G.R. No.

123191 December 17, 1998

OSCAR L. GOZOS, Presiding Prosecutor of Batangas, EDNA DYOGI, et al., petitioners,

vs.
HON. PATERNO C. TAC-AN, Presiding Judge, Regional Trial Court, Branch 84, Batangas City;
SPO2 JAIME V. BLANCO, SPO3 PEDRO CASTILLO, SPO3 CIRIANO S. SULIT, SPO4 ANIANO
ATIENZA, and SPO1 ILDEFONZO CASTILLO, respondent.

G.R. No. 123442 December 17, 1998

PEOPLE OF THE PHILIPPINES, represented by the Provincial Prosecutor of

Batangas, petitioner,
vs.
HON. PATERNO C. TAC-AN, Presiding Judge, Regional Trial Court Branch 84, Batangas City,
and SPO2 JAIME V. BLANCO, respondent.

MENDOZA, J.:

These are two special civil actions for certiorari under Rule 65, §1 of the Rules of Court seeking to
set aside order, dated October 18, 1995, November 22, 1995, and January 3, 1996, issued by
respondent Judge Paterno Tac-an of the Regional Trial Court, Batangas City. A summary of the gist
of the orders follows:

1.) Under dated October Blg 18, 1995 — Respondent judge directed the Office of the Provincial
Prosecutor, Batangas City to amend the information filed on June 26, 1995 for the death of Gilbert
Dyogi by the Office of the Deputy Ombudsman for the Military against private respondents SPO2
Jaime Blanco, SPO3 Pedro Castillo, SPO3 Ciriaco Sulit. SPO2 Aniano Atienza, and SPO1 Ildefonso
Castillo, members of the Philippine National Police, San Jose, Batangas. The amendment would
reduce the charge against private respondent SPO2 Jaime Blanco from murder to homicide and
drop the rest of the private respondents from the information.

2.) Order November 22, 1995 — Acting on the motion for reconsideration filed on November 7, 1995
by the complainant Edna Dyogi, respondent judge directed the Office of the Provincial Prosecutor,
Batangas City to amend the information by including private respondent Pedro Castillo as an
accomplice in the crime. However, respondent judge denied the motion insofar as it sought to
include the other private respondents as accused in the criminal case.

3.) Order dated January 3, 1996 — Respondent Judge Tac-an denied the second motion for
reconsideration filed by complainant Edna Dyogi, questioning the authority of respondent to require
the Provincial Prosecutor to amend the information.

The petition in G.R. No. 123442 was filed by the Solicitor General on behalf of the People of the
Philippines, while the petition in G.R. No. 123191 was filed by complainant Edna Dyogi. In a
manifestation, dated February 7, 1996, complainant adopted the petition of the Solicitor General, for
which reason the Court directed in its resolution, dated August 5, 1996, the consolidation of the two
cases.

The facts are as follows:

It appears that on the night of February 9, 1995, the officials, teachers, and students of the
Concepcion Aguila Memorial College in San Jose, Batangas organized a school party. While the
party was going on, the principal, Felizardo Aguila, was informed that several men, who appeared to
be drunk, were trying to force their way through the main gate. One of the men seemed armed with a
handgun. After calling the police. Aguila went to the main gate, where he asked the men what their
business was.1

At this point, private respondents Blanco and Atienza arrived at the school. They were shortly joined
by private respondents Pedro Castillo, Sulit, and Ildefonso Castillo, who were all members of the
Philippine National Police of San Jose, Batangas. They demanded from the man armed with the
handgun, who later turned out to be the victim Gilbert Dyogi, that he surrender his gun and go with
them to the station.2 Gilbert Dyogi gave the handgun to the respondents, who then asked to
see his license. He produced a sheet of paper from his wallet which he handed to private
respondents. After allowing them to inspect the weapon and the alleged license, Gilbert
Dyogi asked the private respondents to give them back to him. However, private respondent
Blanco, who had the handgun, refused to do so.3

What exactly followed is unclear. Before long the two were grappling for possession of the
gun. Apparently, Blanco pulled out his sidearm and fired at Gilbert Dyogi twice.4

In connection with the fatal incident, Gerald Varez, Investigator in the Office of the
Ombudsman for the Military, charged private respondents Blanco, Pedro Castillo, Sulit,
Atienza, and Ildefonso Castillo with murder in an information filed with the Regional Trial
Court of Batangas City. The information alleged:

That sometime on February 9, 1995 at Poblacion, San Jose, Batangas, and

within the jurisdiction of this Honorable Court, accused SPO2 Jaime V. Blanco,
SPO3 Pedro V. Castillo, SPO3 Ciriaco R. Sulit, SPO2 Aniano Atienza and SPO1
Ildefonso R. Castillo, all public officers, being then members of the Philippine
National police of San Jose, Batangas, conspiring and confederating, and
taking advantage of their official positions, with treachery and taking
advantage of superior strength, with intent to kill, did then and there, wilfully,
unlawfully and feloniously shoot with a firearm one Gilbert Dyogi, who was
then weak and defenseless, thereby inflicting upon the latter, a fatal wound
which caused his instantaneous death.5

Private respondents Blanco, Pedro Castillo, Sulit, Atienza, and Ildefonso Castillo filed a
Motion to Hold Issuance of Warrant and Motion to Quash with Motion to Set Incidents for
Hearing in which they prayed:

WHEREFORE, it is respectfully prayed that the Honorable Court first determine

whether or not there is probable cause against all the accused before the
issuance of a warrant of arrest, and the case be set for open hearing with
notice to all the parties for that purpose, and that in the meantime, the
issuance of a warrant of arrest be held in abeyance, in the interest of justice,
and thereafter the information be quashed and/or dismissed as against the
accused against whom there is no probable cause.6

Petitioner Edna Dyogi opposed the motion. She maintained that there was probable cause for
the filing of the case against private respondents Blanco, Pedro Castillo, Sulit, Atienza, and
Ildefonso Castillo. Respondent Tac-an heard the parties on their motion after which, in an
order dated October 18, 1995, he ruled as follows:
 WHEREFORE, it is the opinion of this Court that there is probable cause to
hold SPO2 Jaime V. Blanco to stand trial for homicide only. His co-accused
SPO3 Pedro V. Castillo, SPO3 Ciriaco R. Sulit, SPO2 Aniano Atienza and
Ildefonso R. Castillo are hereby discharged from the information for
insufficiency of evidence.

xxx xxx xxx

Let a warrant of arrest be issued for the apprehension of SPO2 Jaime V.

Blanco who is reportedly assigned at the Provincial Command Headquarters,
PNP, Puerto Princesa, Palawan. The amount of P50,000.00 in cash and/or
property is hereby fixed for his provisional liberty.

xxx xxx xxx

The Provincial Prosecutor or his authorized assistants are hereby directed to

file an Amended Information for purposes of formality and convenience within
five (5) days from receipt thereof.

xxx xxx xxx

. . . . This duty of the judge necessarily includes the determination of the

proper offense under which the accused is to undergo trial. To do otherwise
would be tantamount to dereliction of duty. Any pronouncement to the
contrary has been repealed by the 1987 Constitution and by the latest Supreme
Court rulings on this matter.7

Petitioner Dyogi moved for a reconsideration, arguing that the crime committed was murder,
and not homicide, and that there was probable cause to believe that private respondents
Blanco, Pedro Castillo, Sulit, Atienza, and Ildefonso Castillo were guilty of the offense. In his
order, dated November 22, 1995, respondent judge partially reconsidered his order by
directing the inclusion of respondent Pedro Castillo in the information not as principal but
only as an accomplice. In all other respect, he affirmed his previous order. The dispositive
portion of his order, dated November 22, 1996, reads:

WHEREFORE, PREMISES CONSIDERED, this Court resolves:

1. That the finding of probable cause for homicide only against accused Jaime
V. Blanco for shooting to death Gilbert Dyogi on February 9, 1995 at around
eleven in the evening is hereby maintained.

2. That there is probable cause to hold accused PEDRO V. CASTILLO liable as

accomplice only by cooperating with a simultaneous act of intervention which
act was not indispensable, but facilitated the killing of Dyogi by Blanco, by
then holding Ben Flores and preventing him from approaching and dissuading
Dyogi from insisting in retaining his firearm in his person or recovering the
possession thereof from said Blanco or in preventing Flores from pacifying
Blanco from shooting Dyogi. Such act is contrary to law.

Let a Warrant of Arrest be issued for his apprehension. Bail for his temporary
liberty is fixed at P10,000.00. If an insurance company should serve as
 bondsman, the authority of the issuing person must be supported by a board
resolution to that effect;

3. As regards the rest of the accused, namely: Ciriaco P. Sulit, Aniano Atienza,
and Ildefonso R. Castillo, the finding that there is no probable cause is hereby
maintained. However, the prosecution may, at its option, within a period of
twenty (20) days from receipt of this Order, adduce additional evidence, if any,
against them before this Court;

4. That the information shall be amended accordingly by the public prosecutor,

as a matter of form and for convenience in the proceedings. The public
prosecutor's office is hereby enjoined not only to show obedience to duty and
fairness, but moral courage as well, to follow the path of legal rectitude, which
hitherto was covered with mist but is now illuminated by the guidance of the
Constitution unto this Court. The Court is now the final arbiter under the 1987
Constitution in determining probable cause before a Warrant of Arrest shall
issue whereas before it was the prerogative of the public prosecutor to so
determine and whose own ascertainment or exercise of discretion may not be
interfered with by the Court, save in cases of grave abuse of discretion, and
whose information filed may not be ordered to be amended by the Court. Any
public officer must yield to the Constitution as he has the sworn duty to obey
and defend
it.8

On December 8, 1995, petitioner Edna Dyogi filed another motion for reconsideration,
contending that the power to determine the nature of the offense to be charged was vested in
the Provincial Prosecutor and not in the Regional Trial Court. However, petitioner's motion
was denied by the court in its order, dated January 3, 1996, on the ground that it was actually
a second motion for reconsideration which is not allowed to be filed. Hence, these petitions
for certiorari filed by the Solicitor General and by the complainant in the criminal case, Edna
Dyogi.

Petitioners raise the following issues:

Whether or not the Respondent Judge acted without or in excess of

jurisdiction and/or with grave abuse of discretion amounting to lack of
jurisdiction:

1. in conducting another preliminary investigation in a proceeding to determine

probable cause for the issuance of warrants of arrest.

2. in ordering the amendment of the crime charged in the information from

"murder" to "homicide" and the number and nature of the participation of the
accused charged in the information filed by the Office of the Deputy
Ombudsman for the Military.9

We find both petitions to be meritorious.

Rule 112, §1 of the Rules of Court defines a preliminary investigation as "an inquiry or
proceeding for the purpose of determining whether there is sufficient ground to engender a
well-founded belief that a crime cognizable by the Regional Trial Court has been committed
and that the respondent is probably guilty thereof, and should be held for trial." Rule 112, §2
of the Rules of Court enumerates the officers authorized to conduct preliminary
investigations, as follows:

The following may conduct a preliminary investigation:

(a) Provincial or city fiscals and their assistants;

(b) Judges of the Municipal Trial Courts and Municipal Circuit Trial Courts;

(c) National and Regional state prosecutors; and

(d) Such other officers as may be authorized by law.

Their authority to conduct preliminary investigation shall include all crimes

cognizable by the proper court in their respective territorial Jurisdictions.

Thus, as provided in Rule 112, §2(d), other officers may be authorized by law to conduct
preliminary investigations. Indeed, under R.A. No. 6770, otherwise known as the Ombudsman
Act of 1989, investigators of the Office of the Ombudsman may conduct preliminary
investigations of cases involving public officers. Thus, §15 (1) of the said law provides:

The Office of the Ombudsman shall have the following powers, functions and
duties:

(1) Investigate and prosecute on its own or on complaint by any person, any
act or omission of any public officer or employee, office or agency, when such
act or omission appears to be illegal, unjust, improper, or inefficient. It has
primary jurisdiction over cases cognizable by the Sandiganbayan and, in the
exercise of this primary jurisdiction, it may take over, at any stage, from any
investigatory agency of Government, the investigation of such cases.

The investigators of the Office of the Ombudsman have concurrent jurisdiction with public
prosecutors to conduct preliminary investigations in all cases involving public officers,
whether falling under the jurisdiction of the Sandiganbayan or the regular courts. For this
purpose, Administrative Order No. 8, dated November 8, 1990, of the Office of the
Ombudsman provides:

For purposes of investigation and prosecution. Ombudsman cases involving

criminal offenses may be subdivided into two classes to wit: (1) those
cognizable by the Sandiganbayan, and (2) those falling under the jurisdiction
of the regular courts. . . .

The power to investigate or conduct a preliminary investigation in any

Ombudsman case may be exercised by an investigator or prosecutor of the
Office of the Ombudsman, or by any Provincial or City Prosecutor or their
assistants, either in their regular capacities or as deputized Ombudsman
Prosecutors.

Thus, while the power of an investigator of the Office of the Ombudsman for the Military is
undoubted, no similar authority is vested in judges of Regional Trial Courts as they are not
among those mentioned in Rule 112, §2 as authorized to conduct preliminary investigations.
As this Court pointed out in Castillo v. Villaluz:10

Judges of Regional Trial Courts (formerly Courts of First Instance) no longer

have authority to conduct preliminary investigations. That authority, at one
time reposed in them under Sections 13, 14 and 16, Rule 112 of the Rules of
Court of 1964, was removed from them by the 1985 Rules on Criminal
Procedure, effective on January 1, 1985, which deleted all provisions granting
that power to said judges.

The 1988 Amendments to the 1985 Rules on Criminal Procedure, declared

effective on October 1, 1988, did not restore that authority to Judges of
Regional Trial Courts; said amendments did not in fact deal at all with the
officers or courts having authority to conduct preliminary investigations.

As explained in Salta v. Court of Appeals,11 the preliminary investigation proper is,

therefore, not a judicial function. It is a part of the prosecution's job, a function of the
executive.

It is evident that in this case, respondent judge conducted an inquiry, not only for the
purpose of determining whether there was probable cause to order the arrest of private
respondents Blanco, Pedro Castillo, Sulit, Atienza, and Ildefonso Castillo, but for the purpose
of determining whether there was sufficient evidence to prosecute them as well. Indeed, in
his questioned orders, respondent judge did not only determine the existence of probable
cause for the issuance of warrants of arrest, but also what the charge should be and who
should be charged. In so doing, respondent judge exceeded his authority.

To justify his orders, respondent judge invokes Art. III, §2 of the 1997 Constitution, which
provides that "no search warrant or warrant of arrest shall issue except upon probable cause
to be determined personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized." However, this provision applies to the
issuance of arrest and search warrants, which should be distinguished from a preliminary
investigation. As already stated, the determination of probable cause for the issuance of such
orders is vested in the courts, but the conduct of preliminary investigations is entrusted to
the executive branch, with the exception of inferior court judges. According to this Court
in People v. Inting:12

Judges and prosecutors alike should distinguish the preliminary inquiry which
determines probable cause for the issuance of a warrant of arrest from the
preliminary investigation proper which ascertains whether the offender should
be held for trial or released . . . . The determination of probable cause for the
warrant of arrest is made by the Judge. The preliminary investigation proper —
whether or not there is reasonable ground to believe that the accused is guilty
of the offense charged and, therefore, whether or not he should be subjected
to the expenses, rigors and embarrassment of trial — is the function of the
prosecutor.

xxx xxx xxx

We reiterate that preliminary investigation should be distinguished as to

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

Private respondents Pedro Castillo, Sulit, Atienza, and Ildefonso Castillo defend the assailed
orders on the theory that, since in their "Motion to Hold Issuance of Warrant and Motion to
Quash with Motion to Set Incidents for Hearing" they also sought to quash the original
information filed by Ombudsman Investigator Varez of the Office of the Ombudsman for the
Military, respondent judge properly acted in hearing the motion to quash. However, private
respondents sought to quash the information on the theory that there was no probable cause
against them. Lack of probable cause is not one of the grounds for a motion to quash under
Rule 117, §3 of the Rules of Criminal Procedure. A motion to quash should be based on a
defect in the information which is evident on its face. The guilt or innocence of the accused,
their degree of participation, and the mitigating, aggravating, or alternative circumstances
which should be appreciated are properly the subject of trial on the merits rather than a
motion to quash. As held in Cruz v. People.13

It must here be stressed that a preliminary investigation is merely inquisitorial,

and it is often the only means of discovering the persons who may be
reasonably charged with a crime, to enable the prosecutor to prepare his
complaint or information. It is not a trial of the case on the merits and has no
purpose except that of determining whether a crime has been committed and
whether there is probable cause to believe that the accused is guilty thereof,
and it does not place the persons against whom it is taken in jeopardy.

The established rule is that a preliminary investigation is not the occasion for
the full and exhaustive display of the parties' evidence; it is for the
presentation of such evidence only as may engender a well-grounded belief
that an offense has been committed and that the accused is probably guilty
thereof.

Hence, notwithstanding the contrary opinion of the judge regarding the designation of the
offense committed, for as long as he finds probable cause for the offense charged, he should
issue a warrant of arrest against the accused for the crime charged in the information.

WHEREFORE, the petition is hereby granted and the orders, dated October 18, 1995,
November 22, 1995, and January 3, 1996, of respondent Judge Paterno Tac-an are
ANNULLED and SET ASIDE.

SO ORDERED.