G.R. No.

101837 February 11, 1992

ROLITO GO y TAMBUNTING, petitioner,
vs.
THE COURT OF APPEALS, THE HON. BENJAMIN V. PELAYO, Presiding Judge, Branch 168,
Regional Trial Court, NCJR Pasig, M.M., and PEOPLE OF THE PHILIPPINES, respondents.

FELICIANO, J.:

According to the findings of the San Juan Police in their Investigation Report,   on 2 July 1991, Eldon
1

Maguan was driving his car along Wilson St., San Juan, Metro Manila, heading towards P. Guevarra
St. Petitioner entered Wilson St., where it is a one-way street and started travelling in the opposite or
"wrong" direction. At the corner of Wilson and J. Abad Santos Sts., petitioner's and Maguan's cars
nearly bumped each other. Petitioner alighted from his car, walked over and shot Maguan inside his
car. Petitioner then boarded his car and left the scene. A security guard at a nearby restaurant was
able to take down petitioner's car plate number. The police arrived shortly thereafter at the scene of
the shooting and there retrieved an empty shell and one round of live ammunition for a 9 mm caliber
pistol. Verification at the Land Transportation Office showed that the car was registered to one Elsa
Ang Go.

The following day, the police returned to the scene of the shooting to find out where the suspect had
come from; they were informed that petitioner had dined at Cravings Bake Shop shortly before the
shooting. The police obtained a facsimile or impression of the credit card used by petitioner from the
cashier of the bake shop. The security guard of the bake shop was shown a picture of petitioner and
he positively identified him as the same person who had shot Maguan. Having established that the
assailant was probably the petitioner, the police launched a manhunt for petitioner.

On 8 July 1991, petitioner presented himself before the San Juan Police Station to verify news
reports that he was being hunted by the police; he was accompanied by two (2) lawyers. The police
forthwith detained him. An eyewitness to the shooting, who was at the police station at that time,
positively identified petitioner as the gunman. That same day, the police promptly filed a complaint
for frustrated homicide   against petitioner with the Office of the Provincial Prosecutor of Rizal. First
2

Assistant Provincial Prosecutor Dennis Villa Ignacio ("Prosecutor") informed petitioner, in the
presence of his lawyers, that he could avail himself of his right to preliminary investigation but that he
must first sign a waiver of the provisions of Article 125 of the Revised Penal Code. Petitioner refused
to execute any such waiver.

On 9 July 1991, while the complaint was still with the Prosecutor, and before an information could be
filed in court, the victim, Eldon Maguan, died of his gunshot wound(s).

Accordingly, on 11 July 1991, the Prosecutor, instead of filing an information for frustrated homicide,
filed an information for murder   before the Regional Trial Court. No bail was recommended. At the
3

bottom of the information, the Prosecutor certified that no preliminary investigation had been
conducted because the accused did not execute and sign a waiver of the provisions of Article 125 of
the Revised Penal Code.

In the afternoon of the same day, 11 July 1991, counsel for petitioner filed with the Prosecutor an
omnibus motion for immediate release and proper preliminary investigation,  alleging that the
4

warrantless arrest of petitioner was unlawful and that no preliminary investigation had been
conducted before the information was filed. Petitioner also prayed that he be released on
recognizance or on bail. Provincial Prosecutor Mauro Castro, acting on the omnibus motion, wrote
on the last page of the motion itself that he interposed no objection to petitioner being granted
provisional liberty on a cash bond of P100,000.00.

On 12 July 1991, petitioner filed an urgent ex-parte motion for special raffle   in order to expedite
5

action on the Prosecutor's bail recommendation. The case was raffled to the sala of respondent
Judge, who, on the same date, approved the cash bond   posted by petitioner and ordered his
6

release.   Petitioner was in fact released that same day.

7

On 16 July 1991, the Prosecutor filed with the Regional Trial Court a motion for leave to conduct
preliminary investigation  and prayed that in the meantime all proceedings in the court be
8

suspended. He stated that petitioner had filed before the Office of the Provincial Prosecutor of Rizal
an omnibus motion for immediate release and preliminary investigation, which motion had been
granted by Provincial Prosecutor Mauro Castro, who also agreed to recommend cash bail of
P100,000.00. The Prosecutor attached to the motion for leave a copy of petitioner's omnibus motion
of 11 July 1991.

Also on 16 July 1991, the trial court issued an Order   granting leave to conduct preliminary
9

investigation and cancelling the arraignment set for 15 August 1991 until after the prosecution shall
have concluded its preliminary investigation.

On 17 July 1991, however, respondent Judge motu proprio issued an Order,   embodying the

10

following: (1) the 12 July 1991 Order which granted bail was recalled; petitioner was given 48 hours
from receipt of the Order to surrender himself; (2) the 16 July 1991 Order which granted leave to the
prosecutor to conduct preliminary investigation was recalled and cancelled; (3) petitioner's omnibus
motion for immediate release and preliminary investigation dated 11 July 1991 was treated as a
petition for bail and set for hearing on 23 July 1991.

On 19 July 1991, petitioner filed a petition for certiorari, prohibition and mandamus before the

Supreme Court assailing the 17 July 1991 Order, contending that the information was null and void
because no preliminary investigation had been previously conducted, in violation of his right to due
process. Petitioner also moved for suspension of all proceedings in the case pending resolution by
the Supreme Court of his petition; this motion was, however, denied by respondent Judge.

On 23 July 1991, petitioner surrendered to the police.

By a Resolution dated 24 July 1991, this Court remanded the petition for certiorari, prohibition
and mandamus to the Court of Appeals.

On 16 August 1991, respondent Judge issued an order in open court setting the arraignment of
petitioner on 23 August 1991.

On 19 August 1991, petitioner filed with the Court of Appeals a motion to restrain his arraignment.

On 23 August 1991, respondent judge issued a Commitment Order directing the Provincial Warden
of Rizal to admit petitioner into his custody at the Rizal Provincial Jail. On the same date, petitioner
was arraigned. In view, however, of his refusal to enter a plea, the trial court entered for him a plea
of not guilty. The Trial court then set the criminal case for continuous hearings on 19, 24 and 26
September; on 2, 3, 11 and 17 October; and on 7, 8, 14, 15, 21 and 22 November 1991.  11
On 27 August 1991, petitioner filed a petition for habeas corpus 12 in the Court of Appeals. He alleged that in view
of public respondent's failure to join issues in the petition for certiorari earlier filed by him, after the lapse of more than a month, thus
prolonging his detention, he was entitled to be released on habeas corpus.

On 30 August 1991, the Court of Appeals issued the writ of habeas corpus.   The petition 13

for certiorari, prohibition and mandamus, on the one hand, and the petition for habeas corpus, upon
the other, were subsequently consolidated in the Court of Appeals.

The Court of Appeals, on 2 September 1991, issued a resolution denying petitioner's motion to
restrain his arraignment on the ground that that motion had become moot and academic.

On 19 September 1991, trial of the criminal case commenced and the prosecution presented its first
witness.

On 23 September 1991, the Court of Appeals rendered a consolidated decision   dismissing the two 14

(2) petitions, on the following grounds:

a. Petitioner's warrantless arrest was valid because the offense for which he was
arrested and charged had been "freshly committed." His identity had been
established through investigation. At the time he showed up at the police station,
there had been an existing manhunt for him. During the confrontation at the San
Juan Police Station, one witness positively identified petitioner as the culprit.

b. Petitioner's act of posting bail constituted waiver of any irregularity attending his
arrest. He waived his right to preliminary investigation by not invoking it properly and
seasonably under the Rules.

c. The trial court did not abuse its discretion when it issued the 17 July 1991 Order
because the trial court had the inherent power to amend and control its processes so
as to make them conformable to law and justice.

d. Since there was a valid information for murder against petitioner and a valid
commitment order (issued by the trial judge after petitioner surrendered to the
authorities whereby petitioner was given to the custody of the Provincial Warden),
the petition for habeas corpus could not be granted.

On 3 October 1991, the prosecution presented three (3) more witnesses at the trial. Counsel for
petitioner also filed a "Withdrawal of Appearance"   with the trial court, with petitioner's conformity.
15

On 4 October 1991, the present Petition for Review on Certiorari was filed. On 14 October 1991, the
Court issued a Resolution directing respondent Judge to hold in abeyance the hearing of the criminal
case below until further orders from this Court.

In this Petition for Review, two (2) principal issues need to be addressed: first, whether or not a
lawful warrantless arrest had been effected by the San Juan Police in respect of petitioner Go; and
second, whether petitioner had effectively waived his right to preliminary investigation. We consider
these issues seriatim.

In respect of the first issue, the Solicitor General argues that under the facts of the case, petitioner
had been validly arrested without warrant. Since petitioner's identity as the gunman who had shot
Eldon Maguan on 2 July 1991 had been sufficiently established by police work, petitioner was validly
arrested six (6) days later at the San Juan Police Station. The Solicitor General invokes Nazareno
v. Station Commander, etc., et al.,   one of the seven (7) cases consolidated with In the Matter of
16

the Petition for Habeas Corpus of Roberto Umil, etc., v. Ramos, et al.   where a majority of the Court
17

upheld a warrantees arrest as valid although effected fourteen (14) days after the killing in
connection with which Nazareno had been arrested. Accordingly, in the view of the Solicitor General,
the provisions of Section 7, Rule 112 of the Rules of Court were applicable and because petitioner
had declined to waive the provisions of Article 125 of the Revised Penal Code, the Prosecutor was
legally justified in filing the information for murder even without preliminary investigation.

On the other hand, petitioner argues that he was not lawfully arrested without warrant because he
went to the police station six (6) days after the shooting which he had allegedly perpetrated. Thus,
petitioner argues, the crime had not been "just committed" at the time that he was arrested.
Moreover, none of the police officers who arrested him had been an eyewitness to the shooting of
Maguan and accordingly none had the "personal knowledge" required for the lawfulness of a
warrantees arrest. Since there had been no lawful warrantless arrest. Section 7, Rule 112 of the
Rules of Court which establishes the only exception to the right to preliminary investigation, could
not apply in respect of petitioner.

The reliance of both petitioner and the Solicitor General upon Umil v. Ramos is, in the circumstances
of this case, misplaced. In Umil v. Ramos, by an eight-to-six vote, the Court sustained the legality of
the warrantless arrests of petitioners made from one (1) to fourteen days after the actual commission
of the offenses, upon the ground that such offenses constituted "continuing crimes." Those offenses
were subversion, membership in an outlawed organization like the New People's Army, etc. In the
instant case, the offense for which petitioner was arrested was murder, an offense which was
obviously commenced and completed at one definite location in time and space. No one had
pretended that the fatal shooting of Maguan was a "continuing crime."

Secondly, we do not believe that the warrantees "arrest" or detention of petitioner in the instant case
falls within the terms of Section 5 of Rule 113 of the 1985 Rules on Criminal Procedure which
provides as follows:

Sec. 5 Arrest without warrant; when lawful. — A peace officer or a private person
may, without warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;

(b) When an offense has in fact just been committed, and he has personal
knowledge of facts indicating that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily confined
while his case is pending, or has escaped while being transferred from one
confinement to another.

In cases falling under paragraphs (a) and (b) hereof, the person arrested without a
warrant shall be forthwith delivered to the nearest police station or jail, and he shall
be proceed against in accordance with Rule 112, Section 7.

Petitioner's "arrest" took place six (6) days after the shooting of Maguan. The "arresting" officers
obviously were not present, within the meaning of Section 5(a), at the time petitioner had allegedly
shot Maguan. Neither could the "arrest" effected six (6) days after the shooting be reasonably
regarded as effected "when [the shooting had] in fact just been committed" within the meaning of
Section 5(b). Moreover, none of the "arresting" officers had any "personal knowledge" of facts
indicating that petitioner was the gunman who had shot Maguan. The information upon which the
police acted had been derived from statements made by alleged eyewitnesses to the shooting —
one stated that petitioner was the gunman; another was able to take down the alleged gunman's
car's plate number which turned out to be registered in petitioner's wife's name. That information did
not, however, constitute "personal knowledge."  18

It is thus clear to the Court that there was no lawful warrantless arrest of petitioner within the
meaning of Section 5 of Rule 113. It is clear too that Section 7 of Rule 112, which provides:

Sec. 7 When accused lawfully arrested without warrant. — When a person is lawfully
arrested without a warrant for an offense cognizable by the Regional Trial Court the
complaint or information may be filed by the offended party, peace officer or fiscal
without a preliminary investigation having been first conducted, on the basis of the
affidavit of the offended party or arresting office or person

However, before the filing of such complaint or information, the person arrested may
ask for a preliminary investigation by a proper officer in accordance with this Rule,
but he must sign a waiver of the provisions of Article 125 of the Revised Penal Code,
as amended, with the assistance of a lawyer and in case of non-availability of a
lawyer, a responsible person of his choice. Notwithstanding such waiver, he may
apply for bail as provided in the corresponding rule and the investigation must be
terminated within fifteen (15) days from its inception.

If the case has been filed in court without a preliminary investigation having been first
conducted, the accused may within five (5) days from the time he learns of the filing
of the information, ask for a preliminary investigation with the same right to adduce
evidence in his favor in the manner prescribed in this Rule. (Emphasis supplied)

is also not applicable. Indeed, petitioner was not arrested at all. When he walked into San Juan
Police Station, accompanied by two (2) lawyers, he in fact placed himself at the disposal of the
police authorities. He did not state that he was "surrendering" himself, in all probability to avoid the
implication he was admitting that he had slain Eldon Maguan or that he was otherwise guilty of a
crime. When the police filed a complaint for frustrated homicide with the Prosecutor, the latter should
have immediately scheduled a preliminary investigation to determine whether there was probable
cause for charging petitioner in court for the killing of Eldon Maguan. Instead, as noted earlier, the
Prosecutor proceed under the erroneous supposition that Section 7 of Rule 112 was applicable and
required petitioner to waive the provisions of Article 125 of the Revised Penal Code as a condition
for carrying out a preliminary investigation. This was substantive error, for petitioner was entitled to a
preliminary investigation and that right should have been accorded him without any conditions.
Moreover, since petitioner had not been arrested, with or without a warrant, he was also entitled to
be released forthwith subject only to his appearing at the preliminary investigation.

Turning to the second issue of whether or not petitioner had waived his right to preliminary
investigation, we note that petitioner had from the very beginning demanded that a preliminary
investigation be conducted. As earlier pointed out, on the same day that the information for murder
was filed with the Regional Trial Court, petitioner filed with the Prosecutor an omnibus motion for
immediate release and preliminary investigation. The Solicitor General contends that that omnibus
motion should have been filed with the trial court and not with the Prosecutor, and that the petitioner
should accordingly be held to have waived his right to preliminary investigation. We do not believe
that waiver of petitioner's statutory right to preliminary investigation may be predicated on such a
slim basis. The preliminary investigation was to be conducted by the Prosecutor, not by the Regional
Trial Court. It is true that at the time of filing of petitioner's omnibus motion, the information for
murder had already been filed with the Regional Trial Court: it is not clear from the record whether
petitioner was aware of this fact at the time his omnibus motion was actually filed with the
Prosecutor. In Crespo v. Mogul,   this Court held:
19

The preliminary investigation conducted by the fiscal for the purpose of determining
whether a prima facie case exists to warranting the prosecution of the accused is
terminated upon the filing of the information in the proper court. In turn, as above
stated, the filing of said information sets in motion the criminal action against the
accused in Court. Should the fiscal find it proper to conduct a reinvestigation of the
case, at such stage, the permission of the Court must be secured. After such
reinvestigation the finding and recommendations of the fiscal should be submitted to
the Court for appropriate action. While it is true that the fiscal has the quasi-
judicial discretion to determine whether or not a criminal case should be filed in court
or not, once the case had already been brought to Court whatever disposition the
fiscal may feel should be proper in the case thereafter should be addressed for the
consideration of the Court. The only qualification is that the action of the Court must
not impair the substantial rights of the accused., or the right of the People to due
process of law.

xxx xxx xxx

The rule therefore in this jurisdiction is that once a complaint or information is filed in

Court any disposition of the case [such] as its dismissal or the conviction or acquittal
of the accused rests in the sound discretion of the Court. Although the fiscal retains
the direction and control of the prosecution of criminal cases even while the case is
already in Court he cannot impose his opinion on the trial court. The Court is the best
and sole judge on what to do with the case before it. . . .   (Citations omitted;
20

emphasis supplied)

Nonetheless, since petitioner in his omnibus motion was asking for preliminary investigation
and not for a re-investigation (Crespo v. Mogul involved a re-investigation), and since the
Prosecutor himself did file with the trial court, on the 5th day after filing the information for
murder, a motion for leave to conduct preliminary investigation (attaching to his motion a
copy of petitioner's omnibus motion), we conclude that petitioner's omnibus motion was in
effect filed with the trial court. What was crystal clear was that petitioner did ask for a
preliminary investigation on the very day that the information was filed without such
preliminary investigation, and that the trial court was five (5) days later apprised of the desire
of the petitioner for such preliminary investigation. Finally, the trial court did in fact grant the
Prosecutor's prayer for leave to conduct preliminary investigation. Thus, even on the
(mistaken) supposition apparently made by the Prosecutor that Section 7 of Rule 112 of the
Revised Court was applicable, the 5-day reglementary period in Section 7, Rule 112 must be
held to have been substantially complied with.

We believe and so hold that petitioner did not waive his right to a preliminary investigation. While
that right is statutory rather than constitutional in its fundament, since it has in fact been established
by statute, it is a component part of due process in criminal justice.   The right to have a preliminary
21

investigation conducted before being bound over to trial for a criminal offense and hence formally at
risk of incarceration or some other penalty, is not a mere formal or technical right; it is
a substantive right. The accused in a criminal trial is inevitably exposed to prolonged anxiety,
aggravation, humiliation, not to speak of expense; the right to an opportunity to avoid a process
painful to any one save, perhaps, to hardened criminals, is a valuable right. To deny petitioner's
claim to a preliminary investigation would be to deprive him the full measure of his right to due
process.

The question may be raised whether petitioner still retains his right to a preliminary investigation in
the instant case considering that he was already arraigned on 23 August 1991. The rule is 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.   In the instant case, petitioner Go had vigorously insisted on his
22

right to preliminary investigation before his arraignment. At the time of his arraignment, petitioner
was already before the Court of Appeals on certiorari, prohibition and mandamus precisely asking
for a preliminary investigation before being forced to stand trial.

Again, in the circumstances of this case, we do not believe that by posting bail petitioner had waived
his right to preliminary investigation. In People v. Selfaison,   we did hold that appellants there had
23

waived their right to preliminary investigation because immediately after their arrest, they filed bail
and proceeded to trial "without previously claiming that they did not have the benefit of a preliminary
investigation."   In the instant case, petitioner Go asked for release on recognizance or on bail and
24

for preliminary investigation in one omnibus motion. He had thus claimed his right to preliminary
investigation before respondent Judge approved the cash bond posted by petitioner and ordered his
release on 12 July 1991. Accordingly, we cannot reasonably imply waiver of preliminary investigation
on the part of petitioner. In fact, when the Prosecutor filed a motion in court asking for leave to
conduct preliminary investigation, he clearly if impliedly recognized that petitioner's claim to
preliminary investigation was a legitimate one.

We would clarify, however, that contrary to petitioner's contention the failure to accord preliminary
investigation, while constituting a denial of the appropriate and full measure of the statutory process
of criminal justice, did not impair the validity of the information for murder nor affect the jurisdiction of
the trial court. 
25

It must also be recalled that the Prosecutor had actually agreed that petitioner was entitled to bail.
This was equivalent to an acknowledgment on the part of the Prosecutor that the evidence of guilt
then in his hands was not strong. Accordingly, we consider that the 17 July 1991 order of respondent
Judge recalling his own order granting bail and requiring petitioner to surrender himself within forty-
eight (48) hours from notice, was plainly arbitrary considering that no evidence at all — and certainly
no new or additional evidence — had been submitted to respondent Judge that could have justified
the recall of his order issued just five (5) days before. It follows that petitioner was entitled to be
released on bail as a matter of right.

The final question which the Court must face is this: how does the fact that, in the instant case, trial
on the merits has already commenced, the Prosecutor having already presented four (4) witnesses,
impact upon, firstly, petitioner's right to a preliminary investigation and, secondly, petitioner's right to
be released on bail? Does he continue to be entitled to have a preliminary investigation conducted in
respect of the charge against him? Does petitioner remain entitled to be released on bail?

Turning first to the matter of preliminary investigation, we consider that petitioner remains entitled to
a preliminary investigation although trial on the merits has already began. Trial on the merits should
be suspended or held in abeyance and a preliminary investigation forthwith accorded to
petitioner.   It is true that the Prosecutor might, in view of the evidence that he may at this time have
26

on hand, conclude that probable cause exists; upon the other hand, the Prosecutor conceivably
could reach the conclusion that the evidence on hand does not warrant a finding of probable cause.
In any event, the constitutional point is that petitioner was not accorded what he was entitled to by
way of procedural due process.   Petitioner was forced to undergo arraignment and literally pushed
27

to trial without preliminary investigation, with extraordinary haste, to the applause from the audience
that filled the courtroom. If he submitted to arraignment at trial, petitioner did so "kicking and
screaming," in a manner of speaking . During the proceedings held before the trial court on 23
August 1991, the date set for arraignment of petitioner, and just before arraignment, counsel made
very clear petitioner's vigorous protest and objection to the arraignment precisely because of the
denial of preliminary investigation.   So energetic and determined were petitioner's counsel's
28

protests and objections that an obviously angered court and prosecutor dared him to withdraw or
walkout, promising to replace him with counsel de oficio. During the trial, before the prosecution
called its first witness, petitioner through counsel once again reiterated his objection to going to trial
without preliminary investigation: petitioner's counsel made of record his "continuing
objection."   Petitioner had promptly gone to the appellate court on certiorari and prohibition to
29

challenge the lawfulness of the procedure he was being forced to undergo and the lawfulness of his
detention.  If he did not walk out on the trial, and if he cross-examined the prosecution's witnesses, it
30

was because he was extremely loath to be represented by counsel de oficio selected by the trial
judge, and to run the risk of being held to have waived also his right to use what is frequently the
only test of truth in the judicial process.

In respect of the matter of bail, we similarly believe and so hold that petitioner remains entitled to be
released on bail as a matter of right. Should the evidence already of record concerning petitioner's
guilt be, in the reasonable belief of the Prosecutor, strong, the Prosecutor may move in the trial court
for cancellation of petitioner's bail. It would then be up to the trial court, after a careful and objective
assessment of the evidence on record, to grant or deny the motion for cancellation of bail.

To reach any other conclusions here, that is, to hold that petitioner's rights to a preliminary
investigation and to bail were effectively obliterated by evidence subsequently admitted into the
record would be to legitimize the deprivation of due process and to permit the Government to benefit
from its own wrong or culpable omission and effectively to dilute important rights of accused persons
well-nigh to the vanishing point. It may be that to require the State to accord petitioner his rights to a
preliminary investigation and to bail at this point, could turn out ultimately to be largely a ceremonial
exercise. But the Court is not compelled to speculate. And, in any case, it would not
be idle ceremony; rather, it would be a celebration by the State of the rights and liberties of its own
people and a re-affirmation of its obligation and determination to respect those rights and liberties.

ACCORDINGLY, the Court resolved to GRANT the Petition for Review on Certiorari. The Order of
the trial court dated 17 July 1991 is hereby SET ASIDE and NULLIFIED, and the Decision of the
Court of Appeals dated 23 September 1991 hereby REVERSED.

The Office of the Provincial Prosecutor is hereby ORDERED to conduct forthwith a preliminary
investigation of the charge of murder against petitioner Go, and to complete such preliminary
investigation within a period of fifteen (15) days from commencement thereof. The trial on the merits
of the criminal case in the Regional Trial Court shall be SUSPENDED to await the conclusion of the
preliminary investigation.

Meantime, petitioner is hereby ORDERED released forthwith upon posting of a cash bail bond of
One Hundred Thousand Pesos (P100,000.00). This release shall be without prejudice to any lawful
order that the trial court may issue, should the Office of the Provincial Prosecutor move for
cancellation of bail at the conclusion of the preliminary investigation.

No pronouncement as to costs. This Decision is immediately executory.

SO ORDERED.

Narvasa, C.J., Bidin, Medialdea, Romero and Nocon, JJ., concur.