Basco vs. Rapatalo, March 5.

1997
People vs. Ejandra, 429 SCRA 364
Yusop vs. Sandiganbayan, 352 SCRA 587

A.M. No. RTJ-96-1335 March 5, 1997

INOCENCIO BASCO, complainant,

vs.
JUDGE LEO M. RAPATALO, Regional Trial Court, Branch 32, Agoo, La Union, respondent.
SYLLABUS
1. REMEDIAL LAW; CRIMINAL PROCEDURE; BAIL; DEFINED. "Bail" is the security required by the court and given by the accused to
ensure that the accused appears before the proper court at the scheduled time and place to answer the charges brought against him or her.

2. ID.; ID.; ID.; FUNCTION THEREOF. In theory, the only function of bail is to ensure the appearance of the defendant at the time set for
trial. The sole purpose of confining the accused in jail before conviction, it has been observed, is to assure his presence at the trial. In other words,
if the denial of bail is authorized in capital offenses, it is only in theory that the proof being strong, the defendant would flee, if he has the
opportunity, rather than face the verdict of the court. Hence the exception to the fundamental right to be bailed should be applied in direct ratio to
the extent of probability of evasion of the prosecution. In practice, bail has also been used to prevent the release of an accused who might
otherwise be dangerous to society or whom the judges might not want to release." It is in view of the abovementioned practical function of bail
that it is not a matter of right in cases where the person is charged with a capital offense punishable by death, reclusion perpetua or life
imprisonment. Rule 114, Section 7 of the Rules of Court, as amended, states, "No person charged with a capital offense, or an offense punishable
by reclusion perpetua or life imprisonment when the evidence of guilt is strong, shall be admitted to bail regardless of the stage of the criminal
action."cralaw virtua1aw library

3. ID.; ID.; ID.; WHEN THE GRANT IS DISCRETIONARY; REQUIREMENT FOR THE PROPER EXERCISE THEREOF. When the grant
of bail is discretionary, the prosecution has the burden of showing that the evidence of guilt against the accused is strong. However, the
determination of whether or not the evidence of guilt is strong, being a matter of judicial discretion, remains with the judge. "This discretion by
the very nature of things, may rightly be exercised only after the evidence is submitted to the court at the hearing. Since the discretion is directed
to the weight of the evidence and since evidence cannot properly be weighed if not duly exhibited or produced before the court, it is obvious that a
proper exercise of judicial discretion requires that the evidence of guilt be submitted to the court, the petitioner having the right of cross-
examination and to introduce his own evidence in rebuttal." To be sure, the discretion of the trial court, "is not absolute nor beyond control. It
must be sound, and exercised within reasonable bounds. Judicial discretion, by its very nature involves the exercise of the judges individual
opinion and the law has wisely provided that its exercise be guided by well-known rules which, while allowing the judges rational latitude for the
operation of his own individual views, prevent them from getting out of control. An uncontrolled or uncontrollable discretion on the part of a
judge is a misnomer. It is a fallacy. Lord Mansfield, speaking of the discretion to be exercised in granting or denying bail said: "But discretion
when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary,
vague and fanciful; but legal and regular." cralaw virtua1aw library

4. ID.; ID.; ID.; ID.; BEARING REQUIRED; RATIONALE. In the application for bail of a person charged with a capital offense punishable
by death, reclusion perpetua or life imprisonment, a hearing, whether summary or otherwise in the discretion of the court, must actually be
conducted to determine whether or not the evidence of guilt against the accused is strong. Since the determination of whether or not the evidence
of guilt against the accused is strong is a matter of judicial discretion, the judge is mandated to conduct a hearing even in cases where the
prosecution chooses to just file a comment or leave the application for bail to the discretion of the court. Corollarily, another reason why hearing
of a petition for bail is required, as can be gleaned from the abovecited case, is for the court to take into consideration the guidelines set forth in
Section 6, Rule 114 of the Rules of Court in fixing the amount of bail. This Court, in a number of cases held that even if the prosecution fails to
adduce evidence in opposition to an application for bail of an accused, the court may still require that it answer questions in order to ascertain not
only the strength of the states evidence but also the adequacy of the amount of bail. After hearing, the courts order granting or refusing bail must
contain a summary of the evidence for the prosecution. On the basis thereof, the judge should then formulate his own conclusion, as to whether
the evidence so presented is strong enough as to indicate the guilt of the accused. Otherwise, the order granting or denying the application for bail
may be invalidated because the summary of evidence for the prosecution which contains the judges evaluation of the evidence may be considered
as an aspect of procedural due process for both the prosecution and the defense.

5. ID.; ID.; ID.; ID.; ID.; SUMMARY HEARING, CONSTRUED. "A summary hearing means such brief and speedy method of receiving and
considering the evidence of guilt as is practicable and consistent with the purpose of hearing which is merely to determine the weight of evidence
for the purposes of bail. On such hearing, the court does not sit to try the merits or to enter into any nice inquiry as to the weight that ought to be
allowed to the evidence for or against the accused, nor will it speculate on the outcome of the trial or on what further evidence may be therein
offered and admitted. The course of inquiry may be left to the discretion of the court which may confine itself to receiving such evidence as has
reference to substantial matters, avoiding unnecessary thoroughness in the examination and cross-examination." If a party is denied the
opportunity to be heard, there would be a violation of procedural due process.

6. ID.; ID.; ID.; ENUMERATION OF PROCEDURES TO BE FOLLOWED BY THE TRIAL JUDGE IN CASE OF BAIL APPLICATION.
In the light of the applicable rules on bail and the jurisprudential principles just enunciated, this Court reiterates the duties of the trial judge in case
an application for bail is filed: (1) Notify the prosecutor of the hearing of the application for bail or require him to submit his recommendation
(Section 18, Rule 114 of the Rules of Court, as amended); (2) Conduct a hearing of the application for bail regardless of whether or not the
prosecution refuses to present evidence to show that the guilt of the accused is strong for the purpose of enabling the court to exercise its sound
discretion (Sections 7 and 8, supra); (3) Decide whether the evidence of guilt of the accused is strong based on the summary of evidence of the
prosecution (Baylon v. Sison, 243 SCRA 284 [1995]); (4) If the guilt of the accused is not strong, discharge the accused upon the approval of the
bailbond. (Section 19, supra). Otherwise, petition should be denied. The above-enumerated procedure should now leave no room for doubt as to
the duties of the trial judge in cases of bail applications. So basic and fundamental is it to conduct a hearing in connection with the grant of bail in
the proper cases that it would amount to judicial apostasy for any member of the judiciary to disclaim knowledge or awareness thereof.

7. ADMINISTRATIVE LAW; PUBLIC OFFICERS; JUDGES; REQUIRED TO KNOW MORE THAN JUST A CURSORY
ACQUAINTANCE WITH STATUTE AND PROCEDURAL RULES. A judge owes it to the public and the administration of justice to know
the law he is supposed to apply to a given controversy. He is called upon to exhibit more than just a cursory acquaintance with the statutes and
procedural rules. There will be faith in the administration of justice only if there be a belief on the part of litigants that the occupants of the bench
cannot justly be accused of a deficiency in their grasp of legal principles.

RESOLUTION

ROMERO, J.:

In a sworn letter-complaint dated August 14, 1995, complainant Inocencio Basco charged respondent Judge Leo M.
Rapatalo of RTC, Branch 32, Agoo, La Union with gross ignorance or willful disregard of established rule of law for
granting bail to an accused in a murder case (Criminal Case No. 2927) without receiving evidence and conducting a
hearing.

Complainant, who is the father of the victim, alleged that an information for murder was filed against a certain Roger
Morente, one of three accused. The accused Morente filed a petition for bail. The hearing for said petition was set for
May 31, 1995 by petitioner but was not heard since the respondent Judge was then on leave. It was reset to June 8,
1995 but on said date, respondent Judge reset it to June 22, 1995. The hearing for June 22, 1995, however, did not
materialize. Instead, the accused was arraigned and trial was set. Again, the petition for bail was not heard on said date
as the prosecution's witnesses in connection with said petition were not notified. Another attempt was made to reset
the hearing to July 17, 1995.

In the meantime, complainant allegedly saw the accused in Rosario, La Union on July 3, 1995. He later learned that
the accused was out on bail despite the fact that the petition had not been heard at all. Upon investigation, complainant
discovered that bail had been granted and a release order dated June 29, 19951 was issued on the basis of a
marginal note2 dated June 22, 1995, at the bottom of the bail petition by Assistant Prosecutor Manuel Oliva
which stated: "No objection: P80,000.00," signed and approved by the assistant prosecutor and eventually
by respondent Judge. Note that there was already a release order dated June 29, 1995 on the basis of the
marginal note of the Assistant Prosecutor dated June 22, 1995 (when the hearing of the petition for bail
was aborted and instead arraignment took place) when another hearing was scheduled for July 17, 1995.

In his comment dated October 16, 1995, respondent Judge alleged that he granted the petition based on the
prosecutor's option not to oppose the petition as well as the latter's recommendation setting the bailbond in the amount
of P80,000.00. He averred that when the prosecution chose not to oppose the petition for bail, he had the discretion on
whether to approve it or not. He further declared that when he approved the petition, he had a right to presume that the
prosecutor knew what he was doing since he was more familiar with the case, having conducted the preliminary
investigation. Furthermore, the private prosecutor was not around at the time the public prosecutor recommended bail.

Respondent Judge stated that in any case, the bailbond posted by accused was cancelled and a warrant for his arrest
was issued on account of complainant's motion for reconsideration. The Assistant Provincial Prosecutor apparently
conformed to and approved the motion for reconsideration.3 To date, accused is confined at the La Union
Provincial Jail.

A better understanding of bail as an aspect of criminal procedure entails appreciating its nature and purposes. "Bail" is
the security required by the court and given by the accused to ensure that the accused appears before the proper court
at the scheduled time and place to answer the charges brought against him or her. In theory, the only function of bail
is to ensure the appearance of the defendant at the time set for trial. The sole purpose of confining the accused
in jail before conviction, it has been observed, is to assure his presence at the trial. 4 In other words, if the denial of
bail is authorized in capital offenses, it is only in theory that the proof being strong, the defendant would flee,
if he has the opportunity, rather than face the verdict of the court. Hence the exception to the fundamental
right to be bailed should be applied in direct ratio to the extent of probability of evasion of the
prosecution.5 In practice, bail has also been used to prevent the release of an accused who might
otherwise be dangerous to society or whom the judges might not want to release."6

It is in view of the abovementioned practical function of bail that it is not a matter of right in cases where the person is
charged with a capital offense punishable by death, reclusion perpetua or life imprisonment. Article 114, section 7 of
the Rules of Court, as amended, states, "No person" charged with a capital offense, or an offense punishable
by reclusion perpetua or life imprisonment when the evidence of guilt is strong, shall be admitted to bail regardless of
the stage of the criminal action."

When the grant of bail is discretionary, the prosecution has the burden of showing that the evidence of guilt against
the accused is strong. However, the determination of whether or not the evidence of guilt is strong, being a matter of
judicial discretion, remains with the judge. "This discretion by the very nature of things, may rightly be exercised only
after the evidence is submitted to the court at the hearing. Since the discretion is directed to the weight of the evidence
and since evidence cannot properly be weighed if not duly exhibited or produced before the court,7 it is obvious that a
proper exercise of judicial discretion requires that the evidence of guilt be submitted to the court, the petitioner having
the right of cross examination and to introduce his own evidence in rebuttal."8

To be sure, the discretion of the trial court, "is not absolute nor beyond control. It must be sound, and exercised within
reasonable bounds. Judicial discretion, by its very nature involves the exercise of the judge's individual opinion and
the law has wisely provided that its exercise be guided by well-known rules which, while allowing the judge rational
latitude for the operation of his own individual views, prevent them from getting out of control. An uncontrolled or
uncontrollable discretion on the part of a judge is a misnomer. It is a fallacy. Lord Mansfield, speaking of the
discretion to be exercised in granting or denying bail said: "But discretion when applied to a court of justice, means
sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague and
fanciful; but legal and regular."9

Consequently, in the application for bail of a person charged with a capital offense punishable by death, reclusion
perpetua or life imprisonment, a hearing, whether summary or otherwise in the discretion of the court, must actually
be conducted to determine whether or not the evidence of guilt against the accused is strong. "A summary hearing
means such brief and speedy method of receiving and considering the evidence of guilt as is practicable and consistent
with the purpose of hearing which is merely to determine the weight of evidence for the purposes of bail. On such
hearing, the court does not sit to try the merits or to enter into any nice inquiry as to the weight that ought to be
allowed to the evidence for or against the accused, nor will it speculate on the outcome of the trial or on what further
evidence may be therein offered and admitted. The course of inquiry may be left to the discretion of the court which
may confine itself to receiving such evidence as has reference to substantial matters, avoiding unnecessary
thoroughness in the examination and cross examination." 10 If a party is denied the opportunity to be heard, there
would be a violation of procedural due process.

That it is mandatory for the judge to require a hearing in a petition for bail is emphasized in the following cases:
(1) People v. Sola decided in 1981. 11 In this case seven separate informations for murder were filed
against the accused Sola and 18 other persons. After preliminary investigation. the municipal trial
court issued warrants for their arrest. However without giving the prosecution the opportunity to
prove that the evidence of guilt against the accused is strong, the court granted them the right to post
bail for their temporary release. Citing People v San Diego, 12 we held: "We are of the considered
opinion that whether the motion for bail of a defendant who is in custody for a capital offense be
resolved in a summary proceeding or in the course of a regular trial, the prosecution must be given an
opportunity to present, within a reasonable time, all the evidence that it may desire to introduce
before the court should resolve the motion for bail. If, as in the criminal case involved in the instant
special civil action, the prosecution should be denied such an opportunity, there would be a violation
of procedural due process, and the order of the court granting bail should be considered void on that
ground.

(2) People v. Dacudao decided in 1989. 13 In this case, an information was filed against the accused
for murder, a non-bailable offense. The judge, without conducting any hearing, granted bail on the
ground that there was not enough evidence to warrant a case for murder because only affidavits of
the prosecution witnesses who were allegedly not eyewitnesses to the crime were filed. We held:
"Whatever the court possessed at the time it issued the questioned ruling was intended only for prima
facie determining whether or not there is sufficient ground to engender a well founded belief that the
crime was committed and pinpointing the persons who probably committed it. Whether or not the
evidence of guilt is strong for each individual accused still has to established unless the prosecution
submits the issue on whatever it has already presented. To appreciate the strength or weakness of the
evidence of guilt, the prosecution must be consulted or held. It is equally entitled to due process.

(3) People v. Calo decided in 1990. 14 In this case, the prosecution was scheduled to present nine
witnesses at the hearings held to determine whether the evidence against the private respondents was
strong. After hearing the fifth witness, the respondent judge insisted on terminating the proceedings.
We held: "The prosecution in the instant case was not given adequate opportunity to prove that there
is strong evidence of guilt and to present within a reasonable time all the evidence it desired to
present.

(4) Libarios v. Dabalo decided in 1991 15 which involved an administrative complaint against the
respondent judge for ignorance of the law and grave abuse of discretion. In this case, the respondent
judge, without conducting any prior hearing, directed the issuance of a warrant of arrest against the
accused charged with murder, fixing at the same time the bail at P50,000.00 each on the ground that
the evidence against them was merely circumstantial. We held: "Where a person is accused of a
capital offense, the trial court must conduct a hearing in a summary proceeding to allow the
prosecution to present, within a reasonable time, all evidence it may desire to produce to prove that
the evidence of guilt against the accused is strong before resolving the issue of bail for the temporary
release of the accused. Failure to conduct a hearing before fixing bail in the instant case amounted to
a violation of due process." The respondent judge was ordered to pay a fine of P20,000.00 and
warned to exercise more care in the performance of his duties.

(5) People v. Nano decided in 1992. 16 In this case, the judge issued an order admitting the accused
in a kidnapping and murder case to bail without any hearing. We held: "The prosecution must first
be given an opportunity to present evidence because by the very nature of deciding applications for
bail, it is on the basis of such evidence that judicial discretion is weighed against in determining
whether the guilt of the accused is strong."
(6) Pico v. Combong, Jr. decided in 1992. 17 In this administrative case, the respondent judge
granted bail to an accused charged with an offense punishable by reclusion perpetua, without notice
and hearing, and even before the accused had been arrested or detained. We held: "It is well settled
that an application for bail from a person charged with a capital offense (now an offense punishable
by reclusion perpetua) must be set for hearing at which both the defense and the prosecution must be
given reasonable opportunity to prove (in case of the prosecution) that the evidence of guilt of the
applicant is strong, or (in the case of the defense) that such evidence of guilt was not strong." The
respondent judge was ordered to pay a fine of P20,000.00 and warned to exercise greater care and
diligence in the performance of his duties.

(7) De Guia v. Maglalang decided in 1993, 18 the respondent judge issued a warrant of arrest and
also fixed the bail of an accused charged with the non bailable offense of statutory rape, without
allowing the prosecution an opportunity to show that the evidence of guilt against the accused is
strong.Respondent judge alleged that the only evidence on record = the sworn statements of the
complaining witness and her guardian = were not sufficient to justify the denial of bail. We held: "It
is an established principle that in cases where a person is accused of a capital offense, the trial court
must conduct a hearing in a summary proceeding, to allow the prosecution an opportunity to present,
within a reasonable time, all evidence it may desire to produce to prove that the evidence of guilt
against the accused is strong, before resolving the issue of bail for the temporary release of the
accused. Failure to conduct a hearing before fixing bail amounts to a violation of due process." It was
noted that the warrant of arrest was returned unserved and that after the case was re-raffled to the
complainant judge's sala, the warrant was set aside and cancelled. There was no evidence on record
showing whether the approved bail was revoked by the complainant judge, whether the accused was
apprehended or whether the accused filed an application for bail. Hence, the respondent judge was
ordered to pay a fine of P5,000.00 instead of the usual P20,000.00 that the court imposes on judges
who grant the application of bail without notice and hearing.

(8) Borinaga v. Tamin decided in 1993. 19 In this case, a complaint for murder was filed against five
persons. While the preliminary investigation was pending in the Municipal Circuit Trial Court, a
petition for bail was filed by one of the accused before the respondent judge in the Regional Trial
Court. The respondent judge ordered the prosecutor to appear at the hearing to present evidence that
the guilt of the accused is strong. At the scheduled hearing, the public prosecutor failed to appear
prompting the respondent to grant the application for bail. We held: "Whether the motion for bail of
an accused who is in custody for a capital offense be resolved in a summary proceeding or in the
course of a regular trial, the prosecution must be given an opportunity to present within a reasonable
time all evidence it may desire to introduce before the court may resolve the motion for bail." The
respondent judge was fined P20,000.00 and was warned that the commission of a similar offense in
the future will be dealt with more severely.

(9) Aurillo v. Francisco decided in 1994. 20 In this administrative case, the respondent judge issued
two separate warrants of arrest against two persons charged with murder and parricide, but fixed
the amount of bail for each accused without notifying the prosecution of any motion to fix bail nor of
any order granting the same. Citing People v. Dacudao, 21 we held: "A hearing is absolutely
indispensable before a judge can properly determine whether the prosecution's evidence is weak or
strong. Hence, a denial of the prosecution's request to adduce evidence, deprives it of procedural due
process, a right to which it is equally entitled as the defense. A hearing is required to afford the judge
a basis for determining the existence of those factors set forth under Rule 114, Sec 6." The
respondent judge was ordered to pay a fine of P20,000 with a warning that the commission of the
same or similar acts in the future will be dealt with more severely.

(10) Estoya v. Abraham-Singson decided in 1994. 22 In this case, an administrative complaint was
filed against the respondent judge, alleging, among others, that she granted an application for bail
filed by the accused charged with murder. The grant was made over the objection of the prosecution
which insisted that the evidence of guilt was strong and without allowing the prosecution to present
evidence in this regard. We held: "In immediately granting bail and fixing it at only P20,000.00 for
each of the accused without allowing the prosecution to present its evidence, the respondent denied
the prosecution due process. This Court had said so in many cases and had imposed sanctions on
judges who granted applications for bail in capital offenses and in offenses punishable by reclusion
perpetuawithout giving the prosecution the opportunity to prove that the evidence of guilt is strong."
The respondent judge was dismissed from service because the erroneous granting of bail was just one
of the offenses found to have been committed by her in the aforesaid complaint.

(11) Aguirre v. Belmonte decided in 1994. 23 In this administrative case, the respondent judge issued
warrants of arrest and, at the same time and on his own motion, authorized the provisional release
on bail of the accused in two criminal cases for murder. The accused were still at large at the time
the order granting bail was issued. We held: "A hearing is mandatory before bail can be granted to
an accused who is charged with a capital offense." The judge was ordered to pay a fine of P25,000.00
with a warning that a repetition of the same or similar acts in the future will be dealt with more
severely. He was meted a fine in a higher amount than the usual P20,000.00 because it involved two
criminal cases wherein the respondent judge, "was not only the grantor of bail but likewise the
applicant therefor."

(12) Lardizabal v. Reyes decided in 1994. 24 In this administrative case, the respondent judge issued
an order directing the arrest of the accused charged with rape and, motu proprio, fixed the bail of
the accused in the amount of P80,000.00 without any application on the part of the accused to be
admitted to bail. When the accused filed a motion to reduce bailbond, the respondent judge, again,
without any prior notice and hearing, reduced the bail to P40,000.00. We held: "The rule is explicit
that when an accused is charged with a serious offense punishable by reclusion perpetua, such as
rape, bail may be granted only after a motion for that purpose has been filed by the accused and a
hearing thereon conducted by a judge to determine whether or not the prosecution's evidence of guilt
is strong." The respondent judge was ordered to pay a fine of P20,000.00 with a warning that a
repetition of similar or the same offense will be dealt with more severely.

(13) Guillermo v. Reyes decided in 1995 25 involving an administrative complaint against the
respondent judge for granting bail to the two accused charged with serious illegal detention. When
the two accused first filed a joint application for bail, the petition for bail was duly heard and the
evidence offered by the accused and the prosecution in opposition thereto were properly taken into
account.However, the respondent judge denied the application for bail on the around that it was
premature since the accused were not yet in custody of the law. In a subsequent order, the respondent
judge, without conducting any hearing on aforestated application and thereby denying the
prosecution an opportunity to oppose the same, granted said petition upon the voluntary appearance
in court of the two accused. Respondent judge insisted that there was a hearing but the proceeding he
adverted to was that which was conducted when the motion for bail was first considered and then
denied for being premature. We held: "The error of the respondent judge lies in the fact that in his
subsequent consideration of the application for bail, he acted affirmatively thereon without
conducting another hearing and what is worse, his order concededly lacked the requisite summary or
 resume of the evidence presented by the parties and necessary to support the grant of bail." The
respondent judge was reprimanded because despite the irregularity in the procedure adopted in the
proceeding, the prosecution was undeniably afforded the benefit of notice and hearing. No erroneous
appreciation of the evidence was alleged nor did the prosecution indicate its desire to introduce
additional evidence in an appropriate challenge to the aforestated grant of bail by the respondent.

(14) Santos v. Ofilada decided in 1995. 26 In this case, an administrative complaint was filed against
the respondent judge, who, without notice and hearing to the prosecution, granted bail to an accused
charged with murder and illegal possession of firearm. We held: "Where admission to bail is a
matter of discretion, a hearing is mandatory before an accused can be granted bail. At the hearing,
both the prosecution and the defense must be given reasonable opportunity to prove, in case of the
prosecution, that the evidence of guilt of the applicant is strong, and in the case of the defense, that
evidence of such guilt is not strong." The respondent judge was ordered to pay a fine of P20,000.00
with a warning that a repetition of similar acts will warrant a more severe sanction.

(15) Sule v. Biteng decided in 1995. 27 In this administrative case, the respondent judge, without
affording the prosecution the opportunity to be heard, granted with indecent haste the petition for
bail filed by the accused charged with murder because the accused ". . . voluntarily surrendered to
the authorities as soon as he was informed that he was one of the suspect (sic) . . . ." We held: "With
his open admission that he granted bail to the accused without giving the prosecution any opportunity
to be heard, the respondent deliberately disregarded decisions of this court holding that such act
amounts to a denial of due process, and made himself administratively liable for gross ignorance of
the law for which appropriate sanctions may be imposed." The respondent judge was ordered to pay a
fine of P20,000.00 and warned that commission of the same or similar acts in the future will be dealt
with more severely.

(16) Reymualdo Buzon, Jr. v. Judge Tirso Velasco decided in 1996. 28 In this administrative case, the
respondent judge, without hearing nor comment from the prosecution, granted bail to an accused
charged with murder. Notably, no bail was recommended in the warrant of arrest. We held: "When
bail is a matter of discretion, the judge is required to conduct a hearing and to give notice of such
hearing to the fiscal or require him to submit his recommendation. . . . Truly, a judge would not be in
a position to determine whether the prosecution's evidence is weak or strong unless a hearing is first
conducted." A fine of P20,000.00 was imposed on the respondent judge with the stern warning that a
repetition of the same or similar acts in the future will be dealt with more severely.

The aforecited cases are all to the effect that when bail is discretionary, a hearing, whether summary or otherwise in
the discretion of the court, should first be conducted to determine the existence of strong evidence, or lack of it,
against the accused to enable the judge to make an intelligent assessment of the evidence presented by the parties.

Since the determination of whether or not the evidence of guilt against the accused is strong is a matter of judicial
discretion, the judge is mandated to conduct a hearing even in cases where the prosecution chooses to just file a
comment or leave the application for bail to the discretion of the court.

Hence:

(1) In the case of Gimeno v. Arcueno, Sr., 29 an administrative complaint was filed against the respondent judge
for granting bail to one of the accused in a robbery with homicide case without affording the prosecution a
chance to be heard. The respondent judge explained that he issued an order for the motion to fix bail but
the public prosecutor filed a comment instead which respondent judge thought was adequate compliance
with law. Respondent added that the evidence of guilt of the accused, as disclosed by the records, was not
so strong as to deny the application for bail. In fact, the accused who filed for bail, together with three
others, were later dropped by the Office of the Provincial Prosecutor from the information for failure of the
witnesses to positively identify them. We held: "The grant of bail is a matter of right except in cases
involving capital offenses when the matter is left to the sound discretion of the court. That discretion lies,
not in the determination whether or not a hearing should be held but in the appreciation and evaluation of
the prosecution's evidence of guilt against the accused. . . . A hearing is plainly indispensable before a
judge can aptly be said to be in a position to determine whether the evidence for the prosecution is weak or
strong." Although the respondent judge's explanation was not enough to completely exculpate him, the
circumstances, coupled with his sincere belief in the propriety of his order warranted a mitigation of the
usual sanction the court imposes in cases of this nature. The respondent judge was ordered to pay a fine of
P5,000.00 and warned that a repetition of the same or similar act in the future will be dealt with more
severely.

(2) In the case of Concerned Citizens v. Elma, 30 an administrative complaint was filed against the respondent
judge for granting bail to a person charged with illegal recruitment in large scale and estafa in five separate
informations. The accused filed a motion to fix bail and the respondent judge instead of setting the
application for hearing, directed the prosecution to file its comment or opposition. The prosecution
submitted its comment leaving the application for bail to the discretion of the court. The respondent judge,
in granting the bail of the accused rationalized that in ordering the prosecution to comment on the
accused's motion to fix bail, he has substantially complied with the requirement of a formal hearing. He
further claimed that he required the prosecution to adduce evidence but the latter refused and left the
determination of the motion to his discretion. This Court held, "It is true that the weight of the evidence
adduced is addressed to the sound discretion of the court. However, such discretion may only be exercised
after the hearing called to ascertain the degree of guilt of the accused for the purpose of determining
whether or not he should be granted liberty. . . . In the case at bar, however, no formal hearing was
conducted by the respondent judge. He could not have assessed the weight of evidence against the
accused Gatus before granting the latter's application for bail." The respondent judge was dismissed from
service because he was previously fined for a similar offense and was sternly warned that a repetition of
the same or similar offense would be dealt with more severely.

(3) In the case of Baylon v. Sison, 31 an administrative complaint was filed against the respondent judge for
granting bail to several accused in a double murder case. The respondent judge claimed that he granted
the application for bail because the assistant prosecutor who was present at the hearing did not interpose
an objection thereto and that the prosecution never requested that it be allowed to show that the evidence
of guilt is strong but instead, submitted the incident for resolution. The respondent judge further claimed
that the motion for reconsideration of the order granting bail was denied only after due consideration of the
pertinent affidavits. We held: "The discretion of the court, in cases involving capital offenses may be
exercised only after there has been a hearing called to ascertain the weight of the evidence against the
accused. Peremptorily, the discretion lies, not in determining whether or not there will be a hearing, but in
appreciating and evaluating the weight of the evidence of guilt against the accused." The respondent judge
was ordered to pay a fine of P20,000.00 with a stern warning that the commission of the same or similar
offense in the future would be dealt with more severely.

A hearing is likewise required if the prosecution refuses to adduce evidence in opposition to the application to grant
and fix bail. "The importance of a hearing has been emphasized in not a few cases wherein the court ruled that even if
the prosecution refuses to adduce evidence or fails to interpose an objection to the motion for bail, it is
still mandatory for the court to conduct a hearing or ask searching questions from which it may infer the strength of
the evidence of guilt, or the lack of it, against the accused." 32
In the recent case of Tucay v. Domagas, 33 an administrative complaint was filed against the respondent judge
for granting bail to an accused charged with murder. The application for bail contained the annotation "No
objection" of the provincial prosecutor and the respondent judge, without holding a hearing to determine
whether the evidence of the prosecution was strong, granted bail and ordered the release of the accused
from detention with instructions to the bondsman to register the bond with the Register of Deeds within ten
days. It was later found out that the assessed value of the property given was short of the amount fixed for
the release of the accused. We held: "Although the provincial prosecutor had interposed no objection to the
grant of bail to the accused, respondent judge should have nevertheless have set the petition for bail for
hearing and diligently ascertained from the prosecution whether the latter was not really contesting the bail
application . . . . Only after satisfying himself that the prosecution did not wish to oppose the petition for bail
for justifiable cause (e.g., for tactical reasons) and taking into account the factors enumerated in Rule 114,
Sec. 6 for fixing bail should respondent judge have ordered the petition for bail and ordered the release of
the accused." Respondent judge herein was ordered to pay a fine of P20,000.00 and was given a stern
warning that the commission of a similar offense in the future would be dealt with more severely.

Corollarily, another reason why hearing of a petition for bail is required, as can be gleaned from the abovecited case,
is for the court to take into consideration the guidelines set forth in Section 6, Rule 114 of the Rules of Court in fixing
the amount of bail. 34 This Court, in a number of cases 35 held that even if the prosecution fails to adduce
evidence in opposition to an application for bail of an accused, the court may still require that it answer
questions in order to ascertain not only the strength of the state' s evidence but also the adequacy of the
amount of bail.

After hearing, the court's order granting or refusing bail must contain a summary of the evidence for the
prosecution. 36 On the basis thereof, the judge should then formulate his own conclusion as to whether the
evidence so presented is strong enough as to indicate the guilt of the accused. Otherwise, the order
granting or denying the application for bail may be invalidated because the summary of evidence for the
prosecution which contains the judge's evaluation of the evidence may be considered as an aspect of
procedural due process for both the prosecution and the defense.

This court in the case of Carpio v. Maglalang 37 invalidated the order of respondent judge granting bail to the
accused because "Without summarizing the factual basis of its order granting bail, the court merely stated
the number of prosecution witnesses but not their respective testimonies, and concluded that the evidence
presented by the prosecution was not "sufficiently strong" to deny bail to Escano."

With the mounting precedents, this Court sees no reason why it has to repeatedly remind trial court judges to perform
their mandatory duty of conducting the required hearing in bail applications where the accused stands charged with a
capital offense.

An evaluation of the records in the case at bar reveals that respondent Judge granted bail to the accused without first
conducting a hearing to prove that the guilt of the accused is strong despite his knowledge that the offense charged is a
capital offense in disregard of the procedure laid down in Section 8, Rule 114 of the Rules of Court as amended by
Administrative Circular No. 12-94.

Respondent judge admittedly granted the petition for bail based on the prosecution's declaration not to oppose the
petition. Respondent's assertion, however, that he has a right to presume that the prosecutor knows what he is doing
on account of the latter's familiarity with the case due to his having conducted the preliminary investigation is faulty.
Said reasoning is tantamount to ceding to the prosecutor the duty of exercising judicial discretion to determine
whether the guilt of the accused is strong. Judicial discretion is the domain of the judge before whom the petition for
provisional liberty will be decided. The mandated duty to exercise discretion has never been reposed upon the
prosecutor.
In the case of Montalbo v. Santamaria, 38 this Court held that the respondent judge is duty bound to exercise
judicial discretion conferred upon him by law to determine whether in the case at bar, the proof is evident or
the presumption of guilt is strong against the defendant and to grant or deny the petition for provisional
liberty. It also held that a writ of mandamus will lie in order to compel the respondent judge to perform a
duty imposed upon him by law.

The absence of objection from the prosecution is never a basis for granting bail to the accused. It is the court's
determination after a hearing that the guilt of the accused is not strong that forms the basis for granting bail.
Respondent Judge should not have relied solely on the recommendation made by the prosecutor but should have
ascertained personally whether the evidence of guilt is strong. After all, the judge is not bound by the prosecutor's
recommendation. Moreover, there will be a violation of due process if the respondent Judge grants the application for
bail without hearing since Section 8 of Rule 114 provides that whatever evidence presented for or against the
accused's provisional release will be determined at the hearing.

The practice by trial court judges of granting bail to the accused when the prosecutor refuses or fails to present
evidence to prove that the evidence of guilt of the accused is strong can be traced to the case of Herras Teehankee
v. Director of Prisons 39 where this Court gave the following "instructions" to the People's Court, 40 thus:

1) In capital cases like the present when the prosecutor does not oppose the petition for release on
bail, the court should, as a general rule, in the proper exercise of its discretion, grant the release after
the approval of the bail which it should fix for the purpose;

2) But if the court has reasons to believe that the special prosecutor's attitude is not justified, it may
ask him questions to ascertain the strength of the state's evidence or to judge the adequacy of the
amount of bail;

3) When, however, the special prosecutor refuses to answer any particular question on the ground
that the answer may involve a disclosure imperiling the success of the prosecution or jeopardizing the
public interest, the court may not compel him to do so, if and when he exhibits a statement to that
effect of the Solicitor General, who, as head of the Office of Special Prosecutors, is vested with the
direction and control of the prosecution, and may not, even at the trial, be ordered by the court to
present evidence which he does not want to introduce provided, of course, that such refusal shall
not prejudice the rights of the defendant or detainee. 41

The rationale for the first instruction was stated by this Court, as follows:

If, for any reason, any party should abstain from introducing evidence in the case for any definite
purpose, no law nor rule exists by which he may be so compelled and the court before which the case
is pending has to act without that evidence and, in so doing, it clearly would not be failing in its
duties. If the Constitution or the law plots a certain course of action to be taken by the court when
certain evidence is found by it to exist, and the opposite course if that evidence is wanting, and said
evidence is not voluntarily adduced by the proper party, the court's clear duty would be to adopt that
course which has been provided for in case of absence of such evidence. Applying the principle to
the case at bar, it was no more within the power nor discretion of the court to coerce the
prosecution into presenting its evidence than to force the prisoner into adducing hers. And when both
elected not to do so, as they had a perfect right to elect, the only thing remaining for the court to do
was to grant the application for bail.

As for the second instruction, this Court stated that:

 The prosecutor might not oppose the application for bail and might refuse to satisfy his burden of
proof, but where the court has reasons to believe that the prosecutor's attitude is not justified, as when
he is evidently committing a gross error or a dereliction of duty, the court must possess a reasonable
degree of control over him in the paramount interest of justice. Under such circumstance, the court is
authorized by our second instruction to inquire from the prosecutor as to the nature of his evidence to
determine whether or not it is strong, it being possible for the prosecutor to have erred in considering
it weak and, therefore, recommending bail.

As for the third instruction, this Court declared:

It must be observed that the court is made to rely upon the official statement of the Solicitor General
on the question of whether or not the revelation of evidence may endanger the success of the
prosecution and jeopardize the public interest. This is so, for there is no way for the court to
determine that question without having the evidence disclosed in the presence of the applicant,
disclosure which is sought to be avoided to protect the interests of the prosecution before the trial.

It is to be recalled that Herras Teehankee was decided fully half a century ago under a completely different factual
milieu. Haydee Herras Teehankee was indicted under a law dealing with treason cases and collaboration with the
enemy. The said "instructions" given in the said case under the 1940 Rules of Court no longer apply due to the
amendments introduced in the 1985 Rules of Court.

In the 1940 Rules of Court of the Philippines, the applicable provisions on "Bail" provides, as follows:

Sec. 5. Capital offenses defined. A capital offense, as the term is used in this rule, is an offense
which, under the law existing at the time of its commission, and at the time of the application to be
admitted to bail, may be punished by death.

Sec. 6. Capital offenses not bailable. No person in custody for the commission of a capital offense
shall be admitted to bail if the evidence of his guilt is strong.

Sec. 7. Capital offense burden of proof. On the hearing of an application for admission to bail
made by any person who is in custody for the commission of a capital offense, the burden of showing
that the evidence of guilt is strong is on the prosecution.

The above-cited provisions have not been adopted in toto in the 1985 Rules of Court, as amended by Administrative
Circular No. 12-94, since some phrases and lines have been intercalated, as shown by the underscored phrases and
statements below:

Sec. 6. Capital offense, defined. A capital offense, as the term is used in these rules, is an offense
which, under the law existing at the time of its commission and at the time of the application to be
admitted to bail, may be punished with death.

Sec. 7. Capital offense or an offense punishable by reclusion perpetua or life imprisonment, not
bailable. No person charged with a capital offense, of an offense punishable by reclusion
perpetuaor life imprisonment, when evidence of guilt is strong, shall be admitted to bail regardless of
the stage of the criminal prosecution.

Sec. 8. Burden of proof in bail application. At the hearing of an application for admission to bail
filed by any person who is in custody for the commission of an offense punishable by
death, reclusion perpetua or life imprisonment, the prosecution has the burden of showing that
evidence of guilt is strong. The evidence presented during the bail hearings shall be considered
automatically reproduced at the trial, but upon motion of either party, the court may recall any
 witness for additional examination unless the witness is dead, outside of the Philippines or otherwise
unable to testify.

It should be noted that there has been added in Section 8 a crucial sentence not found in the counterpart provision,
Section 7, Rule 110 of the 1940 Rules of Court. The above-underscored sentence in section 8, Rule 114 of the 1985
Rules of Court, as amended, was added to address a situation where in case the prosecution does not choose to present
evidence to oppose the application for bail, the judge may feel duty-bound to grant the bail application. In such a case,
the judge may well lose control of the proceedings. In a sense, this undermines the authority of a judge since all that
the prosecution has to do to "force" the judge to grant the bail application is to refrain from presenting evidence
opposing the same. In effect, this situation makes Sections 6 and 7 of the 1940 Rules of Court on "Bail" meaningless
since whether or not the evidence of guilt of a person charged with a capital offense is strong cannot be determined if
the prosecution chooses not to present evidence or oppose the bail application in a hearing precisely to be conducted
by the trial judge for that purpose, as called for in the two sections. In the event that the prosecution fails or refuses to
adduce evidence in the scheduled hearing, then a hearing as in a regular trial should be scheduled. In this regard, a
hearing in the application for bail necessarily means presentation of evidence, and the filing of a comment or a written
opposition to the bail application by the prosecution will not suffice.

The prosecution under the revised provision is duty bound to present evidence in the bail hearing to prove whether the
evidence of guilt of the accused is strong and not merely to oppose the grant of bail to the accused. "This also prevents
the practice in the past wherein a petition for bail was used as a means to force the prosecution into a premature
revelation of its evidence and, if it refused to do so, the accused would claim the grant of bail on the ground that the
evidence of guilt was not strong." 42

It should be stressed at this point, however, that the nature of the hearing in an application for bail must be equated
with its purpose i.e., to determine the bailability of the accused. If the prosecution were permitted to conduct a hearing
for bail as if it were a full-dress trial on the merits, the purpose of the proceeding, which is to secure the provisional
liberty of the accused to enable him to prepare for his defense, could be defeated. At any rate, in case of a summary
hearing, the prosecution witnesses could always be recalled at the trial on the merits. 43

In the light of the applicable rules on bail and the jurisprudential principles just enunciated, this Court reiterates the
duties of the trial judge in case an application for bail is filed:

(1) Notify the prosecutor of the hearing of the application for bail or require him to submit his
recommendation (Section 18, Rule 114 of the Rules of Court as amended);

(2) Conduct a hearing of the application for bail regardless of whether or not the prosecution refuses
to present evidence to show that the guilt of the accused is strong for the purpose of enabling the
court to exercise its sound discretion (Sections 7 and 8, supra);

(3) Decide whether the evidence of guilt of the accused is strong based on the summary of evidence
of the prosecution (Baylon v. Sison, supra);

(4) If the guilt of the accused is not strong, discharge the accused upon the approval of the bailbond.
(Section 19, supra). Otherwise, petition should be denied.

The above-enumerated procedure should now leave no room for doubt as to the duties of the trial judge in cases of
bail applications. So basic and fundamental is it to conduct a hearing in connection with the grant of bail in the proper
cases that it would amount to judicial apostasy for any member of the judiciary to disclaim knowledge or awareness
thereof. 44 A judge owes it to the public and the administration of justice to know the law he is supposed to
apply to a given controversy. He is called upon to exhibit more than just a cursory acquaintance with the
statutes and procedural rules. There will be faith in the administration of justice only if there be a belief on
the part of litigants that the occupants of the bench cannot justly be accused of a deficiency in their grasp of
legal principles. 45

Respondent judge herein insists that he could exercise his discretion in granting bail to the accused since the Assistant
Prosecutor signified in writing that he had no objection to the grant of bail and recommended, instead, the bailbond in
the sum of P80,000.00. It is to be emphasized that although the court may have the discretion to grant the application
for bail, in cases of capital offenses, the determination as to whether or not the evidence of guilt is strong can only be
reached after due hearing which, in this particular instance has not been substantially complied with by the respondent
Judge.

While it may be true that the respondent judge set the application for bail for hearing three times, thus showing lack of
malice or bad faith in granting bail to the accused, nonetheless, this does not completely exculpate him because the
fact remains that a hearing has not actually been conducted in violation of his duty to determine whether or not the
evidence against the accused is strong for purposes of bail. Normally, the Court imposes a penalty of P20,000.00 fine
in cases where the judge grants the application for bail without notice and hearing. In view however of the
circumstances of this case, a reprimand instead of the P20,000.00 would suffice.

WHEREFORE, in view of the foregoing, respondent Judge Leo M. Rapatalo, RTC, Branch 32, Agoo, La Union, is
hereby REPRIMANDED with the WARNING that a repetition of the same or similar acts in the future will be dealt
with more severely.

SO ORDERED.

G.R. No. 134203 May 27, 2004

PEOPLE OF THE PHILIPPINES, appellee,

vs.
ELVIE EJANDRA @ ELVIES EJANDRA @ BEBOT EJANDRA @ ALEJANDRO EJANDRA @ BEBOT
OCAY SUANGCO, MAGDALENA CALUNOD y MAGANOY @ MAGDALENA SALIOT-SUANGCO,
ANTONIO HUERA y RANDA, ROEL REVILLA CERON, and EDWIN TAMPOS y AMPARO (All detained
at Quezon City Jail, Quezon City), appellants.

Criminal Procedure; The accused waives any irregularities relating to his warrantless arrest if he fails to
file a motion to quash the Information on that ground, or to object to any irregularity in his arrest before
he is arraigned.We agree with the Office of the Solicitor General that the appellants Ejandra and
Calunod waived any irregularities relating to their warrantless arrest when they failed to file a motion
to quash the Information on that ground, or to object to any irregularity in their arrest before they were
arraigned. They are now estopped from questioning the legality of their arrest.

DECISION

PER CURIAM:
This is a review on automatic appeal of the Decision1 of the Quezon City Regional Trial Court, Branch 219,
convicting appellants Elvie Ejandra, Magdalena Calunod, Edwin Tampos and Roel Revilla of kidnapping for ransom,
and sentencing them to suffer the death penalty.

The Indictment

The accused were charged of kidnapping for ransom in an Information filed in the Regional Trial Court which reads:
 That on or about July 2, 1997, in Quezon City, and within the jurisdiction of this Honorable Court, above-
named accused, while confederating, conniving, conspiring, and helping each and one another, did then and
there with the use of force, threat and intimidation, take and carry away, a nine-year-old minor child, Ed
Henderson Tan, against the will and consent of the latter nor any of his natural and legal parents or guardian,
to an unknown destination, detain, hold and control Ed Henderson Tan depriving him of his liberty, and
during their control and custody of Ed Henderson Tan, call, demand and negotiate the payment of ransom
money from Eddie Tan, the father of Ed Henderson Tan, for the safe release and return of the victim Ed
Henderson, otherwise, the victim would be harmed or killed, the victims father Eddie Tan actually paid the
accused the amount of 548,000.00 as ransom money, for the safe release of the victim to the damage and
prejudice of the victim Ed Henderson Tan and his father Eddie Tan.

CONTRARY TO LAW.2

The accused, assisted by counsel, were arraigned for the crime charged on November 11, 1997, and entered their
respective pleas of not guilty.

The Evidence for the Prosecution

Ed Henderson Tan, the nine-year old son of the spouses Eddie and Marileen Tan, was a Grade III student at the
Philippine Institute of Quezon City, located at Kitanlad, Quezon City.3 At about 4:00 p.m. on July 2, 1997, Ed
Henderson was dismissed from his classes and proceeded to the nearby house of his tutor in Chinese language, Huang
Lao Shih.4 Ed Henderson and his father, Eddie Tan, had earlier agreed that after the tutorial classes ended at 7:00 p.m.,
Ed Henderson would phone his father, who would then fetch him from his mentors house.5 The tutorial classes ended
at 7:00 p.m., as scheduled, and Ed Henderson then proceeded to the store near the gate of the school to have his
periodic test papers photocopied.6 He left the store and was on his way back to the house of his tutor to wait for his
father.

Suddenly, Ed Tampos, armed with a revolver (de bola),7 chased and overtook Ed Henderson at the Royalty canteen
near the school.8 Tampos ordered the boy to proceed to a motorcyle parked nearby and warned the latter that if he
refused, he would be shot. Petrified, Ed Henderson approached the motorcycle where appellants Elvie Ejandra and
Roel Revilla were waiting. Ejandra had no legs (pilay), while Revilla had curly hair. There was no lamp post outside
the school premises but the lights inside the school were still on.9 Ejandra covered Ed Hendersons mouth with his
hand, pointed his gun at the boy10 and warned the latter not to shout.11 Revilla boarded the motorcycle and took the
drivers seat. Ejandra sat behind him, and Tampos sat behind Ejandra. Tampos ordered Ed Henderson to board the
motorcyle, or else, he would be shot.12 The boy was then ordered to sit behind Tampos.13

Ed was brought to a one-storey house with cemented flooring and white-colored walls.14 Once inside, he saw a man
who was drinking, who turned out to be Antonio Huera, and a female, who turned out to be Magdalena Calunod.15Ed
Henderson also saw a cell phone.16 The was ordered to write down his fathers telephone number, as well as that of
their house and their store.17 Ed Henderson did as he was told, and wrote down the number 737-61-77 the telephone
number of his father, Eddie Tan. It appeared to the boy that Ejandra was the leader of his abductors because it was he
who gave orders to the others.

In the meantime, Eddie went to fetch his son at 7:00 p.m. at his tutors house, but the boy was nowhere to be
found.18 Frantic, Eddie contacted his friends and relatives and asked if they knew where his son was, to no avail. He
even called up hospitals, inquiring if a boy named Ed Henderson had been admitted as a patient.19 Shortly after
midnight, Eddie received a call from his house that someone had called earlier up his mother, Benita Tan, with the
information that his son had been kidnapped20 and that the kidnappers wanted to talk to the parents.21 Eddie rushed
back home.
At 12:30 a.m., Eddie received a call through his home phone, informing him that his son had been kidnapped. The
caller demanded 10,000,000 for the safe release of his son.22 When Eddie informed the caller that he did not have
10,000,000, the latter hung up the phone.23

In the meantime, as ordered by Ejandra, Ed Henderson called up his father, through the kidnappers cell phone, to
urge his father to pay the ransom money.24

Thereafter, Eddie received several calls threatening him that if he refused to pay the ransom they demanded, the
kidnappers would cut Ed Hendersons ear and finger, and thereafter kill the boy and dump his body in an isolated
place. Eddie pleaded for mercy but the caller would simply hang up the telephone.25

Eddie and his family were terrified of the callers threats that they could hardly sleep. They lost their appetite just
thinking of what Ed Henderson would suffer in the hands of his kidnappers.26 At 6:00 p.m. on July 3, 1997, a Sunday,
Eddie received another call informing him that the kidnappers had agreed to reduce the ransom to
5,000,000.27 Eddie told the caller that he did not have 5,000,000 and pleaded that the ransom be reduced. However,
the caller merely repeated his threat that the kidnappers would cut Ed Hendersons fingers and ears, and dump the boy
in an isolated place.28

Meanwhile, Eddie began borrowing money from his relatives and friends. He received another call reiterating the
demand for ransom. He told the caller that he would try to raise 585,000 but the caller told Eddie to raise 600,000.
Eddie was finally able to borrow 548,000 from his relatives and friends. When the caller called anew, Eddie revealed
that he was able to raise only 548,000 and reiterated that he could no longer borrow any additional amount.29

At 10:00 a.m. the next day, July 4, 1997, another call from the kidnappers came through, and Eddie reiterated that he
could no longer raise any additional amount. The caller hung up, but called again and informed Eddie that the
kidnappers had agreed to accept a ransom of 548,000.00.30 At about noon, the caller contacted Eddie and instructed
him to place the money in a newspaper and to bring the money to the parking lot in front of the Sto. Domingo Church
in Quezon City within ten minutes. The caller further instructed Eddie to open the doors and windows of his car upon
arriving at the designated spot. Eddie was also told that a man would approach him and call him "Eddie."

Eddie did as he was told.31 He placed the money in a newspaper and placed it in a Shoe Mart (SM) plastic bag.32He
then proceeded to the designated place on board his Besta van. He parked the van in the parking lot in front of the
convent adjacent to the Sto. Domingo Church.33 He opened the doors and windows, then alighted from the car.
Momentarily, appellant Calunod approached Eddie and called out, "EddieaEddie." Eddie noted that Calunod had
a scar on her right temple. Eddie was taken aback because he was expecting a man to approach him. Nevertheless,
when he heard Calunod say "Eddie," he handed over the plastic bag which contained the money.34He asked her how
his son was,35 she told him not to worry because she would bring the boy home. Calunod then walked to the gate of
the Santo Domingo Church.36 Eddie went home to wait for his sons return. Shortly after his arrival at their house,
Eddie received two telephone calls from a male and a female, respectively, who informed him of his sons impending
release.

Between 3:20 to 3:30 p.m. of July 4, 1997, Ed Henderson was told that he would be brought back home.37 The boy
then called up his mother and told her that he would be back soon. Tampos and Calunod boarded Ed Henderson in a
taxi. Calunod ordered the boy to pretend that she was his aunt.38 Ed recalled that it was also Calunod who took care
of him and gave him food in the house where he was detained.39 The taxi stopped near the Imperial Drugstore at E.
Rodriguez Avenue, where Calunod instructed Ed Henderson to get down. She gave the boy 50.00 for his fare back
home. The boy took a taxi and was soon reunited with his waiting family.

On July 7, 1997, Ed Henderson gave a sworn statement to PO3 Terencio Claudio of the Criminal Investigation
Division in Camp Crame, Quezon City.40 He was shown photographs of suspects of kidnappings and he identified,
from the pictures shown to him, Elvie Ejandra alias Alejandro Ejandra and Magdalena Calunod41 as two of his
kidnappers.

The Case for the Accused

Edwin Tampos denied any involvement in the kidnapping of Ed Henderson, and invoked alibi as an additional
defense. He claimed that the first time he met Elvie Ejandra and Magdalena Calunod was in Camp Crame, Quezon
City, after he was arrested, with Roel Revilla, on board the latters tricycle at 10:00 p.m. on August 13, 1997. He
knew Antonio Huera, who lived in the same place and solicited bets for "ending." He also knew Roel Revilla, who
was a tricycle driver. Tampos claimed that he was arrested without any warrant therefor, and that he was handcuffed,
mauled and blindfolded. He was asked if he was a kidnapper, denied that he was one and was forced to sign a piece of
paper. He testified that he eked out a living as a butcher of pigs at Villa Beatriz, Old Balara, Quezon City. He sold the
butchered pigs three times a week within the neighborhood. His aunt, Biba Oray, financed his business.42 Tampos
also averred that he owned three fighting cocks.43

Tampos claimed that on July 2, 1997, he was so tired of butchering pigs and opted to stay home the whole day and
night. At 10:00 p.m., he went out of his house and bought cigarettes.44 He returned home immediately thereafter and
slept.45 He and his aunt made plans to buy pigs to be butchered. He was also at home the following day, July 4, 1997,
tending to his three fighting cocks.46

Roel Revilla, likewise, denied any involvement in the kidnapping of Ed Henderson and also interposed an alibi. He
testified that he arrived from Sogus, Southern Leyte on August 5, 1997 and stayed in the house of Antonio Huera, his
brothers friend at Villa Beatriz, Old Balara, Quezon City. Huera worked at the Tarpark and promised that he would
help Revilla get a job there.47 He was arrested on August 13, 1998 by the Presidential Anti-Crime Commission
(PACC) agents, along with Huera and Tampos. They were brought to Camp Crame, Quezon City, where they were
blindfolded, mauled and tortured. He was asked if he was a kidnapper, but he denied any involvement in the incident.
He averred that he did not know of any reason why Ed Henderson would implicate him in the kidnapping.

Magdalena Calunod denied any involvement in the crime charged. She testified that she was thirty-five-year-old
businesswoman from Iligan City. She had a stall in Manggahan in 1994, but the same was demolished in 1995. She
returned to Iligan City and tended fighting cocks from 1995 to 1997.48 In August 1997, she was residing in a rented
house at Bidasari, Lagro Subdivision, Quezon City. Sometime on August 14, 1998, she and Ejandra were on their way
to Nueva Ecija when policemen blocked their vehicle. She, at first, thought that the men were hold-uppers because
they were divested of their money, pieces of jewelry and clothes. The policemen were not armed with any warrant of
arrest. She admitted that she had been charged of kidnapping in another case in the Regional Trial Court of Quezon
City on August 10, 1997.

Elvie Ejandra also denied any involvement in the kidnapping of Henderson. Like the other accused, he interposed the
defense of alibi. He testified that he and Magdalena Calunod were married.49 Since 1994, he had been engaged in the
business of onions and ready-to-wear clothes which they sold in Baclaran and Divisoria. They also had a stall in
Manggahan where they sold onions.50 When their stall was demolished in 1994, they went back to Iligan City.51On
July 2, 1993, he and Calunod were in Iligan City tending fighting cocks. They returned to Quezon City from Iligan
City only on July 9 or July 10, 1997.52 They were arrested on August 14, 1997 by policemen while they were on their
way to Sicsican, Nueva Ecija. When he was arrested, he had a drivers license in the name of Bebot Suangco.53 He
averred that he did not have any cell phone, but had a car with plate no. 413.54

Antonio Huera also denied the charge and interposed the defense of alibi. He testified that he was employed by the
Car Parts Manufacturing as a power press operator.55 However, when his employment was terminated on June 25,
1997, he became a collector of bets for "ending."56 On July 27, 1997, he was in the house of his uncle, which was a
stones throw away from his own house at No. 7, Don Fabian Street, Villa Beatriz Subdivision, Old Balara, Quezon
City.57 His grandfather died that day in Southern Leyte58 and was later buried on July 3, 1997.59 Roel Revilla spent
the night in his house when he arrived from Southern Leyte.60 Huera also admitted that Elvie Ejandra was his
classmate in high school, who visited him on August 5, 1997.61 He was arrested at 5:30 a.m. of August 14, 1997 at
his house, on the mere suspicion that he was a kidnapper. He and two others were brought to Camp Crame, Quezon
City, where he was beaten and maltreated.

On June 4, 1998, the trial court rendered judgment convicting the accused of kidnapping for ransom defined and
penalized in Article 268 of the Revised Penal Code, and sentenced each of them to suffer the death penalty. Antonio
Huera, was acquitted for insufficiency of evidence, The decretal portion of the decision reads:

WHEREFORE, finding accused Edwin Tampos, Elvie Ejandra, Magdalena Calunod, and Roel Revilla
GUILTY beyond reasonable doubt of the crime of Kidnapping for ransom, the court hereby sentences each of
them to suffer the penalty of DEATH; to pay the victim, Ed Henderson Tan and his family, the amount of
548,000.00 as actual damages with legal interest until fully paid, and 1,000,000.00 as moral damages; and
to pay the costs.

Accused Antonio Huera is hereby ACQUITTED for insufficiency of evidence. The Warden of Quezon City
Jail is hereby ordered to release him from custody unless he is being detained for another charge or unlawful
case.

SO ORDERED.62

The Present Appeal

Appellants Ejandra and Calunod do not dispute that they kidnapped Ed Henderson. They merely assert that the
prosecution failed to prove that they had a cellular phone, implying that they could not have used it to demand ransom
for the victims release. It was their daughter, Sherry Mae Saliot who was the subscriber to telephone number 490-55-
95. They also assert that they were arrested without any warrant therefor.63

For their part, appellants Tampos and Revilla contend that the trial court erred in not acquitting them of the crime
charged on reasonable doubt.64 They aver that Ed Henderson could not have recognized them as two of those who
kidnapped him at 7:00 p.m. on July 2, 1997 in the vicinity of the Philippine Institute of Quezon City, because the
place was dark. They assert that it was physically impossible for four people to ride on a motorcycle. The appellants
aver that Ed Hendersons testimony is unreliable, as police officers coached him and taught him what to say during a
confrontation between him and the suspects in Camp Crame, Quezon City.

Appellant Revilla posits that the boy could have mistaken him for Tito Lozada with whom the appellants were when
they were arrested. He argues that he merely stayed in the house of Huera and since the latter was acquitted, he should
also be acquitted. Appellant Revilla insists that his extrajudicial confession is not admissible in evidence against him
because he was forced by policemen into signing the same. He argues that the trial court erred in not considering his
alibi, that on July 7, 1997 he was in Sogus, Southern Leyte. Appellant Tampos further alleges that it was unlikely that
he would be involved in the kidnapping because he was engaged in the lucrative business of being a butcher and meat
vendor. He asserted that he was forced into signing a piece of paper in Camp Crame; hence, the said paper is
inadmissible in evidence against him.

For its part, the Office of the Solicitor General submits that in failing to assail any irregularity in their arrest before
they were arraigned for the crime charged on November 11, 1993, the appellants thereby waived their right to do so.
The appellants even failed to file their respective counter-affidavits during the preliminary investigation of the charge
against them at the Department of Justice. Moreover, the prosecution adduced overwhelming evidence to prove the
crime charged that the appellants were the perpetrators of the said crime.
The contentions of the appellants do not persuade. Ed Henderson positively and in a straightforward manner testified
that appellant Tampos was the one who chased and grabbed him near his school, and that it was appellant Revilla who
drove the motorcycle from the school to the house where he was detained. Ed Henderson was able to recognize the
two appellants because the lights inside the Philippine Institute illuminated the place where he was chased and
grabbed by appellant Tampos. The victim even noticed that appellant Revilla, who drove the motorcycle, had curly
hair. Appellant Tampos was so close to Ed Henderson, as it was he who poked the gun at the boy, and even warned
the latter that he would be shot if he refused to board the motorcycle. The testimony of Ed Henderson pointing to
appellants Tampos and Revilla as two of his kidnappers near the Philippine Institute of Quezon City, reads:

ATTY. CHUA:

Q What were you doing when you were kidnapped?

A I have something xeroxed, sir.

Q Can you tell this court how you were "nahuli"?

A When I finished xeroxing something, I was running and then

somebody chased me, sir.

Q Who was the one chasing you?

A "Yung humuli sa akin."

Q If he is in court, will you please step down from the witness stand and point him to us?

A Yes, sir.

INTERPRETER:

Witness stepping down from the witness stand and proceed to a man wearing yellow T-shirt who when asked
to identify himself he gave his name as Edwin Tampos.

ATTY. CHUA:

Q After this man whom you pointed to, caught you, what did you do?

A He showed me a gun, sir.

Q After he showed you a gun, what did you do?

A He told me "sakay."

Q Where?

A In a motorcycle, sir.65

ATTY. ROUS:

Q Mr. Witness, who was the one driving the motorcycle?

A The person with curly hair, sir.

Q Where were you seated when you were boarded

ATTY. CHUA:
 At what point in time because he rode the motorcycle twice, Your Honor.

ATTY. ROUS:

Q When you were taken from your school, who was the person driving?

A The person with curly hair, sir.

Q When you were taken from your school, where were you seated in the motorcycle?

A I was positioned "sa pangatlo" sir.

Q What do you mean by "pangatlo"?

A The first one in the motorcycle was the driver, the curly hair, the second one is Edwin Tampos and I was on
the third part.

Q What was the color of this motorcycle?

A Red, sir.66

Moreover, Ed Henderson was with appellants Revilla and Tampos when they reached the house where the boy was
detained. The lights inside the house were on and Ed Henderson, saw the appellants Revilla and Tampos at close
range. The victim, likewise, identified appellant Tampos when the latter and Calunod boarded him in a motorcycle in
broad daylight in the afternoon of July 4, 1997. Tampos and Calunod brought the boy to the Imperial Drugstore at E.
Rodriguez Avenue where he boarded a taxicab that brought him home. Ed Hendersons testimony on this matter is
quoted, viz:

Q You said you were able to go home. Do you recall what date they released you?

A Yes, sir.

Q What date was that?

A July 4, 1997, sir.

Q Around what time were you released?

A In the afternoon, sir.

Q How were you able to go home?

A At first they load me in a motorcycle and they hailed me a taxicab, sir.

Q Who were with you in the motorcycle?

A Edwin Tampos and the female, sir.

Q What happened after the female called the taxicab?

A She told me to pretend that she is my aunt and afterwards, she gave me 50.00.67

Finally, appellants Revilla and Tampos were identified by Ed Henderson in open court, pointing to both of them as
two of his kidnappers.

It bears stressing that Ed Henderson was only nine years old and in Grade III when he was kidnapped. In People vs.
Bisda, et al.,68 the kidnap victim Angela was barely six years old when she testified. We held that, considering her
tender years, innocent and guileless, it is incredible that she would testify falsely that the appellants took her from the
school through threats and detained her in the "dirty house" for five days. Thus, testimonies of child victims are given
full weight and credit.

The testimony of children of sound mind is likewise to be more correct and truthful than that of older
persons.69 In People vs. Alba,70 this Court ruled that children of sound mind are likely to be more observant of
incidents which take place within their view than older persons, and their testimonies are likely more correct in detail
than that of older persons.

In the case at bar, the trial court found the testimony of Ed Henderson credible and entitled to full probative weight.
Well settled is the rule that the findings of facts of the trial court, its calibration of the testimonies of witnesses, its
assessment of the credibility of the said witnesses and its evidence based on the said findings are given high respect if
not conclusive effect by the appellate court, unless the trial court overlooked, misconstrued or misinterpreted facts and
circumstances of substance which, if considered, will alter the outcome of the case.71 We have meticulously reviewed
the records and find no justification to deviate from the findings of facts of the trial court, its assessment of the
credibility of Ed Henderson and the veracity and probative weight of his testimony.

The appellants denials and alibi, which are merely self-serving evidence cannot prevail over the positive, consistent
and straightforward testimony of Ed Henderson.72 Alibi is an inherently weak defense because it is easy to fabricate
and highly unreliable.73 To merit approbation, the accused must adduce clear and convincing evidence that he was in
a place other than the situs criminis at the time the crime was committed, such that it was physically impossible for
him to have been at the scene of the crime when it was committed.74 Appellants Revilla and Tampos failed to prove
their alibi. They relied merely and solely on their bare and dubious testimonies to prove their defense. Appellant
Revilla, likewise, failed to adduce any documentary evidence to prove exactly when he left Sogus, Southern
Leyte, via a domestic vessel and the time and date of his arrival in Manila.

The acquittal of Huera on reasonable doubt is not a ground for the acquittal of appellant Revilla. As gleaned from the
trial courts decision, Huera was acquitted on reasonable doubt because the only evidence against him was the
testimony of Ed Henderson, that when he and his kidnappers arrived in the house where the latter was thereafter
detained, he saw Huera drinking. There is no evidence against Huera relating to the boys detention and his release on
July 4, 1997. There is even no evidence that Huera was in the house when Ed Henderson was detained on July 3 and 4,
1997.

Contrary to the assertion of the appellants, it is not physically impossible for four people to ride on a motorcycle,
taking into account the sizes and weights of the riders. Ed Henderson was, after all, only nine years old at that time.

The Court also rejects appellant Tampos plea that the Court take discretionary judicial notice that the business of
butchering pigs and selling their meat is, by nature, a lucrative business. The appellant was burdened to prove his
claim that he was so affluent that it was incredible for him to indulge in kidnapping for ransom. The appellant failed
to do so, and merely relied on his bare testimony. There is no evidence how much the appellant earned from the
business he was allegedly engaged in. In contrast, the appellants collected 548,000.00 by way of ransom from Eddie
Tan for the kidnapping of his son.

The fact that the cell phone used by the kidnappers to demand ransom was owned by Sherry Mae Saliot, the daughter
of appellants Ejandra and Calunod, does not constitute evidence that the said appellants could not have used the said
cell phone to demand ransom from Eddie Tan. Sherry Mae Saliot could have just given the cell phone to her parents
for their use, while she paid for the charges thereon.

We agree with the Office of the Solicitor General that the appellants Ejandra and Calunod waived any irregularities
relating to their warrantless arrest when they failed to file a motion to quash the Information on that ground, or to
object to any irregularity in their arrest before they were arraigned. They are now estopped from questioning the
legality of their arrest.75
In People vs. Bisda,76 we had the occasion to state:

In People v. Pagalasan, this Court held that conspiracy need not be proven by direct evidence. It may be
inferred from the conduct of the accused before, during and after the commission of the crime, showing that
they had acted with a common purpose and design. Conspiracy may be implied if it is proved that two or
more persons aimed by their acts towards the accomplishment of the same unlawful object, each doing a part
so that their combined acts, though apparently independent of each other were, in fact, connected and
cooperative, indicating a closeness of personal association and a concurrence of sentiment. Conspiracy once
found, continues until the object of it has been accomplished unless abandoned or broken up. To hold accused
guilty as a co-principal by reason of conspiracy, he must be shown to have performed an overt act in
pursuance or furtherance of the complicity. There must be intentional participation in the transaction with a
view to the furtherance of the common design and purpose.

Conspirators are held to have intended the consequences of their acts and by purposely engaging in conspiracy which
necessarily and directly produces a prohibited result, they are, in contemplation of law, chargeable with intending that
result. Conspirators are necessarily liable for the acts of another conspirator unless such act differs radically and
substantively from that which they intended to commit. As Judge Learned Hand put it in United States v. Andolscheck,
"when a conspirator embarks upon a criminal venture of indefinite outline, he takes his chances as to its content and
membership, so be it that they fall within the common purposes as he understands them.

In the case at bar, the overt acts of the appellants were so coordinated to attain a common purpose: that of kidnapping
and detaining Ed Henderson for ransom. Appellants Ejandra, Tampos and Revilla abducted the victim. Appellant
Revilla drove the motorcycle from the place of abduction to the house where the victim was detained. Appellant
Calunod guarded the victim during the latters detention, and later brought the victim to E. Rodriguez Avenue in
Quezon City prior to his release, along with appellant Tampos. Appellant Calunod also collected the ransom from the
victims father. All the foregoing facts indubitably show that the appellants conspired to kidnap the victim for ransom.

Article 267 of the Revised Penal Code as amended by Republic Act No. 7659 reads:

ART. 267. Kidnapping and serious illegal detention.Any private individual who shall kidnap or detain
another, or in any other manner deprive him of his liberty, shall suffer the penalty of reclusion perpetua to
death.

1. If the kidnapping or detention shall have lasted more than three days.

2. If it shall have committed simulating public authority.

3. If any serious physical injuries shall have been inflicted upon the person kidnapped or detained, or
if threats to kill him shall have been made.

4. If the person kidnapped or detained shall be a minor, except when the accused is any of the parents,
female or a public officer.

The penalty shall be death where the kidnapping or detention was committed for the purpose of extorting
ransom from the victim or any other person, even if none of the circumstances above-mentioned were present
in the commission of the offense.

When the victim is killed or dies as a consequence of the detention or is raped, or is subjected to torture
dehumanizing acts, the maximum penalty shall be imposed.77

For the accused to be convicted of kidnapping or serious illegal detention, the prosecution is burdened to prove
beyond reasonable doubt all the elements of the crime, namely, (1) the offender is a private individual; (2) he kidnaps
or detains another, or in any manner deprives the latter of h is liberty; (3) the act of detention or kidnapping must be
illegal; and (4) in the commission of the offense any of the following circumstances is present: (a) the kidnapping or
detention lasts for more than three days; (b) it is committed by simulating public authority; (c) any serious physical
injuries are inflicted upon the person kidnapped or detained or threats to kill him are made; or (d) the person
kidnapped and serious illegal detention is a minor, the duration of his detention is immaterial. Likewise, if the victim
is kidnapped and illegally detained for the purpose of extorting ransom, the duration of his detention is immaterial.78

To warrant an imposition of the death penalty for the crime of kidnapping and serious illegal detention for ransom, the
prosecution must prove the following beyond reasonable doubt: (a) intent on the part of the accused to deprive the
victim of his liberty; (b) actual deprivation of the victim of his liberty; and, (c) motive of the accused, which is ransom
for the victim or other person for the release of the victim. The purpose of the offender in extorting ransom is a
qualifying circumstance which may be proven by his words and overt acts before, during and after the kidnapping and
detention of the victim.79 Neither actual demand for nor actual payment of ransom is necessary for the crime to be
committed.80 Ransom as employed in the law is so used in its common or ordinary sense; meaning, a sum of money
or other thing of value, price, or consideration paid or demanded for redemption of a kidnapped or detained person, a
payment that releases from captivity.81 It may include benefits not necessarily pecuniary which may accrue to the
kidnapper as a condition for the victims release.82

In this case, the appellants not only demanded but also received ransom for the release of the victim. The trial court
correctly sentenced the appellants to death. However, the trial court erred in failing to order the appellants to pay,
jointly and severally, to Ed Henderson, his parents Eddie and Marileen Tan the amount of 485,000.00 as actual
damages and the amount of 1,000,000.00 as moral damages. Under Article 110 of the Revised Penal Code, the
principals are jointly and severally liable for the civil liabilities arising from the delict.

Three Justices of the Court maintain their position that Rep. Act No. 7659 is unconstitutional insofar as it prescribes
the death penalty; nevertheless, they submit to the ruling of the majority that the law is constitutional, and that the
death penalty can be lawfully imposed in the case at bar.

IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial Court of Quezon City, Branch 219,
convicting appellants Elvie Ejandra alias Elvies Ejandra alias Bebot Ejandra alias Bebot Ocay Suangco, Magdalena
Calunod y Maganoy alias Magdalena Saliot-Suangco, Roel Ceron Revilla and Edwin Tampos y Amparo of
kidnapping for ransom under Article 267 of the Revised Penal Code, as amended, sentencing each of them to suffer
the death penalty is AFFIRMED with MODIFICATION. The aforementioned appellants are ORDERED to pay,
jointly and severally, to the victim Ed Henderson Tan and his parents 350,000 as moral damages, and to pay, jointly
and severally, to the Spouses Eddie and Marileen Tan, the amount of 485,000 as actual damages.

In accordance with Section 25 of Rep. Act No. 7659 amending Section 83 of the Revised Penal Code, let the records
of this case be forthwith forwarded, upon finality of this Decision, to the Office of the President for possible exercise
of the pardoning power.

SO ORDERED.

G.R. No. 138859-60 February 22, 2001

ALVAREZ ARO YUSOP, petitioner,

vs.
THE HONORABLE SANDIGANBAYAN (First Division), respondent.

PANGANIBAN, J.:
The right of a person to preliminary investigation is recognized by the law and is governed by the Rules of Court.
However, the failure to accord this right does not ipso facto result in the dismissal of the information; the case is
merely suspended, and the prosecutor directed to conduct the proper investigation.

The Case

Before us is a Petition for Certiorari under Rule 65 of the Rules of Court, assailing two Orders1 of the
Sandiganbayan,2 both dated February 15, 1999. The first Order rejected the attempt of petitioner to stop his
arraignment in Criminal Case Nos. 24524-25, on the ground that he had been denied the right to a preliminary
investigation. In the assailed second Order, the Sandiganbayan directed that a plea of not guilty be entered for all the
accused, including herein petitioner.

The Facts

Acting on an Affidavit-Complaint3 filed by a certain Erlinda Fadri, the Office of the Ombudsman-Mindanao issued an
Order4 dated September 19, 1995, naming the following as respondents: benjamin Arao, Fredireck Winters, Pelaez
Pantaran, Eduardo Dablo, Efren Sissay and the city jail warden of Pagadian City. The Order also reqquired
respondents, within ten days from receipt thereof, to submit their counter-affidavits and other pieces of controverting
evidence.

The Office of the Ombudsman for Mindanao issued a Resolution dated January 15, 1998,5 recommending the
prosecution of "the aforenamed respondents" for violation of Article 269 of the Revised Penal Code and Section 3-a in
relation to Section 3-e of Republic Act No. 3019 as amended. Significantly, the name of Petitioner Alvarez A. Yusop
was included as one of the persons to be prosecuted, although he was not one of the original respondents mentioned in
the Order of September 19, 1995. Ombudsman Aniano A. Desierto approved the recommendation. 1wphi1.nt

Accordingly, two Informations were filed with the Sandiganbayan. They were docketed as Criminal Case Nos. 24524
(violation of Section 3-a of RA 3019) and 24525 (unlawful arrect under Article 269 of the Revised Penal Code).

On April 16, 1998, an Order of Arrest was issued by the Sandiganbayan in Criminal Case No. 24524. Petitioner,
however, posted a bail bond before the Regional Trial Court of Dipolos City on May 20 of the same year. On the
same day, he filed a "Motion To Remand Case To The Ombudsman - Mindanao For Preliminary Investigation."

In Resolution dated June 8, 1998, the Sandiganbayan denied the Motion of petitioner for his alleged failure to submit
himself to the jurisdiction of the anti-graft court.

On August 8, 1998, petitioner filed a Motion to Dismiss, grounded again on the lack of preliminary investigation. In
an Order dated September 22, 1998, the Sandiganbayan resolved not to take action on the Motion, because petitioner
had not yet submitted himself to its jurisdiction insofar as Criminal Case No. 24525 was concerned.

On the scheduled arraignment on February 15, 1999, petitioner reiterated his claim that he had not been accorded
preliminary investigation. In its two assailed Orders, the Sandigabayan rejected his claim and proceeded with the
arraignment.

Hence, this recourse.6

Ruling of the Sandiganbayan

The Sandibayan rejected petitioner's plea for preliminary investigation in this wise:

"This morning, the accused herein appeared for arraignment duly represented by their counsel. Before
proceeding, Atty. Omar A. Rivera appearing in behalf of accused Yusop informed this court of his
reservations about proceeding with the arraignment this morning, primarily on the ground that accused Yusop
did not undergo preliminary furnished any notice nor was he informed of the proceedings before the
 Ombudsman with respect to these cases. It would appear that one of the reasons [therefor] is that the accused
despite notice of the existence of the accusation against him in Criminal Case No. 24525, had not given any
timely notice nor any statement of any alleged inadequacy of the proceeding regarding the filing of the
Information herein; thus, the Court is not persuaded that the claim of the accused Yusop with regard to the
inadequacy of the proceedings as against him could still be validly entertained at this time. This is more
particularly significant under Section 27 of Republic Act 6770 and xxx Criminal Cases 24524 and 24525
refer to the same incident although the prosecution, for its part, has filed Infomations under different statutes
covering the same incident. Thus, the claim of accused Yusop that he was not notified with respect to one of
the cases on an identical set of facts herein is not [of] particular significance since this would the be indulging
in a superfluity.

xxx xxx xxx

"Thus, in view of all the following, the Court will now proceed to the arraignment of the accused herein."

The Issue

Although the parties did not specify the issue in this case, it is clear from their submissions that they are asking this
Court to resolve this question: Whether the Sanduganbayan, despite being informed of the lack of preliminary
investigation with respect to petitioner, In Criminal Case No. 24524, committed grave abuse of discretion in
proceeding with his arraignment.

The Court's Ruling

The Petition is meritorious in part. While petitioner is entitled to preliminary investigation, the case against him
should not be dismissed.

Main Issue:

Preliminary Investigation

Preliminary investigation is "an inquiry or proceeding to determine whether there is sufficient ground to engender a
well-founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held
for trial."7 The Court explained that the rationable of preliminary investigation is to "protect the accused from the
inconvenience, expense and burden of defending himself in a formal trial unless the reasonable probability of his guilt
shall have been first ascertained in a fairly summary proceeding by a competent officer."8

The Rules of Court requires such investigation before an information for an offense punishable by at least four years,
two months and one day may be filed in court.9 The old Rules, on the other hand, mandates preliminary investigation
of an offense cognizable by the regional trial court.10

Petitioner is charged in Criminal Case No. 24254 with violation of Section 3-a of RA of 3019. Such offense is
punishable with, among other penalties, imprisonment of six years and one month to fifteen years.11 Under the
aforecited Rules, whether in the old or the revised version, he is entitled to a preliminary investigation.

It is undisputed, however, that before the Information against petitioner was filed, no preliminary invertigation had
been conducted. In fact, the Office of the Ombudsman admitted that "petitioner was denied of his right to preliminary
investigation."12

We find no basis for the Sandiganbayan's ruling that petitioner "had not given timely notice nor any statement of the
alleged inadequacy of the proceeding regarding the filing of the Information."

First, there was no showing that petitioner was notified of the charges filed by Erlinda Fadri. As earlier noted, he had
not been named a s arepondent in the September 19, 1995 Order of the Office of the Ombudsman in Mindanao. His
name did not even appear in the caption of its January 15, 1998 Resolution,13 which recommended the filing of
charges against the accused. Indeed, in his Compliance with the August 26, 1998 Sandiganbayan
Resolution,14Special Prosecution Officer Diosdado V. Calonge manifested that petitioner "was not notified of the
proceedings of the preliminary investigation and was accordingly not given the opportunity to be heard thereon."15

After learning of the filing of the Information against him when he was served a Warrant of Arrest, petitioner did not
dally. He immediately informed the Sandiganbayan that no preliminary investigation had been conducted in regard to
him. Several months later, moments before his arraignment, he reiterated his prayer that the preliminary investigation
be conducted. In this light, the Sandiganbayan erred in saying that he had not given the court timely notice of this
deficiency.

Even assuming that prior to the filing of the Information petitioner had known that the proceedings and the
investigation against his co-accused were pending, he cannot be expected to know of the investigator's subsequent act
of charging him. Precisely, he had not been previously included therein and, consequently, he had not been notified
thereof.

In Go v. Court of Appeals,16 this Court held that "the right to preliminary investigation is waived when the accused
fails to invoke it before or at the time of entering a plea at arraignment." Conversely, if the accused does invoke it
before arraignment, as the petitioner did in this case, the right is not waived.

Neither did the filing of a bail bond constitute a waiver of petitioner's right to preliminary investigation. Under Section
26, Rule 114 of the Revised Rules of Criminal Procedure, "[a]n application for or admission to bai; shall not bar the
accused from challenging the validity of his arrest or the legality of the warrant issued therefor, or from assailing the
regularity or questioning the absence of a preliminary investigation of the charge against him, provided that he raises
them before entering his plea. xxx."

We stress that the right to preliminary investigation is substantive, not merely formal or technical. To deny it to
petitioner would deprive him of the full measure of his right to due process.17 Hence, preliminary investigation with
regard to him must be conducted.

We desagree with the Sandiganbayan's reliance on Section 27 of Republic Act 6770.18 This provision cannot justify
the evasion of the requirement set forth in the Rules of Court for conducting preliminary investigation. The law does
not sanction such interpretation, for it deals merely with the finality of orders, directives and decisions of the Office of
the Ombudsman -- not the deprivation of the substantive right to a preliminary investigation. Moreover, petitioner
cannot be bound by the Ombudsman's January 15, 1998 Resolution, which recommended the filing of charges. He
was not a party to the case and was not accorded any right to present evidence on his behalf.

In any event, even the Ombudsman agrees that petitioner was deprived of this right and believes that the baisc
rudiments of due process are complied with."19 For its part, the Sandiganbayan opted to remain silent when asked by
this Court to comment on the Petition.

Dismissal of the Charges

Not Justified

Petitioner also prays that the cases against him be dismissed for lack of preliminary investigation.20 We disagree. In
the first place, nowhere in the Revised Rules of Criminal Procedure, or even the old Rules, is there any mention that
this lack is a ground for a motion to quash.21 Furthermore, it has been held that responsibility for the "absence of
preliminary investigation does not go to the jurisdiction of the court but merely to the regularity of the
proceedings."22 We reiterate the following ruling of the Court in People v. Gomez:

"If there were no preliminary investigations and the defendants, before entering their plea, invite the attention
of the court of their absence, the court, instead of dismissing the information, should conduct such
 investigation, order the fiscal to conduct it or remand the case to the inferior court so the the preliminary
investigation may be conducted."23

In sum, Criminal Case No. 24524 must be suspended with respect to petitioner even if the case is already undergoing
trial, because "[t]o reach any other conclusion here, that is, to hold that petitioner's rights to a preliminary
investigation and to bail were effectively obliterated to benefit from its own wrong or culpable ommission and
effectively to dilute important rights of accused persons well-nigh to the vanishing point."24

WHEREFORE, the Petition is partially GRANTED. The assailed Orders are REVERSED, and the Office of the
Ombudsman is hereby ORDERED to conduct forthwith a preliminary investigation of the charge of violation of
Section 3-a of RA 3019 against Petitioner Alvarez Aro Yusop. The trial on the merits of Criminal Case No. 24524
shall be SUSPENDED in regard to petitioner until the conclusion of the preliminary investigation. No pronouncement
as to costs.

SO ORDERED.