampaga found that Tongson had
15
no dealings with petitioner.
Petitioner appealed to the DOJ. But the DOJ, through Undersecretary
Manuel A.J. Teehankee, dismissed the same, stating that the offense had
16
already prescribed pursuant to Act No. 3326. Petitioner filed a motion for
17
reconsideration of the DOJ resolution. On 3 April 2003, the DOJ, this time
through then Undersecretary Ma. Merceditas N. Gutierrez, ruled in his favor
and declared that the offense had not prescribed and that the filing of the
complaint with the prosecutor's office interrupted the running of the
18
prescriptive period citing Ingco v. Sandiganbayan. Thus, the Office of the
City Prosecutor of Quezon City was directed to file three (3) separate
19
informations against Tongson for violation of B.P. Blg. 22. On 8 July 2003,
20
the City Prosecutor's Office filed an information charging petitioner with
21
three (3) counts of violation of B.P. Blg. 22.
22

However, in a resolution dated 9 August 2004, the DOJ, presumably acting

on a motion for reconsideration filed by Tongson, ruled that the subject
offense had already prescribed and ordered "the withdrawal of the three (3)
informations for violation of B.P. Blg. 22" against Tongson. In justifying its
sudden turnabout, the DOJ explained that Act No. 3326 applies to violations
of special acts that do not provide for a prescriptive period for the offenses
thereunder. Since B.P. Blg. 22, as a special act, does not provide for the
prescription of the offense it defines and punishes, Act No. 3326 applies to it,
and not Art. 90 of the Revised Penal Code which governs the prescription of
23
offenses penalized thereunder. The DOJ also cited the case of Zaldivia v.
24
Reyes, Jr., wherein the Supreme Court ruled that the proceedings referred
to in Act No. 3326, as amended, are judicial proceedings, and not the one
before the prosecutor's office.
25

Petitioner thus filed a petition for certiorari before the Court of Appeals
assailing the 9 August 2004 resolution of the DOJ. The petition was
dismissed by the Court of Appeals in view of petitioner's failure to attach a
proper verification and certification of non-forum

shopping. The Court of Appeals also noted that the 3 April 2003 resolution of
26
the DOJ attached to the petition is a mere photocopy. Petitioner moved for
the reconsideration of the appellate court's resolution, attaching to said
27
motion an amended Verification/Certification of Non-Forum Shopping. Still,
the Court of Appeals denied petitioner's motion, stating that subsequent
compliance with the formal requirements would not per se warrant a
reconsideration of its resolution. Besides, the Court of Appeals added, the
petition is patently without merit and the questions raised therein are too
28
unsubstantial to require consideration.
In the instant petition, petitioner claims that the Court of Appeals committed
grave error in dismissing his petition on technical grounds and in ruling that
the petition before it was patently without merit and the questions are too
unsubstantial to require consideration.
29

The DOJ, in its comment, states that the Court of Appeals did not err in
dismissing the petition for non-compliance with the Rules of Court. It also
reiterates that the filing of a complaint with the Office of the City Prosecutor
of Quezon City does not interrupt the running of the prescriptive period for
violation of B.P. Blg. 22. It argues that under B.P. Blg. 22, a special law
which does not provide for its own prescriptive period, offenses prescribe in
four (4) years in accordance with Act No. 3326.
Cawili and Tongson submitted their comment, arguing that the Court of
Appeals did not err in dismissing the petition for certiorari. They claim that
the offense of violation of B.P. Blg. 22 has already prescribed per Act No.
3326. In addition, they claim that the long delay, attributable to petitioner and
30
the State, violated their constitutional right to speedy disposition of cases.
The petition is meritorious.
First on the technical issues.
Petitioner submits that the verification attached to his petition before the
Court of Appeals substantially complies with the rules, the verification being
intended simply to secure an assurance that the allegations in the pleading
are true and correct and not a product of the imagination or a matter of
speculation. He points out that this Court has held in a number of cases that

a deficiency in the verification can be excused or dispensed with, the defect

31
being neither jurisdictional nor always fatal.
Indeed, the verification is merely a formal requirement intended to secure an
assurance that matters which are alleged are true and correctthe court may
simply order the correction of unverified pleadings or act on them and waive
strict compliance with the rules in order that the ends of justice may be
32
served, as in the instant case. In the case at bar, we find that by attaching
the pertinent verification to his motion for reconsideration, petitioner
sufficiently complied with the verification requirement.
Petitioner also submits that the Court of Appeals erred in dismissing the
petition on the ground that there was failure to attach a certified true copy or
duplicate original of the 3 April 2003 resolution of the DOJ. We agree. A
plain reading of the petition before the
Court of Appeals shows that it seeks the annulment of the DOJ resolution
33
dated 9 August 2004, a certified true copy of which was attached as Annex
34
"A." Obviously, the Court of Appeals committed a grievous mistake.
Now, on the substantive aspects.
35

Petitioner assails the DOJ's reliance on Zaldivia v. Reyes, a case involving

the violation of a municipal ordinance, in declaring that the prescriptive
period is tolled only upon filing of the information in court. According to
petitioner, what is applicable in this case is Ingco v.
36
Sandiganbayan, wherein this Court ruled that the filing of the complaint
with the fiscal's office for preliminary investigation suspends the running of
the prescriptive period. Petitioner also notes that the Ingco case similarly
involved the violation of a special law, Republic Act (R.A.) No. 3019,
otherwise known as the Anti-Graft and Corrupt Practices Act, petitioner
37
notes. He argues that sustaining the DOJ's and the Court of Appeals'
pronouncements would result in grave injustice to him since the delays in the
38
present case were clearly beyond his control.
There is no question that Act No. 3326, appropriately entitled An Act to
Establish Prescription for Violations of Special Acts and Municipal
Ordinances and to Provide When Prescription Shall Begin, is the law

applicable to offenses under special laws which do not provide their own
prescriptive periods. The pertinent provisions read:
Section 1. Violations penalized by special acts shall, unless
otherwise provided in such acts, prescribe in accordance with the
following rules: (a) x x x; (b) after four years for those punished by
imprisonment for more than one month, but less than two years; (c)
xxx
Sec. 2. Prescription shall begin to run from the day of the
commission of the violation of the law, and if the same be not
known at the time, from the discovery thereof and the institution of
judicial proceedings for its investigation and punishment.
The prescription shall be interrupted when proceedings are
instituted against the guilty person, and shall begin to run again if
the proceedings are dismissed for reasons not constituting
jeopardy.
We agree that Act. No. 3326 applies to offenses under B.P. Blg. 22.
An offense under B.P. Blg. 22 merits the penalty of imprisonment of
not less than thirty (30) days but not more than one year or by a
fine, hence, under Act No. 3326, a violation of B.P. Blg. 22
prescribes in four (4) years from the commission of the offense or, if
the same be not known at the time, from the discovery thereof.
Nevertheless, we cannot uphold the position that only the filing of a
case in court can toll the running of the prescriptive period.
It must be pointed out that when Act No. 3326 was passed on 4 December
1926, preliminary investigation of criminal offenses was conducted by
justices of the peace, thus, the phraseology in the law, "institution of judicial
39
proceedings for its investigation and punishment," and the prevailing rule at
the time was that once a complaint is filed with the justice of the peace for
40
preliminary investigation, the prescription of the offense is halted.
The historical perspective on the application of Act No. 3326 is
41
illuminating. Act No. 3226 was approved on 4 December 1926 at a time
when the function of conducting the preliminary investigation of criminal
offenses was vested in the justices of the peace. Thus, the prevailing rule at

42

43

the time, as shown in the cases of U.S. v. Lazada and People v. Joson, is
that the prescription of the offense is tolled once a complaint is filed with the
justice of the peace for preliminary investigation inasmuch as the filing of the
complaint signifies the
44

institution of the criminal proceedings against the accused. These cases

45
were followed by our declaration in People v. Parao and Parao that the first
step taken in the investigation or examination of offenses partakes the
nature of a judicial proceeding which suspends the prescription of the
46
47
offense. Subsequently, in People v. Olarte, we held that the filing of the
complaint in the Municipal Court, even if it be merely for purposes of
preliminary examination or investigation, should, and does, interrupt the
period of prescription of the criminal responsibility, even if the court where
the complaint or information is filed cannot try the case on the merits. In
addition, even if the court where the complaint or information is filed may
only proceed to investigate the case, its actuations already represent the
48
initial step of the proceedings against the offender, and hence, the
prescriptive period should be interrupted.
49

50

In Ingco v. Sandiganbayan and Sanrio Company Limited v. Lim, which

involved violations of the Anti-Graft and Corrupt Practices Act (R.A. No.
3019) and the Intellectual Property Code (R.A. No. 8293), which are both
special laws, the Court ruled that the
prescriptive period is interrupted by the institution of proceedings for
preliminary investigation against the accused. In the more recent case of
Securities and Exchange Commission v. Interport Resources Corporation, et
51
al., the Court ruled that the nature and purpose of the investigation
conducted by the Securities and Exchange Commission on violations of the
52
Revised Securities Act, another special law, is equivalent to the preliminary
investigation conducted by the DOJ in criminal cases, and thus effectively
interrupts the prescriptive period.
The following disquisition in the Interport Resources case
thus:

53

is instructive,

While it may be observed that the term "judicial proceedings" in

Sec. 2 of Act No. 3326 appears before "investigation and
punishment" in the old law, with the subsequent change in set-up

whereby the investigation of the charge for purposes of prosecution

has become the exclusive function of the executive branch, the
term "proceedings" should now be understood either executive or
judicial in character: executive when it involves the investigation
phase and judicial when it refers to the trial and judgment stage.
With this clarification, any kind of investigative proceeding instituted
against the guilty person which may ultimately lead to his
54
prosecution should be sufficient to toll prescription.
Indeed, to rule otherwise would deprive the injured party the right to obtain
55
vindication on account of delays that are not under his control. A clear
example would be this case, wherein petitioner filed his complaint-affidavit
on 24 August 1995, well within the four (4)-year prescriptive period. He
likewise timely filed his appeals and his motions for reconsideration on the
dismissal of the charges against
Tongson. He went through the proper channels, within the prescribed
periods. However, from the time petitioner filed his complaint-affidavit with
the Office of the City Prosecutor (24 August 1995) up to the time the DOJ
issued the assailed resolution, an aggregate period of nine (9) years had
elapsed. Clearly, the delay was beyond petitioner's control. After all, he had
already initiated the active prosecution of the case as early as 24 August
1995, only to suffer setbacks because of the DOJ's flip-flopping resolutions
and its misapplication of Act No. 3326. Aggrieved parties, especially those
who do not sleep on their rights and actively pursue their causes, should not
be allowed to suffer unnecessarily further simply because of circumstances
beyond their control, like the accused's delaying tactics or the delay and
inefficiency of the investigating agencies.
We rule and so hold that the offense has not yet prescribed. Petitioner 's
filing of his complaint-affidavit before the Office of the City Prosecutor on 24
August 1995 signified the commencement of the proceedings for the
prosecution of the accused and thus effectively interrupted the prescriptive
period for the offenses they had been charged under B.P. Blg. 22. Moreover,
since there is a definite finding of probable cause, with the debunking of the
claim of prescription there is no longer any impediment to the filing of the
information against petitioner.
WHEREFORE, the petition is GRANTED. The resolutions of the Court of
Appeals dated 29 October 2004 and 21 March 2005 are REVERSED and

SET ASIDE. The resolution of the Department of Justice dated 9 August

2004 is also ANNULLED and SET ASIDE. The Department of Justice is
ORDERED to REFILE the information against the petitioner.
No costs.
SO ORDERED.

G.R. No. L-32849 July 31, 1984

QUIRICO A. ABELA, petitioner,
vs.
HONORABLE CESARIO C. GOLEZ, Judge, Court of First Instance of
Capiz, Branch I, and AGUSTIN ALMALBIS respondents.

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 for estafa 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 City Fiscal of Roxas City a complaint for estafa against one
Virginia Anisco. After conducting a preliminary investigation, herein petitioner
Quirico A. Abela dismissed the complaint "for lack of merit." Thereafter,
private respondent Almalbis commenced the action for mandamus in the
Court of First Instance of Roxas City against herein petitioner Quirico A.
Abela. In due course said 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 the respondent 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 checks and later,
when respondent had been late in her remittances,
complainant proposed that respondent 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 again continued 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 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 committed Estafa 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.
xxx xxx xxx
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 arrangement can
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 check book 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 the necessary amount for
replenishment of such deposit.
xxx xxx xxx
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 the transaction 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 complainant to 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 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
uninterrupted transaction. 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. (Exhibit D).
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 City the 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 Almalbis
indorsed 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.

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 date
corresponding 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 the said checks
Exhibits C, D, E and F also bounced back for lack of funds
or for the reason of "Exceeds 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, for
certiorari upon the ground that the respondent Fiscal
gravely abused his discretion in dismissing the within
mentioned complaint with the result that the petitioner
herein has been deprived of his right as the aggrieved
party in a criminal transaction-and,secondly, for
mandamus to compel the said respondent to bring the
corresponding 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
petitioner's complaint 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 or
probability, but is firmly secured within the realm of
certainty, and this condition should entitle the petitioner
herein to a relief for official inaction obtainable through the
extraordinary remedy of mandamus. (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 be legally 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 is inadequate. 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)
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 the proper information rendered the Fiscal subject to
the writ of mandamus. (Bernabe v. Bolinas, et al., L22000, 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 to the
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 particular case. ... 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 or
prosecute 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 city or 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 his
duties, 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 be
patently 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 Act 5184." (Estrella vs.
Orendain Jr., 37 SCRA 640)
However, the matter of instituting an information should be distinguished
from a motion by the fiscal 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.
Separate Opinions
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 criminal action? 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 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 from
groundless, false or malicious prosecution. The prosecuting officer would be
committing a serious 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, it
cannot 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 Fuente and Cuevas, JJ., concur.
Makasiar, J., concurs in the result.
Fernando, C.J., Escolin, Teehankee, JJ., took no part.

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 fiscal's part to file an
information for homicide only when the evidence presented before him
warrants the firing of a murder charge 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 of Justice;
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 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 fiscal's part to file an
information for homicide only when the evidence presented before him
warrants the firing of a murder charge 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 of Justice;
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 April 7, 1976

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
RICARDO BERIALES, BENEDICTO CUSTODIO and PABLITO
CUSTODIO, accused-appellants.
Francisco D. Abas for appellants.
Solicitor General Estelito P. Mendoza, Assistant Solicitor General Alicia V.
Sempio-Diy and Solicitor Amado D. Aquino for appellee.

CONCEPCION JR., J.:

thereby inflicting upon the latter mortal wounds which

2
caused her death. ...
At the hearing of November 26, 1974, appellants' counsel moved for a
3
reinvestigation of said ease, along with two other related cases which the
court a quo granted, in its Order reading as follows:
On motion of Atty. Abas counsel for the accused and
without objection on the part of Fiscal Ramon So Jr., let
the reinvestigation of this case immediately take place at
the Office of the City Fiscal and let the arraignment and
trial be postponed until December 5 and 6, 1974 at 7:30
a.m. of each day, if and when the Fiscal shall recommend
that the case shall proceed after it shall have been
reinvestigated, with notice to Attys. Abas and Cornejos as
4
well as Fiscal Solis in open court.

Appeal from the decision of the Court of First Instance of Leyte, Branch V,
Ormoc City, in Criminal Case No. 562-0, convicting the accused Ricardo
Beriales Benedicto Custodio and Pablito Custodio of the crime of murder,
sentencing each one of them to the penalty of reclusion perpetua, and to
jointly and severally pay the heirs of Saturnina Gonzales Porcadilla the sum
1
of P12,000.00 and to pay the costs.

On December 3, 1974, the trial court postponed the hearing of the case to
5
December 17 and 18, 1974. in view of the City Fiscal's motion "for a
deferment of the hearing or trial set for December 5 and 6, 1974 until such
time the REINVESTIGATION shall have been terminated for which the result
of said reinvestigation will be submitted to this Honorable Court for its
6
resolution in the premises."

It appears that in Criminal Case No. 562-0 the herein appellants were
charged with the crime of murder in an information filed by the City Fiscal of
Ormoc City on November 22, 1974, allegedly committed as follows:

On December 6, 1974, however, the trial court, motu proprio cancelled the
aforesaid hearings on December 17, and 18, 1974, and, instead, reset the
7
arraignment and trial of the case to December 10 and 11, 1974.

That on or about the 13th of September, 1974, at around

9:00 o'clock in the morning at Barrio Mahayahay, this city,
and within the jurisdiction of this Honorable Court, the
above-named accused, RICARDO BERIALES
BENEDICTO CUSTODIO and PABLITO CUSTODIO,
conspiring together, confederating with and mutually
helping and aiding one another, with treachery and evident
premeditation and with intent to kill, did then and there
wilfully, unlawfully and feloniously attack, assault, strike
and stab the person of SATURNINA PORCADILLA,
without giving the latter sufficient time to defend herself,

At the hearing of December 10, 1974, appellants counsel manifested to the

court that pursuant to its approval of his motion for reinvestigation, the City
Fiscal had set the reinvestigation for December 12, 1974 and had already
issued the corresponding subpoena to secure the attendance of the
8
witnesses. Nevertheless, the court a quo, issued an order setting the
9
hearing of the case to the next day, December 11, 1974, at which hearing,
appellants' counsel reiterated his manifestation that since the City Fiscal had
already ordered the reinvestigation on December 12, 1974, the said
reinvestigation should first be finished and the corresponding resolution
rendered thereon and submitted to the court before any trial of the case
10
should take place.

The trial court, however, relying on the mandate of the New Constitution that
"All persons shall have the right to a speedy disposition of their cases before
11
all judicial, quasi-judicial, or administrative bodies" re-scheduled the
12
hearing to December 13, 1974. Immediately thereafter, Special Counsel
Rosario R. Polines, in representation of the City Fiscal, manifested that the
private prosecutor, Atty. Procadilla, be authorized to conduct the case for the
prosecution.
When the case was called for hearing on December 13, 1974, counsel for
the appellant asked the court to wait for the City Fiscal to appear, since the
reinvestigation of the case had already been terminated and the Fiscal, if
14
given a chance, might be able to report on said reinvestigation. The trial
15
court, however, insisted in arraigning the appellants. When arraigned, the
three appellants declined to plead, saying: "I am not going to answer the
16
question because the Fiscal is not yet around." Thereupon, the trial court
17
entered a plea of "Not Guilty" for each of them.
Thereafter, appellants' counsel again manifested that the City Fiscal was
absent and that they could not go to trial without the fiscal and his report on
18
the reinvestigation conducted by him. Nonetheless, the trial court, ordered
the presentation of evidence by the private prosecutor since he had been
19
previously authorized by the City Fiscal to handle the case.
After the direct examination of the witnesses presented by the private
prosecutor, the trial court asked the counsel for the defense if he desired to
cross-examine the witnesses. Appellants' counsel, however, reiterated his
manifestation that they would not go to trial until the City Fiscal shall have
submitted the result of the reinvestigation to the court, and the court each
time ruled that it considered such manifestation as a waiver on the part of
20
the appellants to cross-examine the witnesses.
Thereafter, the private prosecutor rested the case for the prosecution and
the court called for the evidence of the defense. Again, appellants' counsel
manifested that the appellants were not agreeing to the trial of the case
unless they first received the result of the reinvestigation conducted by the
21
City Fiscal. Whereupon, the court considered the case submitted for
decision and announced the promulgation of the decision on December 17,
22
1974.

When the case was called on December 17, 1974, appellants' counsel
manifested that the accused were not in conformity with the promulgation of
the decision on the ground that they did not agree to the trial of the
23
case. Nonetheless, the trial court promulgated its judgment on the same
24
day.
Hence, the appellants interpose this appeal, upon the principal ground that
25
they were denied due process of law. The Solicitor General agrees with
such contention and recommends that the judgment under review be set
aside and the case remanded to the lower court for another arraignment and
26
trial.
We sustain the appellants. After the trial court granted the appellants' motion
for reinvestigation, it became incumbent upon the court to hold in abeyance
the arraignment and trial of the case until the City Fiscal shall have
conducted and made his report on the result of such reinvestigation. That
was a matter of duty on its part, not only to be consistent with its own order
but also to do justice aid at the same time to avoid a possible miscarriage of
justice. It should be borne in mind, that the appellants herein were charged
with the serious crime of murder, and considering that their motion for
reinvestigation is based upon the ground that it was Felipe Porcadilla
(husband and father, respectively, of the two deceased, Saturnina Porcadilla
and Quirino Porcadilla) who was the aggressor for having attacked and
27
seriously wounded appellant Pablito Custodio it was entirely possible for
the City Fiscal to modify or change his conclusion after conducting the
reinvestigation. When the trial court, therefore, ignored the appellants'
manifestations objecting to the arraignment and the trial of the case, until
after the City Fiscal shall have rendered a resolution on his reinvestigation,
but instead considered such manifestations on their part as a plea of riot
guilty and proceeded to try the case, received the evidence for the
prosecution, and then rendered judgment against them on the basis thereof,
it committed a serious irregularity which nullifies the proceedings below
because such a procedure is repugnant to the due process clause of the
28
Constitution.
Besides, as correctly pointed out by the Solicitor General, "what is more
deplorable and which renders patently irregular all the proceedings taken in
this case, was the total absence of the City Fiscal and/or any of his
assistants or special counsel on December 13, 1974, when the appellants

were arraigned and when the private prosecutor presented evidence and
rested the case supposedly for the People.

participate in the conduct of the case, especially in the examination of the

34
witnesses and the presentation of documentary evidence for both parties."

Under the Rules of Court, "All criminal actions either commenced by

complaint or by information shall be prosecuted under the direction and
29
control of the fiscal." In the trial of criminal cases, it is the duty of the public
30
prosecutor to appeal for the government. As stated by this Court, "once a
public prosecutor has been entrusted with the investigation of a case and
has acted thereon by filing the necessary information in court he is b law in
duty bound to take charge thereof until its finally termination, for under the
law he assumes full responsibility for his failure or success since he is the
31
one more adequately prepared to pursue it to its termination." While there
is nothing in the rule of practice and procedure in criminal cases which
denies the right of the fiscal, in the exercise of a sound discretion, to turn
32
over the active conduct of the trial to a private prosecutor, nevertheless,
his duty to direct and control the prosecution of criminal cases requires that
he must be present during the proceedings. Thus, in the case of People vs.
33
Munar this Court upheld the right of the private prosecutor therein to
conduct the examination of the witnesses because the government
prosecutors were present at the hearing; hence, the prosecution of the case
remained under their direct supervision and control.

WHEREFORE, the decision appealed from is hereby set aside and the case
remanded to the trial court for another arraignment and trial. Costs de oficio.

In the present case, although the private prosecutor had previously been
authorized by the special counsel Rosario R. Polines to present the evidence
for the prosecution, nevertheless, in view of the absence of the City Fiscal at
the hearing on December 13, 1974, it cannot be said that the prosecution of
the case was under the control of the City Fiscal. It follows that the evidence
presented by the private prosecutor at said hearing could not be considered
as evidence for the plaintiff, the People of the Philippines. There was,
therefore, no evidence at all to speak of which could have been the basis of
the decision of the trial court.
Moreover, as aptly observed by the Solicitor General, "to permit such
prosecution of a criminal case by the private prosecutor with the fiscal
in absentia can set an obnoxious precedent that can be taken advantage of
by some indolent members of the prosecuting arm of the government as well
as those who are oblivious of their bounden duty to see to it not only that the
guilty should be convicted, but that the innocent should be acquitted a
duty that can only be effectively and sincerely performed if they actively

SO ORDERED.
Barredo, Antonio, Aquino and Martin, JJ., concur.

G.R. No. 116237 May 15, 1996

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
FE ARCILLA y CORNEJO, accused-appellant.

Unknown to the accused, Antonio developed an illicit affair with Lilia Lipio.
The house of Lilia's parents in barangay Namantao, Daraga, Albay, served
as their lovenest. Antonio sired two (2) children during his amorous union
with Lilia.
Eventually, the accused learned of her husband's infidelity. She returned to
the country in 1988 but her return did not stop the illicit relationship between
Lilia and Antonio.

PUNO, J.:p
1

In an Information, dated August 5, 1992, accused FE ARCILLA y

CORNEJO was charged with Parricide before the Regional Trial Court of
Daraga, Albay, viz:
That on or about 9:00 A.M. of May 1, 1992, at Brgy.
Namantao, Daraga, Albay, Philippines, and within the
jurisdiction of this Honorable Court, the above-named
accused, with intent to kill and while armed with a fan
knife, did then and there willfully, unlawfully and
feloniously attack and stab her husband, ANTONIO F.
ARCILLA, hitting and inflicting upon the latter fatal wound
on his left chest, which injury directly caused and resulted
to the death of said Antonio F. Arcilla, all to the damage
and prejudice of the heirs of the deceased.
CONTRARY TO LAW.
2

Accused pleaded not guilty and underwent trial.

The evidence for the prosecution shows that accused Fe Arcilla y Cornejo
and the victim, Antonio Arcilla, were married in Goa, Camarines Sur, on April
3
19, 1975. They had five (5) children.
Accused was a teacher while Antonio was an employee of National Power
Corporation in Daraga, Albay. In 1983, she left her family to work in
Singapore. Her children remained in their conjugal home in Camarines Sur.
Antonio, on the other hand, stayed most of the time in Albay.

The illicit relationship came to a tragic end on May 1, 1992. At about 9:00
A.M. of said date, accused went to Lilia's residence in Namantao, Daraga,
Albay looking for Antonio. It was the barangay's feast day and Lilia's family
had a lot of guests. The accused found Antonio having a drinking spree with
his friends in a kiosk, just a few meters away from Lilia's house.
The meeting immediately started to be violent. Accused approached Antonio
and slapped him. She then went inside Lilia's house and instructed Antonio
to tell Lilia to join them. The three proceeded to the bedroom where the three
(3) year-old son of Lilia and Antonio was sleeping. A heated altercation
between accused and Antonio followed. Lilia left the bedroom and sat on a
sofa in the receiving room. The sofa was about two (2) meters away and she
could see the bickering couple through the bedroom's door which was then
half-closed.
At the height of their arguments, the accused took a fan knife from her
shoulder bag and stabbed Antonio on the chest, causing him to embrace her
tightly. Lilia barged back to the room, held Antonio's belt at the back and
pulled him away from accused. Accused was able to pull out the knife from
Antonio's chest and she delivered a second thrust to Antonio. She hit him on
the left thigh. Accused then fled with the fan knife. Blood stained her clothes.
Antonio was rushed to the hospital where he died due to "hypovolemic shock
due to massive hemorrhage secondary, to stab wound."
Accused gave a different version.
She testified that she received an urgent letter from her eldest daughter
asking for money to pay her tuition fees. Thus, in the early morning of May 1,
1992, she went to see her husband in his office in Daraga, Albay. The

security guard told her that Antonio was in Namantao. She proceeded to
Lilia's residence and found Antonio drinking with some friends. Antonio
advised her up go home and not to make a scene. Irked, she slapped him
and then went inside Lilia's house. Antonio followed her up the bedroom
where the three-year old son of Lilia was sleeping. Lilia joined the couple in
the bedroom. Accused then asked them if the child was theirs. Lilia denied
the accusation but Antonio boldly admitted that the boy was theirs. The
admission provoked a heated verbal exchange between the accused and
Antonio while Lilia brought the child outside the bedroom. The altercation
became violent when Antonio pushed the accused and she hit the concrete
wall and felt dizzy. Seeing a fan knife in a cabinet, she held it with her right
hand and warned Antonio not to go near her or she would stab him. Antonio
did not heed her warning. They grappled for the knife until Antonio was able
to twist her left arm at her back. She managed to free her left arm and held
the knife with both hands. However, Antonio moved behind her, wrapped his
arms around her, held her hands and tried to force the knife towards her.
She twisted her body and the knife struck Antonio's left thigh. Undaunted,
Antonio tried to direct the knife towards her a second time. She bit his arm
but his grip even tightened. Again, she twisted her body and, in the process,
the knife struck Antonio. When his embrace loosened, she ran away.
She chanced upon a barangay tanod who helped her surrender to the
barangay captain of Namantao. She was then taken to the police
headquarters in Daraga, Albay.
The trial court gave more credence to the testimony of prosecution witness
Lilia Lipio and convicted the accused. The dispositive portion of the trial
4
court's Decision, dated May 27, 1994, states:
CONSIDERING THE FOREGOING RATIOCINATION, the
court hereby finds the accused FE ARCILLA Y CORNEJO
to have committed beyond reasonable doubt the act of
stabbing her lawfully wedded husband ANTONIO
ARCILLA, resulting to the latter's untimely death. Accused
is therefore declared GUILTY of the crime of parricide as
defined and penalized under Article 246 of the Revised
Penal Code. She is hereby sentenced to suffer the penalty
of RECLUSION PERPETUA and the accessory penalties
provided by law.

Having been found (guilty) of the capital offense, the bail

bond filed for her provisional liberty is hereby cancelled
and accused is ordered committed to the provincial jail.
Accused is likewise hereby ordered to pay the heirs of the
deceased victim ANTONIO ARCILLA, the sum of FIFTY
THOUSAND (P50,000.00) PESOS for the fact of death;
TWENTY THOUSAND ONE HUNDRED (P20,100.00)
PESOS, as actual or compensatory damages; and another
TWENTY THOUSAND (P20,000.00) PESOS, as moral
damages.
Costs against the accused.
Subsequently, the trial court amended the dispositive portion of its Decision.
Treating reclusion perpetua as a divisible penalty under Republic Act No.
7659, the trial court sentenced the accused as follows:
CONSIDERING THE FOREGOING RATIOCINATION, the
Court finds the accused FE ARCILLA Y CORNEJO to
have committed beyond reasonable doubt the act of
stabbing her lawfully wedded husband ANTONIO
ARCILLA, resulting to the latter's untimely death. Accused
is therefore truly and truthfully guilty of the crime of
parricide. There being no aggravating or mitigating
circumstance and after applying the Indeterminate
Sentence Law, she is hereby sentenced to suffer the
penalty of FOURTEEN (14) YEARS, EIGHT (8) MONTHS
AND ONE (1) DAY OF RECLUSION TEMPORAL as
minimum, to TWENTY-EIGHT (28) YEARS, (8) MONTHS
AND ONE (1) DAY OF RECLUSION PERPETUA, as
maximum, and all the accessory penalties provided by
law.
xxx xxx xxx

Hence, this appeal where appellant contends:

FIRST ASSIGNED ERROR

THE TRIAL COURT ERRED IN ADMITTING THE

TESTIMONY OF LILIA LIPIO DESPITE THE ABSENCE
OF A PUBLIC PROSECUTOR IN THE TAKING
THEREOF.
SECOND ASSIGNED ERROR
THE TRIAL COURT ERRED IN GIVING CREDENCE TO
THE TESTIMONY OF LILIA LIPIO RELATIVE TO THE
CIRCUMSTANCES WHICH LED TO THE DEATH OF
ANTONIO ARCILLA.
THIRD ASSIGNED ERROR
THE TRIAL COURT ERRED IN NOT GIVING
CREDENCE TO THE TESTIMONY OF THE ACCUSEDAPPELLANT RELATIVE TO THE CIRCUMSTANCES
WHICH LED TO THE DEATH OF HER HUSBAND
ANTONIO ARCILLA.
The appeal lacks merit.
We reject the first contention of the appellant. The records do not show that
the entire testimony of the prosecution star witness, Lilia Lipio, was given in
the absence of the prosecuting fiscal. As explicitly stated by the trial judge in
his Decision, viz:
xxx xxx xxx
From the records of Branch I of the Regional Trial Court,
Prosecutor de Joya only attended the pre-trial of the case.
The pre-trial was, however, waived by the defense. It
appears that Prosecutor de Joya, after the pre-trial went
back to Branch 2, as in fact he cross-examined a witness
for the defense inPeople vs. Rogelio Andez. This case
was heard after the hearing in instant case. So Prosecutor
de Joya was absent for only a few minutes. He was not

absent for all the time that Lilia Lipio took the witness
stand.
The Presiding Judge had a chance to talk to Prosecutor de
Joya. According to him, he stayed at Branch I for not more
than five (5) minutes, then, returned to Branch 2. When he
returned to Branch 2, the private prosecutor was still
conducting his direct examination on Lilia. (Emphasis
supplied)
The fleeting absence of Fiscal de Joya is not a sufficient ground to invalidate
the testimony of Lilia Lipio as urged by appellant. To begin with, appellant
herself did not object to the continuation of the testimony of Lipio despite the
momentary absence of the prosecutor. Appellant has not also shown any
prejudice caused to her by the incident. Through counsel, she was able to
fully cross-examine Lipio and test her credibility. To be sure, appellant
misappreciates the reason requiring the public prosecutor to be present in
the trial of criminal cases. A crime is an offense against the State, and hence
6
is prosecuted in the name of the People of the Philippines. For this reason,
section 5 of Rule 110 provides that "all criminal actions either commenced
by complaint or by information shall be prosecuted under the direction and
control of the fiscal. . . ." Only private crimes like adultery, concubinage,
seduction, abduction, rape or acts of lasciviousness can be prosecuted at
7
the instance of the offended party. The presence of a public prosecutor in
the trial of criminal cases is necessary to protect vital state interests at stake
in the prosecution of crimes, fore most of which is its interest to vindicate the
rule of law, the bedrock of peace of the people. As the representative of the
State, the public prosecutor has the right and the duty to take all steps to
protect the rights of the People in the trial of an accused. It ought to be self
evident that the right belongs to the public prosecutor and not to the
accused. The absence of a prosecutor cannot therefore be raised by an
accused to invalidate the testimony of a state witness if he cannot prove
personal prejudice as in the case at bar.
In her second assignment of error, appellant assails the credibility of Lilia
Lipio. The records will show that Lilia Lipio was clear and categorical when
8
she testified on how Antonio was stabbed by accused. She declared:
ATTY. NINOFRANCO:

What happened when you entered the

room?

A Antonio Arcilla was standing fronting

Fe Arcilla.

(LILIA LIPIO)

Q Where was he facing, was he looking

at Fe Arcilla when he said that?

After I entered the room Fe Arcilla asked

Antonio Arcilla whether the child who
was sleeping is the child of Antonio
Arcilla with me?
Q What did Antonio Arcilla answer or
what was the answer of Antonio Arcilla?
A Antonio Arcilla said: "yes, is it not that
you knew it already."

A Yes, sir, but his face was a little bit

lower.
Q With that position of Antonio Arcilla
so, what did Fe Arcilla do?
A I saw Fe Arcilla opened her shoulder
bag.
Q What did he get from that bag?

xxx xxx xxx

A That fan knife.
Q How far were you from Antonio and
Fe when you seated yourself in the
receiving room?

Q What did she do with the fan knife?

A More or less two meters.

A She immediately stabbed Antonio

Arcilla.

Q What happened while you were

already seated in the receiving room.

Q Was Antonio Arcilla hit by that

stabbing?

A Fe Arcilla asked Antonio Arcilla: "what

do you like me to do, do I have to kill
you."

A Yes, sir.

Q What was the answer of Antonio

Arcilla?
A Antonio Arcilla answered, "just do it."
Q What else happened after that?

Q Where, on what part of his body?

A At this juncture witness pointing to her
left breast.
xxx xxx xxx

Q Now, after Fe Arcilla stabbed Antonio

Arcilla on the left breast what else
happened?

During her cross-examination, Lipio remained firm and certain on what

9
transpired that fateful day. She testified:
ATTY. JACOB:

A Antonio Arcilla was able to embrace

Fe Arcilla.
Q What did you do?
A Inasmuch as the hands of Fe Arcilla
could not extricate from the body of
Antonio Arcilla what I did was to grab
Antonio Arcilla by his belt on his back as
there was blood oozing from his body.
Q What happened when you grabbed
Antonio Arcilla at his belt?
A Fe Arcilla was able to pull the knife
and stabbed Antonio Arcilla again for the
second time.
Q Where was Antonio Arcilla hit with the
second stab?

Before Fe Arcilla stabbed Antonio

Arcilla, nothing happened as to any
conversation which took place between
the two?
(LILIA LIPIO)
Only that altercation and Fe Arcilla even
asked Antonio Arcilla: "What do you
want me to do, do I have to kill you
now?"
Q That child who was sleeping inside
the room was he awakened?
A No, sir, my, child was not awakened
but I told somebody to get my son and
brought (sic) him to me.

A On the left thigh.

Q You mean after the stabbing incident,

your son was still sleeping?

(Witness pointing to his left thigh).

A Yes, sir.

Q After the second stab what did Fe

Arcilla do?
A She hurriedly went out of the house.
xxx xxx xxx

xxx xxx xxx

Q You did not witness any commotion
before the stabbing incident?
A No, sir, only the door was moved by
them. Why, were they grappling for
something?

A No, sir, but Antonio Arcilla was able to

embrace Fe Arcilla when Antonio Arcilla
was stabbed by Fe Arcilla.
Q And you witnessed all these?
A Yes, sir and even my other child was
able to witness it. My other child fainted.
Q The one who was not asleep?
A Yes, sir, my daughter.
Q And you said that Fe Arcilla again
stabbed Antonio Arcilla for the second
time hitting him on the left thigh?
A When Fe Arcilla pulled the knife from
Antonio Arcilla's breast and then she
thrust (sic) it again on the left thigh.
Q How, will you demonstrate?
A At this juncture witness demonstrated
how Antonio Arcilla was stabbed for the
second time on the left thigh. Probably
the intention of Fe Arcilla was to stab the
genitals of Antonio Arcilla.
Q But she failed?
A Antonio Arcilla was hit on the left
thigh.
Q And he was facing Fe Arcilla?

A Yes, sir, that is why he was able to

embrace Fe Arcilla and even had a hard
time in pulling the knife that is why I
grabbed Antonio Arcilla on his back by
pulling his belt.
Q And so, you were at the back of
Antonio Arcilla when he was stabbed for
the second time?
A Yes, sir, going out of the sala because
Fe Arcilla passed by the sala as she
was going out of the room Fe Arcilla
passed by the right side.
Q And so, let us get this clear Fe Arcilla
stabbed Antonio Arcilla for the second
time using the same hand?
A Yes, sir, the same hand, the right
hand.
Q And it was done in the same manner
by which she made the first thrust?
A When she pulled the knife and made a
thrust and he was hit on the left thigh.
Q But by then Fe Arcilla was closer to
Antonio Arcilla than when she made the
first thrust?
A Yes, sir, because I was able to grab
him and she was able to pull the knife
and made the second thrust.

Q Romeo Lipio your brother was inside

the compound of your parent's house at
that time of the incident?
A Yes, sir, because he was in-charge of
the cooking of the food.
The records show that the demeanor of Lipio while on the witness stand
impressed the trial judge . In his Decision, the trial judge declared:
xxx xxx xxx
The court is then called upon (to) choose between these
two . . . opposing actions of incompatibles. The court is
wary and conscious of this state of things, so that it was
quite critical and keen in the observation of the witnesses
when they took the witness stand. The court was then
particularly watchful and paid strict attention when
prosecution witness Fe Arcilla, the accused herself,
testified. Lilia may be considered a biased witness
considering that she was the other woman in the life of
Antonio. They have lived together for quite a number of
years and in fact begotten two children out of their relation.
Fe Arcilla, however, could not be far behind. She may
likewise be considered as a biased witness on the footing
and level as Lilia, as she is the accused in this case. . . .
As seen and sensed by the court through a careful analytic
attention, Lilia was quite honest and sincere when she
took the witness stand. She was emphatic in her testimony
and straightforward. The court could not detect any
evasiveness in her testimony. She was composed and
cool.
The court, on the other hand, could feel any (sic)
perceived that the accused was not disturbed by the
incident which is quite unnatural. At times, she seemed to
he amused and would smile, although there was nothing
funny about the matter.

For the nth time, we reiterate that the trial court's assessment of the
credibility of witnesses deserves great respect since it has the important
opportunity to observe first-hand the expression and demeanor of the
10
witnesses at the trial. We find no cogent reason to depart from this well
settled rule.
Anent the third assignment of error, we have examined the testimony of
appellant and we are not convinced that the stabbing at bar was merely
accidental and through the own doing of the victim. The location of the
victim's wounds, the position of the accused and the victim, and their relative
strength negate the credence of appellant's story. Indeed, her claim that she
twisted her body at an angle that allowed the knife to pass just below her
armpit and pierce the victim's chest and left thigh, is incredulous. Evidence
to be believed must not only come from the mouth of a credible witness but
11
must also be credible in itself.
We also reject the contention of the accused that she was forced to use the
knife to resist the victim's assault. While the estranged couple had a heated
argument before the stabbing incident, the evidence shows that it was the
accused who provoked the victim. By her own admission, the victim initially
dissuaded her from making a scene. Nonetheless, she could not control her
emotion and she slapped the victim in front of his friends. Even
assumingarguendo, that the victim harmed her prior to the stabbing, there
was no reasonable necessity for her to use the knife as there were many
people outside the house who could readily render assistance to her.
We now come to the penalty imposed by the trial court in its amended
12
decision. In an on bane resolution, dated January 9, 1995, this Court
13
clarified its earlier held that "although ruling in People v. Lucas and section
17 of R.A. 7659 has fixed the duration of reclusion perpetua from twenty
years (20) and one (1) day to forty (40) years, there was no clear legislative
intent to alter its original classification as an indivisible penalty." In accord
with this clarification, the proper penalty to be imposed on the appellant
is reclusion perpetua without any divisible period. It is then needless to
address appellant's plea that the mitigating circumstance of voluntary
surrender be considered in her favor. appellant's voluntary surrender will not
alter her penalty of reclusion perpetua, the same being a single and
indivisible penalty.

WHEREFORE, premises considered, the assailed amended decision is

AFFIRMED, with modification that accused FE ARCILLA y CORNEJO is
sentenced to suffer the penalty of reclusion perpetua. No costs.
SO ORDERED.
Regalado, Romero, Mendoza and Torres, Jr., JJ., concur.

G.R. No. L-31665 August 6, 1975

LEONARDO ALMEDA, petitioner,
vs.
HON. ONOFRE A. VILLALUZ, in his capacity as presiding judge of the
Circuit Criminal Court, Seventh Judicial District, Pasig, Rizal, and HON.
GREGORIO PINEDA, City Fiscal of Pasay City, respondents.
Honorio Makalintal, Jr. for petitioner.

already pleaded not guilty to the information. The trial court nevertheless
granted the respondent fiscal's motion in open court. An oral motion for
reconsideration was denied.
Immediately thereafter, the assistant fiscal took hold of the original
information and, then and there, entered his amendment by annotating the
same on the back of the document. The petitioner forthwith moved for the
dismissal of the charge on the ground of double jeopardy, but this motion
and a motion for reconsideration were denied in open court.

Pasay City Fiscal Gregorio Pineda for respondent.

Hence, the present special civil action for certiorari with preliminary
injunction.

CASTRO, J.:

Two issues are posed to us for resolution: First, whether the respondent
judge has the authority to require a strictly cash bond and disallow the
petitioner's attempt to post a surety bond for his provisional liberty, and
second, whether the amendment to the information, after a plea of not guilty
thereto, was properly allowed in both substance and procedure.

The petitioner Leonardo Almeda (alias Nardong Paa) was charged, together
with five others, with the crime of qualified theft of a motor vehicle (criminal
case 285-Pasay) in the Circuit Criminal Court of Pasig, Rizal, presided by
the respondent Judge Onofre Villauz. The amount of the bond
recommended for the provisional release of Almeda was P15,000, and this
was approved by the respondent judge with a direction that it be posted
entirely in cash.
At the hearing of February 18, 1970, Almeda asked the trial court to allow
him to post a surety bond in lieu of the cash bond required of him. This
request was denied, and so was an oral motion for reconsideration, on the
ground that the amended information imputed habitual delinquency and
recidivism on the part of Almeda.
At the same hearing, the respondent city fiscal, thru his assistant, reiterated
his oral motion made at a previous hearing for amendment of the information
so as to include allegations of recidivism and habitual delinquency in the
particular case of Almeda. The latter vigorously objected, arguing that (a)
such an amendment was premature since no copies of prior conviction could
yet be presented in court, (b) the motion to amend should have been made
in writing in order to enable him to object formally, and (c) the proposed
amendment would place him in double jeopardy considering that he had

1. As defined by section 1 of Rule 114 of the Rules of Court, bail is "the

security required and given for the release of a person who is in the custody
of the law, that he will appear before any court in which his appearance may
be required as stipulated in the bail bond or recognizance." The purpose of
requiring bail is to relieve an accused from imprisonment until his conviction
1
and yet secure his appearance at the trial.
In this jurisdiction, the accused, as of right, is entitled to bail prior to
conviction except when he is charged with a capital offense and the
2
evidence of guilt is strong. This right is guaranteed by the Constitution, and
may not be denied even where the accused has previously escaped
3
4
detention, or by reason of his prior absconding. In order to safeguard the
right of an accused to bail, the Constitution further provides that "excessive
bail shall not be required." This is logical cause the imposition of an
unreasonable bail may negate the very right itself. We have thus held that
"where conditions imposed upon a defendant seeking bail would amount to a
refusal thereof and render nugatory the constitutional right to bail, we would
not hesitate to exercise our supervisory powers to provide the required
5
remedy."

Coming to the issue at hand, the amount fixed for bail, while reasonable if
considered in terms of surety or property bonds, may be excessive if
demanded in the form of cash. A surety or property bond does not require an
actual financial outlay on the part of the bondsman or the property owner,
and in the case of the bondsman the bond may be obtained by the accused
upon the payment of a relatively small premium. Only the reputation or credit
standing of the bondsman or the expectancy of the price at which the
property can be sold, is placed in the hands of the court to guarantee the
production of the body of the accused at the various proceedings leading to
his conviction or acquittal. Upon the other hand, the posting of a cash bond
would entail a transfer of assets into the possession of the court, and its
procurement could work untold hardship on the part of the accused as to
have the effect of altogether denying him his constitutional right to bail.
Aside from the foregoing, the condition that the accused may have
provisional liberty only upon his posting of a cash bond is abhorrent to the
nature of bail and transgresses our law on the matter. The sole purpose of
bail is to insure the attendance of the accused when required by the court,
and there should be no suggestion of penalty on the part of the accused nor
revenue on the part of the government. The allowance of a cash bond in lieu
of sureties is authorized in this jurisdiction only because our rules expressly
provide for it. Were this not the case, the posting of bail by depositing cash
with the court cannot be countenanced because, strictly speaking, the very
nature of bail presupposes the attendance of sureties to whom the body of
6
the prisoner can be delivered. And even where cash bail is allowed, the
option to deposit cash in lieu of a surety bond primarily belongs to the
accused. This is clearly deducible from the language of section 14 of Rule
114 of the Rules of Court:
SEC. 14. Deposit of money as bail. At any time after the
amount of bail is fixed by order, the defendant, instead of
giving bail, may deposit with the nearest collector of
internal revenue, or provincial, city, or municipal treasurer
the sum mentioned in the order, and upon delivering to the
court a proper certificate of the deposit, must be
discharged from custody. Money thus deposited, shall be
applied to the payment of the fine and costs for which
judgment may be given; and the surplus, if any, shall be
returned to the defendant.

Thus, the trial court may not reject otherwise acceptable sureties and insist
that the accused obtain his provisional liberty only thru a cash bond.
But while we repudiate the particular measure adopted by the respondent
judge, we cannot fault the motive that caused him to demur to the
7
petitioner's offer of a surety bond. Based on the petitioner's past record, the
range of his career in crime weighs heavily against letting him off easily on a
middling amount of bail. The likelihood of his jumping bail or committing
other harm to the citizenry while on provisional liberty is a consideration that
simply cannot be ignored.
Fortunately, the court is not without devices with which to meet the
situation. First, it could increase the amount of the bail bond to an
appropriate level. Second, as part of the power of the court over the person
of the accused and for the purpose of discouraging likely commission of
other crimes by a notorious defendant while on provisional liberty, the latter
could be required, as one of the conditions of his bail bond, to report in
person periodically to the court and make an accounting of his movements.
And third, the accused might be warned, though this warning is not essential
8
to the requirements of due process, that under the 1973 Constitution "Trial
may proceed notwithstanding his absence provided that he has been duly
notified and his failure to appear is unjustified."
With respect to the amount of the bail bond, the trial court is well advised to
consider, inter alia, the following factors, where applicable: (1) the ability of
the accused to give bail: (2) the nature of the offense; (3) the penalty for the
offense charged; (4) the character and reputation of the accused (5) the
health of the accused; (6) the character and strength of the evidence; (7) the
probability of the accused's appearance or non-appearance at the trial; (8)
forfeiture of previous bonds; (9) whether the accused was a fugitive from
justice when arrested; and (10) whether the accused is under bond for
appearance at trial in other cases. 9
It is not amiss, at this point, to remind all courts to exercise extreme care and
caution in the screening of bondsmen and sureties in regard to their
reputation, solvency and promptitude. Aside from the other precautions
hitherto considered useful courts should see to it that all surety bonds are
accompanied by corresponding clearances from the Office of the Insurance
Commissioner. Bondsmen who cannot make good their undertaking render
inutile all efforts at making the bail system work in this jurisdiction.

2. Anent the second issue posed by the petitioner, the amendment of the
information to include allegations of habitual delinquency and recidivism,
after a previous plea thereto by the accused, is valid and in no way violates
his right to be fully apprised before trial of the charges against him.
Under section 13 of Rule 110 of the Rules of Court, the trial court has
discretion to allow amendments to the information on all matters of form after
the defendant has pleaded and during the trial when the same can be done
without prejudice to the rights of the defendant. What are prohibited at this
stage of the proceedings are amendments in substance. And the substantial
matter in a complaint or information is the recital of facts constituting the
offense charged and determinative of the jurisdiction of the court. All other
10
matters are merely of form.
Under our law, a person is considered a habitual delinquent "if within a
period of ten years from the date of his release or last conviction of the
crimes of serious or less serious physical injuries, robo, hurto,
estafa or falsification, he is found guilty of any of said crimes a third time or
11
oftener." The law imposes an additional penalty based on the criminal
propensity of the accused apart from that provided by law for the last crime
of which he is found guilty. Habitual delinquency is not however, a crime in
12
itself, it is only a factor in determining a total penalty. Article 62 of the
Revised Penal Code which treats of habitual delinquency does not establish
a new crime, but only regulates the "effect of the attendance of mitigating or
aggravating circumstances and of habitual delinquency." as its caption
indicates. In fact, the provision on habitual delinquency is found in a section
of the Code prescribing rules for the application of penalties, not in a section
13
defining offense. A recidivist, upon the other hand, is one who, at the time
of his trial for one crime, shall have been previously convicted by final
judgment of another crime embraced in the same title of the Revised Penal
Code. Recidivism is likewise not a criminal offense; it is but one of the
14
aggravating circumstances enumerated by the said Code.
The additional allegations of habitual delinquency and recidivism do not have
the effect of charging another offense different or distinct from the charge of
qualified theft (of a motor vehicle) contained in the information. Neither do
they tend to correct any defect in the jurisdiction of the trial court over the
subject-matter of the case. The said new allegations relate only to the range
of the penalty that the court might impose in the event of conviction. They do
not alter the prosecution's theory of the case nor possibly prejudice the form

of defense the accused has or will assume. Consequently, in authorizing the

amendments, the respondent judge acted with due consideration of the
petitioner's rights and did not abuse his discretion.
Anent the petitioner's claim that the amendment of the information by the
State places him in double jeopardy, it should be remembered that there is
double jeopardy only when all the following requisites obtain in the original
prosecution; (a) a valid complaint or information; (b) a competent court; (c)
the defendant had pleaded to the charge; and (d) the defendant was
acquitted, or convicted, or the case against him was dismissed or otherwise
15
terminated without his consent.
It is clear that the petitioner Almeda has not yet been convicted nor acquitted
of the charge of qualified theft of a motor vehicle contained in the original
information. Neither has the case against him been dismissed or otherwise
terminated. The mere amendment of the information to include allegations of
habitual delinquency and recidivism does not have the effect of a dismissal
16
of the criminal action for qualified theft alleged in the original information.
It cannot likewise be said that the accused is being placed in jeopardy a
second time for the past crimes of which he had been convicted. The
constitutional objection, on the ground of double jeopardy, to the statute
providing an additional penalty to be meted out to habitual delinquents, has
17
long been rejected.
The procedure taken by the respondent fiscal and allowed by the respondent
judge in the amendment of the information does not, however, merit our
approbation. Under section 2 of Rule 15 of the Rules of Court, "all motions
shall be made in writing except motions for continuance made in the
presence of the adverse party, or those made in the course of a hearing or
trial." A motion to amend the information, after the accused has pleaded
thereto, is certainly one that should be placed in writing and properly set for
hearing. We are loath to give our imprimatur to the kind of shortcut devised
by the respondents, especially as it relates to an alteration in the information.
Considering, however, that the petitioner was not deprived of his day in court
and was in fact given advance warning of the proposed amendment,
although orally, we refrain from disturbing the said amendment.

ACCORDINGLY, the order of the respondent judge of February 18, 1970

denying the motion of the petitioner Almeda that he be allowed to post a
surety bond instead of a cash bond is hereby set aside, without prejudice,
however, to increasing the amount of the bail bond and/or the imposition of
such conditions as the respondent judge might consider desirable and
proper for the purpose of insuring the attendance of the petitioner at the trial,
provided they are consistent with the views herein expressed. No costs.
Makasiar, Esguerra, Muoz Palma and Martin, JJ., concur.
Teehankee, J., is on leave.

[G.R. No. 69863-65 : December 10, 1990.]

192 SCRA 183
LINO BROCKA, BENJAMIN CERVANTES, COSME GARCIA, RODOLFO
SANTOS, VALENTINO SALIPSIP, RICARDO VEGA, ERIC MARIANO,
JOSE EMMANUEL OYALES, RONNIE MATTA, ALFREDO VIAJE, RUBEN
EUGENIO, REYNALDO ORTIZ, ORLANDO ORTIZ, NOEL REYES,
EDUARDO IMPERIAL, NESTOR SARMIENTO, FRANCO PALISOC,
VIRGILIO DE GUZMAN, ALBERTO REYES, JESSIE PINILI, ROMULO
AUGUIS, DOMINADOR RESURRECION III, RONNIE LAYGO, ROSAURO
ROQUE, CLARENCE SORIANO, OCTAVO DEPAWA, CARLITO LA
TORRE, SEVERNO ILANO, JR., DOMINGO CAJIPE, ALAN ALEGRE,
RAMON MARTINEZ, MA. GILDA HERNANDEZ, EDNA P. VILLANUEVA,
DOLLY S. CANU, MELQUIADES C. ATIENZA, ELIGIO P. VERA CRUZ,
ROGER C. BAGAN, ABUNDIO M. CALISTE, Petitioners, vs. JUAN
PONCE ENRILE, MAJ. GENERAL FIDEL V. RAMOS, BRIG. GENERAL
PEDRO BALBANERO, COL. ABAD, COL. DAWIS, SERGIO APOSTOL,
P/LT, RODOLFO M. GARCIA and JUDGE RICARDO TENSUAN,
Respondents.

DECISION

MEDIALDEA, J.:

This petition was originally filed on February 13, 1985 to secure the release
of petitioners on habeas corpus and to permanently enjoin the City Fiscal of
Quezon City from investigating charges of "Inciting to Sedition" against
petitioners Lino Brocka, Benjamin Cervantes, Cosme Garcia and Rodolfo
Santos, (hereafter Brocka, et al.). On learning that the corresponding
informations for this offense has been filed by the City Fiscal against them
on February 11, 1985, a supplemental petition was filed on February 19,
1985 (p. 51, Rollo) to implead 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 the
provisional release of Brocka, et al., the issue on habeas corpus has
become moot and academic (p. 396, Rollo). We shall thus focus on the

question of whether or not the prosecution 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 District following the forcible and violent dispersal of a demonstration
held in sympathy with the jeepney strike called by the Alliance of Concerned
Transport Organization (ACTO). Thereafter, they were charged with Illegal
Assembly in Criminal Cases Nos. 37783, 37787 and 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 and for whom no bail was recommended, the other
petitioners were released on bail of P3,000.00 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 Q38025 (p. 349, Rollo), without prior notice to their counsel (p. 7, Rollo). The
original informations filed recommended no bail (p. 349, Rollo). The
circumstances surrounding the hasty filing of this second offense are 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 starkly bizarre when we consider that as early as 10:30 A.M.
today, February 11, 1985, Benjamin Cervantes was able to contact
undersigned petitioner by phone informing counsel that said Benjamin
Cervantes and the 4 other persons who are the subjects of this petition will
be brought before the Quezon City Fiscal at 2:30 for undisclosed reasons:
subsequently, another phone call was received by petitioning counsel
informing him that the appearance of Benjamin Cervantes et al. was to be at
2:00 P.M. When petitioning counsel arrived in the office of Assistant City
Fiscal Arturo Tugonon, the complainants' affidavits had not yet been
received by any of the panel of three assistant city fiscals, although the five

persons under detention were already in the office of said assistant fiscal as
early as 2:00 P.M. It was only at 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, whereupon undersigned
counsel asked respondent Colonel Agapito Abad 'who ordered the detained
persons to be brought to the office of Assistant Fiscal Arturo Tugonon since
there were no charges on file;' and said Colonel Agapito Abad said aloud: 'I
only received a telephone call from Colonel Arzaga about 11:00 A.M. to
bring the detained persons today I am only the custodian.' At 3:15,
petitioning counsel inquired from the Records Custodian when the charges
against Lino Broka (sic) had been officially received and he was informed
that the said charges were never coursed through the Records Office.
"7. Under the facts narrated above, respondents have conspired to use the
strong arm of the law and hatched the nefarious scheme to deprive Lino
Broka (sic) et al. the right to bail because the utterances allegedly
constituting inciting to sedition under Article 142 of the Revised Penal Code
are, except for varying nuances, almost verbatim the same utterances which
are the subject of Criminal Cases No. 37783, 37787 and 37788 and for
which said detained 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 to be violative of Article 142 of the
Revised Penal Code are: 'Makiisa sa mga drivers, "Makiisa sa aming
layunin, "Digmaang bayan ang sagot sa kahirapan,' Itigil ang pakikialam ng
imperyalismo 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 that they be given 7 days within which said counsel may confer
with their clients the detained persons named above, the panel of
assistant fiscals demanded that said detained persons should sign a 'waiver'
of their rights under Article 125 of the Revised Penal Code as a condition for
the grant of said request, which is a harassing requirement considering that
Lino Broka (sic) et al. were already under the detention, albeit illegally, and
they could not have waived the right under Rule 125 which they did not enjoy
at the time the ruling was made by the panel of assistant city fiscals." (pp. 46, 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 behalf of Lino Brocka, Benjamin Cervantes, Cosme
Garcia, Alexander Luzano, and Rodolfo Santos, who were all detained under
a Preventive Detention Action (PDA) issued by then President Ferdinand E.
Marcos on January 28, 1985. They were charged in three separate
informations of the crime of illegal assembly under Art. 146, paragraph 3 of
the Revised Penal Code, as amended by PD 1834. On February 7, 1985,
the Honorable Miriam Defensor Santiago, Regional Trial Judge of Quezon
City, issued a resolution in the above criminal cases, 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, the
accused filed their respective bail bonds. This notwithstanding, they
continued to be held in detention by order of the respondent colonels; and on
February 11, 1985, these same accused were 'reinvestigated,' this time on
charges of 'inciting to sedition' ** under Art. 142 of the Revised Penal Code,
following which corresponding cases were filed. The respondents complied
with Our resolution requiring them, inter alia, to make a RETURN of the writ
of habeas corpus. In their RETURN, it appeared that all the accused had
already been released, 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 the accused continue to be in the
custody of the law under an invalid charge of inciting to sedition." (p. 395,
Rollo).
Hence, this petition.
Brocka, et al. contend that respondents' manifest bad faith and/or
harassment are sufficient bases for enjoining their criminal prosecution,
aside from the fact that the second offense of inciting to sedition is illegal,
since it is premised on one and the same act of attending and participating in
the ACTO jeepney strike. They maintain that while there may be a complex
crime from a single act (Art. 48, RTC), the law does not allow the splitting of
a single act into two offenses and filing two informations therefor, further,
that they will be placed in double jeopardy.
The primary issue here is the legality of enjoining the criminal prosecution of
a case, since the two other issues raised by Brocka, et al. are matters of
defense against the sedition charge.
We rule in favor of Brocka, et al. and enjoin their criminal prosecution for the
second offense of inciting to sedition.

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

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

"a. To afford adequate protection to the constitutional rights of the accused

(Hernandez vs. Albano, et al., L-19272, January 25, 1967, 19 SCRA 95);

Respondents, on the other hand, had invoked a PDA in refusing Brocka, et

al.'s release from detention (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 the trial court's order of
release). Under the guidelines issued, PDAs shall be invoked within 24
hours (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 xerox copy of the invoked PDA
(par. 4, Counter-Rejoinder, p. 367, Rollo).

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

oppression or multiplicity of actions (Dimayuga, et al. vs. Fernandez, 43
Phil. 304; Hernandez vs. 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
(Young vs. 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 (Recto vs. 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 on that ground has been denied (Salonga vs. Pao, et al.,
L-59524, February 18, 1985, 134 SCRA 438).
"7. Preliminary injunction has been issued by the Supreme Court to prevent
the threatened unlawful arrest of petitioners (Rodriguez vs. Castelo, L-6374,
August 1, 1958)." (cited in Regalado, Remedial Law Compendium, p. 188,
1988 Ed.)

The foregoing circumstances were not disputed by the Solicitor General's

office. In fact they found 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 charges against Brocka, et al.
We have expressed Our view in the Ilagan case that "individuals against
whom PDAs have been issued should be furnished with the original, and the
duplicate original, and a certified true copy issued by the official having
official custody of the PDA, at the time of the apprehension" (supra, p. 369).
We do not begrudge the zeal that may characterize a public official's
prosecution of criminal offenders. We, however, believe that this should not
be a license to run roughshod over a citizen's basic constitutional lights,
such as due process, or manipulate the law to suit dictatorial tendencies.
We are impelled to point out a citizen's helplessness against the awesome
powers of a dictatorship. Thus, while We agree with the Solicitor General's
observation and/or manifestation 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 and inoperational
PDA and the sham and hasty preliminary investigation were clear signals
that the 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 of arrest anew. As a matter of fact the
corresponding informations for this second offense were hastily filed on

February 11, 1985, or two days after Brocka, et al.'s release from detention
was ordered by the trial judge on February 9, 1985.
Constitutional rights must be upheld at all costs, for this gesture is the true
sign of democracy. These may not be set aside to satisfy perceived illusory
visions of national grandeur.: nad
In the case of J. Salonga v. Cruz Pao, We point out:
"Infinitely more important than conventional adherence to general rules of
criminal procedure is respect for the citizen's right to be free not only from
arbitrary arrest and punishment 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 of criminal charges, as in the instant case where Brocka, et al. were
barred from enjoying provisional release until such time that charges

were filed, and where a sham preliminary investigation was hastily

conducted, charges that are filed as a result should lawfully be
enjoined.
ACCORDINGLY, the petition is hereby GRANTED. The trial court is
PERMANENTLY ENJOINED from 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.

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, represented by 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 a criminal case filed by the Provincial Fiscal upon instructions of the
Secretary of Justice to whom the case was elevated for review, may refuse
to grant the motion and insist on the arraignment and trial on the merits.
On April 18, 1977 Assistant Fiscal Proceso K. de Gala with the approval of
the Provincial Fiscal filed an information for estafa against Mario Fl. Crespo
in the Circuit Criminal 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 to defer arraignment on the ground that there was
a pending petition for review filed with the Secretary of Justice of the
resolution of the Office of the Provincial Fiscal for the filing of the information.
In an order of August 1, 1977, the presiding judge, His Honor, Leodegario L.
2
Mogul, denied the motion. A motion for reconsideration of the order was
denied 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
3
appellate court.
A petition for certiorari and prohibition with prayer for a preliminary writ of
injunction was filed by the accused in the Court of Appeals that was
4
docketed as CA-G.R. SP No. 06978. In an order of August 17, 1977 the
Court of Appeals restrained Judge Mogul from proceeding with the
5
arraignment of the accused until further orders of the Court. In a comment
that was filed by the Solicitor General he recommended that the petition be
6
given due course. 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 to compel the arraignment of the accused in the case
until the Department of Justice shall have finally resolved the petition for
7
review.
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
8
of the information filed against the accused. A motion to dismiss for
insufficiency of evidence was filed by the Provincial Fiscal dated April 10,
9
1978 with the trial court, attaching thereto a copy of the letter of
Undersecretary Macaraig, Jr. In an order of August 2, 1978 the private
prosecutor was given time to file an opposition thereto. 10 On November 24,
1978 the Judge denied the motion and set the arraigniment stating:
ORDER
For resolution is a motion to dismiss this rase filed by the
procuting fiscal premised on insufficiency of evidence, as
suggested by the Undersecretary of Justice, evident from
Annex "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
a pre-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 on evidence not before it but
on that adduced before the Undersecretary of Justice, a
matter that not only disregards the requirements of due
process but also erodes the Court's independence and
integrity, the motion is considered as without merit and
therefore hereby DENIED.
WHEREFORE, let the arraignment be, as it is hereby set
for December 18, 1978 at 9:00 o'clock in the moming.
SO ORDERED. 11

The accused then filed a petition for certiorari, prohibition and mandamus
with petition for the issuance of preliminary writ of prohibition and/or
temporary restraining order in the 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 act of arraignment of
the accused until further orders from the Court. 13 In a decision of October
25, 1979 the Court of Appeals dismissed the petition and lifted the
restraining order of January 23, 1979. 14 A motion for reconsideration of
said decision filed by the accused 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 perpetually enjoined from enforcing his threat to proceed with the
arraignment and trial of petitioner in said criminal case, declaring the
information filed not valid and of no legal force and effect, ordering
respondent Judge to dismiss the said case, and declaring the obligation of
petitioner as purely civil. 16
In a resolution of May 19, 1980, the Second Division of this Court without
giving due course to the petition required the respondents to comment to the
petition, not to file a motiod to dismiss, within ten (10) days from notice. In
the comment filed by the Solicitor General he recommends that the petition
be given due course, it being meritorious. Private respondent through
counsel filed his reply to the comment and a separate conunent to the
petition asking that the petition be dismissed. In the resolution of February 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
Banc resolved to give due course to the petition.
Petitioner and private respondent filed their respective briefs while the
Solicitor General filed a Manifestation in lieu of brief reiterating that the
decision of the respondent Court of Appeals be reversed and that
respondent Judge be ordered to dismiss the information.
It is a cardinal principle that an criminal actions either commenced by
complaint or by information shall be prosecuted under the direction and
control of the fiscal. 17 The institution 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 the offended party,

according to whether the evidence in his opinion, is sufficient or not to

establish the guilt of the accused beyond reasonable doubt. 18 The reason
for placing the criminal prosecution under the direction and control of the
fiscal is to prevent malicious or unfounded prosecution by private
20
persons. 19 It cannot be controlled by the complainant. Prosecuting
officers under the power vested in them by law, not only have the authority
but also the duty of prosecuting persons who, according to the evidence
received from the complainant, are shown to be guilty of a crime committed
21
within the jurisdiction of their office. They have equally the legal duty not to
prosecute when after an investigation they become convinced that the
22
evidence adduced is not sufficient to establish a prima facie case.
23

It is through the conduct of a preliminary investigation that the fiscal

determines the existence of a puma facie case that would warrant the
prosecution of a case. The Courts cannot interfere with the fiscal's discretion
and control of the criminal prosecution. It is not prudent or even permissible
for a Court to compel the fiscal to prosecute a proceeding originally initiated
by him on an information, if he finds that the evidence relied upon by him is
24
insufficient for conviction. Neither has the Court any power to order the
fiscal to prosecute or file an information within a certain period of time, since
this would interfere with the fiscal's discretion and control of criminal
25
prosecutions. Thus, a fiscal who asks for the dismissal of the case for
insufficiency of evidence has authority to do so, and Courts that grant the
26
same commit no error. The fiscal 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 be established beyond
27
reasonable doubt. In a clash of views between the judge who did not
investigate and the fiscal who did, or between the fiscal and the offended
28
party or the defendant, those of the Fiscal's should normally prevail. On
the other hand, neither an injunction, preliminary or final nor a writ of
prohibition may be issued by the courts to restrain a criminal
29
prosecution except in the extreme case where it is necessary for the
Courts to do so for the orderly administration of justice or to prevent the use
30
of the strong arm of the law in an op pressive and vindictive manner.
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 of Justice 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 be filed in Court or
31
otherwise, that an information be filed in Court.
The filing of a complaint or information in Court initiates a criminal action.
The Court thereby acquires jurisdiction over the case, which is the authority
32
to hear and determine the case. When after the filing of the complaint or
information a warrant for the arrest of the accused is issued by the trial court
and the accused either voluntarily submited himself to the Court or was duly
arrested, the Court thereby acquired jurisdiction over the person of the
33
accused.
The preliminary investigation conducted by the fiscal for the purpose of
determining whether a prima facie case exists warranting the prosecution of
the accused is terminated 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 in Court. Should the fiscal find it
proper to conduct a reinvestigation of the case, at such stage, the
permission of the Court must be secured. After such reinvestigation the
finding and recommendations of the fiscal should be submitted to the Court
34
for appropriate action. While it is true that the fiscal has the quasi
judicial discretion to determine whether or not a criminal case should be filed
in court or not, once the case had already been brought to Court whatever
disposition the fiscal may feel should be proper in the rase thereafter should
35
be addressed for the consideration of the Court, The only qualification is
that the action of the Court must not impair the substantial rights of the
36
36
accused. or the right of the People to due process of law. a
Whether the accused had been arraigned or not and whether it was due to a
reinvestigation by the fiscal or a review by the Secretary of Justice whereby
a motion to dismiss was submitted to the Court, the Court in the exercise of
its discretion may grant the motion or deny it and require that the trial on the
merits proceed for the proper determination of the case.
However, one may ask, if the trial court refuses to grant the motion to
dismiss filed by the fiscal upon the directive of the Secretary of Justice will
there not be a vacuum in the prosecution? A state prosecutor to handle the
case cannot possibly be designated by the Secretary of Justice who does
not believe that there is a basis for prosecution nor can the fiscal be
expected to handle the prosecution of the case thereby defying the superior
order of the Secretary of Justice.

The answer is simple. The role of the fiscal or prosecutor as We all know is
to see that justice is done and not necessarily to secure the conviction of the
person accused before the Courts. Thus, in spite of his opinion to the
contrary, it is the duty of the fiscal to proceed with the presentation of
evidence of the prosecution to the Court to enable the Court to arrive at its
own independent judgment as to whether the accused should be convicted
or acquitted. The fiscal should not shirk from the responsibility of appearing
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
private prosecutor for then the entire proceedings will be null and
37
void. The least that the fiscal should do is to continue to appear for the
prosecution although he may turn over the presentation of the evidence to
38
the private prosecutor but still under his direction and control.
The rule therefore in this jurisdiction is that once a complaint or information is
filed in Court any disposition of the case as its dismissal or the conviction or
acquittal of the accused rests in the sound discretion of the Court. Although
the fiscal retains the direction and control of the prosecution of criminal
cases even while the case is already in 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 its exclusive
jurisdiction and competence. A motion to dismiss the case filed by the fiscal
should be addressed to the Court who has the option to grant or deny the
same. It does not matter if this is done before or after the arraignment of the
accused or that the motion was filed after a reinvestigation or upon
instructions of the Secretary of Justice who reviewed the records of the
investigation.
In order therefor to avoid such a situation whereby the opinion of the
Secretary of Justice who reviewed the action of the fiscal may be
disregarded by the trial court, the Secretary of Justice should, as far as
practicable, refrain from entertaining a petition for review 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 of the Court.
WHEREFORE, the petition is DISMISSED for lack of merit without
pronouncement as to costs.
SO ORDERED.

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

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

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 Regional Trial Court of Caloocan City, Branch
CXXV, National Capital Region and PEOPLE OF THE
PHILIPPINES, respondents.

On January 19, 1983, the third resetting of the case was also canceled, no
8
reason appearing in the record.
On February 21, 1983, no trial could be held again, the because witnesses
9
being absent.
On March 21, 1983, the trial was reset once more, again because the
10
prosecution witnesses were absent.

Sanchez & Montebon Law Office for petitioner.

On April 19, 1983, the trial of the case had not yet started. It was reset
11
because the prosecution witnesses were again absent.
CRUZ, J.:
We deal with a simple matter that should not detain us too long. Fittingly, we
shall decide it in favor of individual liberty rather than upon rebuttable
presumptions and dubious implications.
The facts are simple and mostly undisputed.

On June 3, 1983, a sheriffs return informed the trial court that the
prosecution witnesses, namely, Capt. Carlos Dacanay and Sgt. Bonifacio
Lustado had been personally served with subpoena to appear and testify at
12
the hearing scheduled on June 6, 1983.
On June 6, 1983, the trial was again postponed, this time because there was
13
no trial fiscal.

On November 21, 1981, petitioner Joel Caes was charged in two separate
informations with illegal possession of firearms and illegal possession of
1
marijuana before the Court of First Instance of Rizal. The cases were
2
consolidated on December 10, 1981.
Arraignment was originally scheduled on January 11, 1982, but was for
3
some reason postponed.
4

On August 31, 1982, Caes was arraigned and pleaded not guilty. Trial was
scheduled for October 13, 1982, but this was reset upon agreement of the
5
parties.
On November 15, 1982, the trial was again postponed for reasons that do
6
not appear in the record.

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

15
the parties.
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 case because its witnesses had not appeared. On the same date,
Judge Alfredo M. Gorgonio issued the following order:
In view of the failure of the prosecution witnesses to
appear on several scheduled hearing and also for the
hearing today which is an indication of lack of interest,

upon motion of the trial fiscal for the provisional dismissal

of these cases and with the conformity of the accused, the
above-entitled cases are hereby ordered Provisionally
17
Dismissed, with costs de oficio.
On January 9, 1984, a motion to revive the cases was filed by Maj. Dacanay
(he had been promoted in the meantime) and Sgt. Lustado who alleged that
they could not attend the hearing scheduled on November 14, 1983, for lack
18
of notice. Copy of the motion 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 the complaining witnesses to
which no opposition has been filed either by the Fiscal or
the defense, and considering that the dismissal of these
cases was only provisional, for reasons stated in the
motion, the same is granted.
WHEREFORE, let these cases be set anew for hearing on
19
June 13, 1984 at 8:30 in the morning.
A motion for reconsideration filed by the petitioner dated June 7, 1984, was
denied on October 9, 1984, and the revived cases were set from hearing on
20
November 19, 1984.
The petitioner questioned the judge's order on certiorari with this Court,
which reffered his petition to the respondent court. The petition there was
dismissed for lack of merit on May 20, 1986, and reconsideration was denied
21
on June 17, 1986. Caes then came to us again.
The present petition is based on two arguments, to wit: (a) that the motion to
revive the cases was invalid because it was riot filed by the proper party nor
was a copy served on the 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

22
the government prosecutor and must always be under his control. This is
true even if a private prosecutor is allowed to assist him and actually handles
the examination of the witnesses and the introduction of other
23
evidence. The witnesses, even if they are the complaining witnesses,
cannot act for the prosecutor in the handling of the case. Although they may
ask for the filing of the case, they have no personality to move for its
dismissal or revival as they are not even parties thereto nor do they
represent the parties to the action. Their only function is to testify. In a
criminal prosecution, the plaintiff 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 (who never even testified) should have been summarily dismissed
by the trial judge. The mere fact that the government prosecutor was
furnished a copy of the motion and he did 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. The presumption that
he approved of the motion is not enough, especially since we are dealing
here with the liberty of a person who had a right at least to be notified of the
move to prosecute him again. The fact that he was not so informed made the
irregularity even more serious. It is curious that the motion was granted just
the same, and ex parte at 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 has not attached because the case was only provisionally
dismissed and it was with the conformity of the accused. The petitioner
denies that he consented to the dismissal and submits that the dismissal
was final notwithstanding its description.
Fittingly described as "res judicata in prison grey," the right against double
jeopardy prohibits the prosecution of a person for a crime of which he has
been previously acquitted or convicted. The purpose is to set the effects of
the first prosecution forever at 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.
24

It has been held in a long line of cases that to constitute double jeopardy,
there must be: (a) a valid complaint or information; (b) filed before a

competent court; (c) to which the defendant had pleaded; and (d) of which
he had been previously acquitted or convicted 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. What we must resolve is the effect of the dismissal, which the petitioner
contends finally and irrevocably terminated the two cases against him. His
submission is that the dismissal was not provisional simply because it was
so designated, more so since he had not expressly consented thereto.
It is settled that a case may be dismissed if the dismissal is made on motion
of the accused himself or on motion of the prosecution with the express
25
consent of the accused. Such a dismissal is correctly denominated
provisional. But a dismissal is not provisional even if so designated if it is
shown that it was made without the express consent of the accused. This
consent cannot be presumed nor may it be merely implied from the
defendant's silence or his failure to object. As we have held in a number of
cases, such consent must be express, so as to leave no doubt as to the
26
defendant's conformity. Otherwise, the dismissal will be regarded as final,
i.e., with prejudice to the 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 accused himself. The first is where the dismissal is based on a
demurrer to the evidence filed by the accused after the prosecution has
rested. Such dismissal has the effect of a judgment on the merits and
27
operates as an acquittal. In People v. City of Silay, for example, the trial
court dismissed the case on motion of the accused on the ground of
insufficiency of the prosecution evidence. The government came to this
Court on certiorari, and the accused pleaded double jeopardy. Our finding
was that the case should not have been dismissed because the evidence
submitted by the prosecution was not insufficient. Even so, the petitioner had
to be denied relief because the dismissal 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 be
lighted 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
28
ofConde v. Rivera is still valid doctrine. Here the prosecution was
dismissed because the accused was made to "dance attendance on courts"
and subjected to no less than eight unjustified postponements extending
over a year that unduly delayed her trial. In dismissing the charges against
her, Justice Malcolm declared for a unanimous Supreme Court:
On the one hand has been the petitioner, of humble
station, without resources, but fortunately assisted by a
persistent lawyer, while on the other hand has been the
Government of the Philippine Islands which should be the
last to set an example of delay and oppression in the
administration of justice. The Court is thus under a moral
and legal obligation to see that these proceedings come to
an end and that the accused is discharged 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 a reasonable period of time, as in this
instance for more than a year, the accused is entitled to
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 were dismissed on November 14, 1983,
following elevenpostponements of the scheduled hearings, mostly because
the prosecution was not prepared. The accused was never absent at these
aborted hearings. He was prepared to be tried, but either the witnesses
against him were not present, or the prosecutor himself was absent, or the
court lacked material time. Meantime, the charges against him continued to
hang over his head even as he was not given an opportunity to deny them
because his trial could not be held.
Under these circumstances, Caes could have himself moved for the
dismissal of the cases on the ground of the denial of his right to a speedy
29
trial. This would have been in keeping with People v. Cloribel, where the
case dragged for almost four years due to numerous postponements, mostly
at the instance of the prosecution, and was finally dismissed 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 but an
acquittal. For it was entered upon the defendants' insistence on their
constitutional right to speedy trial and by reason of the prosecution's failure
to appear on the date of trial."

charges. The other possibility, and it is certainly worse, is that a guilty person
has been allowed to escape the penalties 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 City Prosecutor of Caloocan
City for its negligence and ineptitude.

The circumstance that the dismissal of the cases against the petitioner was
described by the trial judge as "provisional" did not change the nature of that
dismissal. As it was based on the "lack of interest" of the prosecutor and the
consequent delay in the trial of the cases, it was final and operated as an
acquittal of the accused on the merits. No less importantly, there is no proof
that Caes expressly concurred in the provisional dismissal. Implied consent,
as we have repeatedly held, is not enough; neither may it be lightly inferred
from the presumption of regularity, for we are dealing here with the alleged
waiver of a constitutional right. Any doubt on this matter must be resolved in
favor of the accused.

WHEREFORE, the petition is GRANTED. The challenged decision of the

respondent court dated May 20, 1986, and the orders of the trial court dated
May 18, 1984, and October 9, 1984, are SET ASIDE. The dismissal of
Criminal Cases Nos. C-16411(81) and C-16412(81) is hereby declared as
final.

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

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

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 of conscientiousness in the discharge of its duties. The
informations appear to have been filed in haste, without first insuring the
necessary evidence to support them. The prosecution witnesses repeatedly
failed to appear at the scheduled hearings and all the prosecution did was to
perfunctorily move for a resetting, without exerting earnest efforts to secure
their attendance. In the end, it moved for the "provisional" dismissal of the
cases without realizing, because it had not studied the matter more carefully,
that such dismissal would have the effect of barring their reinstatement.
Characteristically, it was also non-committal on the motion to revive the
cases filed by the prosecution witnesses only, thereby surrendering, by its
own silence, its authority in conducting the prosecution.
It is possible that as a result of its in attention, the petitioner has been
needlessly molested if not permanently stigmatized by the unproved

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

SO ORDERED.

G.R. No. L-38634 June 20, 1988

REPUBLIC OF THE PHILIPPINES, (PEOPLE OF THE
PHILIPPINES), petitioner,
vs.
HON. DELFIN VIR. SUNGA, as Presiding Judge, CFI Branch I,
Camarines Sur, ARISTON ANADILLA, RAFAEL ANADILLA and JOSE
ANADILLA, respondents.

PADILLA, J.:
This is a petition for review on certiorari of the order * of the Court of First
Instance of Camarines Sur, 10th Judicial District, Branch I, dated 20 March
1974, dismissing motu proprio Criminal Case No. L-244, entitled "People of
the Philippines, Complainant versus Ariston Anadilla, Rafael Anadilla and
Jose Anadilla, Accused," as well as of the order dated 22 April 1974 of the
same court denying the motion for reconsideration of said earlier order.
The facts are not disputed.
On 10 August 1964, an information for Attempted Homicide was filed by the
Provincial Fiscal of Camarines Sur against accused-private respondents
Rafael Anadilla, Ariston Anadilla and Jose Anadilla. Trial of the case was set
on 11 and 12 March 1974. The hearing set on 11 March 1974 was, however,
postponed in view of the absence of one of the accused, respondent Rafael
Anadilla who had not yet been arrested by the police authorities. On the
same date, the court a quo issued an order for the arrest of said accused,
and at the same time set the trial of the case for 29 and 30 July 1974.
On 20 March 1974, the court a quo issued the now assailed order which
reads:
Considering that the offended party, Jose Dadis is no
longer interested in the further prosecution of this case
and there being no objection on the part of the accused

Ariston Anadilla, Rafael Anadilla and Jose Anadilla, this

case is hereby DISMISSED with costs de oficio.
Consequently, the order of arrest issued by this Court
against the accused Rafael Anadilla dated March 11,
1974, is hereby ordered lifted and has no force and effect.
The bail bond posted for the provisional liberty of the
accused is hereby ordered cancelled.
In the case of Ariston Anadilla and Jose Anadilla, the
Provincial Warden is hereby ordered to release said
accused from their detention immediately upon receipt of
this order.
SO ORDERED.

The affidavit of desistance, relied upon by the aforequoted order, was

executed by the offended party on 20 March 1974 and subscribed and sworn
to before the branch Clerk of Court Atty. R.B. Torrecampo. It alleged, among
others, that:
That he was the complainant in Criminal Case No. L-244,
entitled, People vs. Ariston Anadilla, et al., for Attempted
Homicide, which case is pending before the first branch of
this Court; that he is no longer interested in the further
prosecution of this case and that he has already forgiven
the accused for their acts; that his material witnesses
could no longer be contacted and that without their
testimonies, the guilt of the accused cannot be proven
beyond reasonable doubt, and that in view of these
circumstances, he requests the Prosecuting Fiscal for the
2
dismissal of the said case.
The Provincial Fiscal moved to reconsider the order of dismissal. This was
3
denied by the court a quo in an order dated 22 April 1974. This petition was
thereupon filed before this Court.

The issue in this petition is whether the courta a quo may dismiss a criminal
case on the basis of an affidavit of desistance executed by the offended
party, but without a motion to dismiss filed by the prosecuting fiscal.
4

The issue presented is not novel. In Crespo v. Mogul, promulgated on 30

June 1987, the Court had occasion to state the rule in regard to the
respective powers of the prosecuting fiscal and the court, after the complaint
or information has been filed in court. In said case, the issue raised was
whether the trial court, acting on a motion to dismiss a criminal case filed by
the Provincial Fiscal upon instructions of the Secretary of Justice to whom
the case was elevated for review, may refuse to grant the motion and insist
on the arraignment and trial of the case on the merits.
In the Crespo case, an information for Estafa had already been filed by the
Assistant Fiscal before the Circuit Criminal Court of Lucena City.
Arraignment of the accused and trial of the case were, however, deferred
because of a pending appeal by the accused/respondent to the Secretary of
Justice. Reversing the resolution of the Office of the Provincial Fiscal, the
Undersecretary of Justice directed the fiscal to move for immediate dismissal
of the information filed against the accused. Upon such instructions, the
Provincial Fiscal filed a motion to dismiss for insufficiency of evidence. The
Judge denied the motion and set the arraignment. On a certiorari recourse to
the Court of Appeals, the petition was dismissed. Review of the Court of
Appeals decision was then sought by the accused with this Court, raising the
issue previously stated herein, Resolving, the Court held:
xxx xxx xxx
The filing of a complaint or information in Court initiates a
criminal action. The Court thereby acquires jurisdiction
over the case, which is the authority to hear and determine
the case. When after the filing of the complaint or
information a warrant for the arrest of the accused is
issued by the trial court and the accused either voluntarily
submitted himself to the Court or was duly arrested, the
Court thereby acquired jurisdiction over the person of the
accused.

The preliminary investigation conducted by the fiscal for

the purpose of determining whether a prima facie case
exists warranting the prosecution of the accused is
terminated 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 in
Court. Should the fiscal find it proper to conduct a
reinvestigation of the case, at such stage, the permission
of the Court must be secured. After such reinvestigation
the finding and recommendations of the fiscal should be
submitted to the Court for appropriate action. While it is
true that the fiscal has the quasi-judicial discretion to
determine whether or not a criminal case should be filed in
court or not [sic], once the case had already been brought
to Court whatever disposition the fiscal may feel should be
proper in the case thereafter should be addressed for the
consideration of the Court. The only qualification is that the
action of the Court must not impair the substantial rights of
the accused or the right of the People to due process of
law.
xxx xxx xxx
The rule therefore in this jurisdiction is that once a
complaint or information is filed in Court any disposition of
the case as its dismissal or the conviction or acquittal of
the accused rests in the sound discretion of the Court.
Although the fiscal retains the direction and control of the
prosecution of criminal cases even while the case is
already in 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 its exclusive jurisdiction and competence. A motion
to dismiss the case filed by the fiscal should be addressed
to the Court who has the option to grant or deny the same.
It does not matter if this is done before or after the
arraignment of the accused or that the motion was filed
after a reinvestigation or upon instructions of the Secretary
of Justice who reviewed the records of the investigation."
5
(Emphasis supplied).

In the case at bar, the Court has taken note that before the case was set for
trial, almost ten (10) years had elapsed from the date of filing of the
information. It was not, therefore, unusual that the complainant-offended
party, in his affidavit of desistance manifested that his material witnesses
could no longer be contacted, but, without their testimony, the guilt of the
accused could not be proved beyond reasonable doubt.
The prosecuting fiscal in his motion for reconsideration of the order
dismissing the case, obviously believed that despite such manifestation of
the complainant, he (fiscal) could prove the prosecution's case.
To avoid similar situations, the Court takes the view that, while
the Crespo doctrine has settled that the trial court is the sole judge on
whether a criminal case should be dismissed (after the complaint or
information has been filed in court), still, any move on the part of the
complainant or offended party to dismiss the criminal case, even if without
objection of the accused, should first be referred to the prosecuting fiscal for
his own view on the matter. He is, after all, in control of the prosecution of
the case and he may have his own reasons why the case should not be
dismissed. It is only after hearing the prosecuting fiscal's view that the Court
should exercise its exclusive authority to continue or dismiss the case.
WHEREFORE, the petition is hereby DISMISSED. Without costs.
SO ORDERED.
Yap, C.J., Melencio-Herrera, Paras and Sarmiento, JJ., concur.