JOVITO R. SALONGA, petitioner, vs. HON.

ERNANI CRUZ PAO, Presiding Judge of the Court of First Instance of Rizal Branch XVIII (Quezon City), HON. JUDGE RODOLFO ORTIZ, Presiding Judge of the Court of First Instance of Rizal, Branch XXXI (Quezon City) CITY FISCAL SERGIO APOSTOL of Quezon City; COL. BALBINO DIEGO and COL. ROMAN MADELLA, respondents. GUTIERREZ, JR., J.: The petitioner invokes the constitutionally protected right to life and liberty guaranteed by the due process clause, alleging that no prima facie case has been established to warrant the filing of an information for subversion against him. Petitioner asks this Court to prohibit and prevent the respondents from using the iron arm of the law to harass, oppress, and persecute him, a member of the democratic opposition in the Philippines. The background of this case is a matter of public knowledge. A rash of bombings occurred in the Metro Manila area in the months of August, September and October of 1980. On September 6, 1980, one Victor Burns Lovely, Jr., a Philippine-born American citizen from Los Angeles, California, almost killed himself and injured his younger brother, Romeo, as a result of the explosion of a small bomb inside his room at the YMCA building in Manila. Found in Lovely's possession by police and military authorities were several pictures taken sometime in May, 1980 at the birthday party of former Congressman Raul Daza held at the latter's residence in a Los Angeles suburb. Petitioner Jovito R. Salonga and his wife were among those whose likenesses appeared in the group pictures together with other guests, including Lovely. As a result of the serious injuries he suffered, Lovely was brought by military and police authorities to the AFP Medical Center (V. Luna Hospital) where he was placed in the custody and detention of Col. Roman P. Madella, under the over-all direction of General Fabian Ver, head of the National Intelligence and Security Authority (NISA). Shortly afterwards, Mr. Lovely and his two brothers, Romeo and Baltazar Lovely were charged with subversion, illegal possession of explosives, and damage to property. On September 12, 1980, bombs once again exploded in Metro Manila including one which resulted in the death of an American lady who was shopping at Rustan's Supermarket in Makati and others which caused injuries to a number of persons. On September 20, 1980, the President's anniversary television radio press conference was broadcast. The younger brother of Victor Lovely, Romeo, was presented during the conference. In his interview, Romeo stated that he had driven his elder brother, Victor, to the petitioner's house in Greenhills on two occasions. The first time was on August 20, 1980. Romeo stated that Victor did not bring any bag with him on that day when he went to the petitioner's residence and did not carry a bag when he left. The second time was in the afternoon of August 31, 1980 when he brought Victor only to the gate of the petitioner's house. Romeo did not enter the petitioner's residence. Neither did he return that day to pick up his brother. The next day, newspapers came out with almost Identical headlines stating in effect that petitioner had been linked to the various bombings in Metro Manila. Meanwhile, on September 25, 1980, Lovely was taken out of the hospital's intensive care unit and transferred to the office of Col. Madella where he was held incommunicado for some time. On the night of October 4, 1980, more bombs were reported to have exploded at three big hotels in Metro Manila, namely: Philippine Plaza, Century Park Sheraton and Manila Peninsula. The bombs injured nine people. A meeting of the General Military Council was called for October 6, 1980. On October 19, 1980, minutes after the President had finished delivering his speech before the International Conference of the American Society of Travel Agents at the Philippine International Convention Center, a small bomb exploded. Within the next twenty-four hours, arrest, search, and seizure orders (ASSOs) were issued against persons who were apparently implicated by Victor Lovely in the series of bombings in Metro Manila. One of them was herein petitioner. Victor Lovely offered himself to be a "state witness" and in his letter to the President, he stated that he will reveal everything he knows about the bombings. On October 21, 1980, elements of the military went to the hospital room of the petitioner at the Manila Medical Center where he was confined due to his recurrent and chronic ailment of bronchial asthma and placed him under arrest. The arresting officer showed the petitioner the ASSO form which however did not specify the charge or charges against him. For some time, the petitioner's lawyers were not permitted to visit him in his hospital room until this Court in the case of Ordoez v. Gen. Fabian Ver, et al., (G.R. No. 55345, October 28, 1980) issued an order directing that the petitioner's right to be visited by counsel be respected. On November 2, 1980, the petitioner was transferred against his objections from his hospital arrest to an isolation room without windows in an army prison camp at Fort Bonifacio, Makati. The petitioner states that he was not informed why he was transferred and detained, nor was he ever investigated or questioned by any military or civil authority. Subsequently, on November 27, 1980, the petitioner was released for humanitarian reasons from military custody and placed "under house arrest in the custody of Mrs. Lydia Salonga" still without the benefit of any investigation or charges. On December 10, 1980, the Judge Advocate General sent the petitioner a "Notice of Preliminary Investigation" inPeople v. Benigno Aquino, Jr., et al. (which included petitioner as a co-accused), stating that "the preliminary investigation of the above-entitled case has been set at 2:30 o'clock p.m. on December 12, 1980" and that petitioner was given ten (10) days from receipt of the charge sheet and the supporting evidence within which to file his counter-evidence. The petitioner states that up to the time martial law was lifted on January 17, 1981, and despite assurance to the contrary, he has not received any copies of the charges against him nor any copies of the so-called supporting evidence. On February 9, 1981, the records of the case were turned over by the Judge Advocate General's Office to the Ministry of Justice. On February 24, 1981, the respondent City Fiscal filed a complaint accusing petitioner, among others of having violated Republic Act No. 1700, as amended by P.D. 885 and Batas Pambansa Blg. 31 in relation to Article 142 of the Revised Penal Code. The inquest court set the preliminary investigation for March 17, 1981. On March 6, 1981, the petitioner was allowed to leave the country to attend a series of church conferences and undergo comprehensive medical examinations of the heart, stomach, liver, eye and ear including a possible removal of his left eye to save his right eye. Petitioner Salonga almost died as one of the principal victims of the dastardly bombing of a Liberal Party rally at Plaza Miranda on August 20, 1971. Since then, he has suffered serious disabilities. The petitioner was riddled with shrapnel and pieces still remain in various parts of his body. He has an AV fistula caused by a piece of shrapnel lodged one millimeter from his aorta. The petitioner has limited use of his one remaining hand and arms, is

completely blind and physical in the left eye, and has scar like formations in the remaining right eye. He is totally deaf in the right ear and partially deaf in the left ear. The petitioner's physical ailments led him to seek treatment abroad. On or around March 26, 1981, the counsel for petitioner was furnished a copy of an amended complaint signed by Gen. Prospero Olivas, dated March 12, 1981, charging the petitioner, along with 39 other accused with the violation of R.A. 1700, as amended by P.D. 885, Batas Pambansa Blg. 31 and P.D. 1736. Hearings for preliminary investigation were conducted. The prosecution presented as its witnesses Ambassador Armando Fernandez, the Consul General of the Philippines in Los Angeles, California, Col. Balbino Diego, PSC/NISA Chief, Investigation and Legal Panel of the Presidential Security Command and Victor Lovely himself. On October 15, 1981, the counsel for petitioner filed a motion to dismiss the charges against petitioner for failure of the prosecution to establish a prima facie case against him. On December 2, 1981, the respondent judge denied the motion. On January 4, 1982, he issued a resolution ordering the filing of an information for violation of the Revised Anti-Subversion Act, as amended, against forty (40) people, including herein petitioner. The resolutions of the respondent judge dated December 2, 1981 and January 4, 1982 are now the subject of the petition. It is the contention of the petitioner that no prima facie case has been established by the prosecution to justify the filing of an information against him. He states that to sanction his further prosecution despite the lack of evidence against him would be to admit that no rule of law exists in the Philippines today. After a painstaking review of the records, this Court finds the evidence offered by the prosecution utterly insufficient to establish a prima facie case against the petitioner. We grant the petition. However, before going into the merits of the case, we shall pass upon a procedural issue raised by the respondents. The respondents call for adherence to the consistent rule that the denial of a motion to quash or to dismiss, being interlocutory in character, cannot be questioned by certiorari; that since the question of dismissal will again be considered by the court when it decides the case, the movant has a plain, speedy and adequate remedy in the ordinary course of law; and that public interest dictates that criminal prosecutions should not be enjoined. The general rule is correctly stated. However, the respondents fail to appreciate or take into account certain exceptions when a petition for certiorari is clearly warranted. The case at bar is one such exception. In the case of Mead v. Angel (115 SCRA 256) the same contentions were advanced by the respondents to wit: xxx xxx xxx ... Respondents advert to the rule that when a motion to quash filed by an accused in a criminal case shall be denied, the remedy of the accused-movant is not to file a petition for certiorari or mandamus or prohibition, the proper recourse being to go to trial, without prejudice to his right to reiterate the grounds invoked in his motion to quash if an adverse judgment is rendered against him, in the appeal that he may take therefrom in the manner authorized by law. (Mill v. People, et al., 101 Phil. 599;Echarol v. Purisima, et al., 13 SCRA 309.) On this argument, we ruled: There is no disputing the validity and wisdom of the rule invoked by the respondents. However, it is also recognized that, under certain situations, recourse to the extraordinary legal remedies of certiorari, prohibition or mandamus to question the denial of a motion to quash is considered proper in the interest of "more enlightened and substantial justice", as was so declared in "Yap v. Lutero, G.R. No. L-12669, April 30, 1969." Infinitely more important than conventional adherence to general rules of criminal procedure is respect for the citizen's right to be free not only from arbitrary arrest and punishment but also from unwarranted and vexatious prosecution. The integrity of a democratic society is corrupted if a person is carelessly included in the trial of around forty persons when on the very face of the record no evidence linking him to the alleged conspiracy exists. Ex-Senator Jovito Salonga, himself a victim of the still unresolved and heinous Plaza Miranda bombings, was arrested at the Manila Medical Center while hospitalized for bronchial asthma. When arrested, he was not informed of the nature of the charges against him. Neither was counsel allowed to talk to him until this Court intervened through the issuance of an order directing that his lawyers be permitted to visit him (Ordonez v. Gen. Fabian Ver, et al., G.R. No. 55345, October 28, 1980). Only after four months of detention was the petitioner informed for the first time of the nature of the charges against him. After the preliminary investigation, the petitioner moved to dismiss the complaint but the same was denied. Subsequently, the respondent judge issued a resolution ordering the filing of an information after finding that a prima facie case had been established against an of the forty persons accused. In the light of the failure to show prima facie that the petitioner was probably guilty of conspiring to commit the crime, the initial disregard of petitioner's constitutional rights together with the massive and damaging publicity made against him, justifies the favorable consideration of this petition by this Court. With former Senator Benigno Aquino, Jr. now deceased, there are at least 38 other co-accused to be tried with the petitioner. The prosecution must present proof beyond reasonable doubt against each and every one of the 39 accused, most of whom have varying participations in the charge for subversion. The prosecution's star witness Victor Lovely and the only source of information with regard to the alleged link between the petitioner and the series of terrorist bombings is now in the United States. There is reason to believe the petitioner's citation of international news dispatches * that the prosecution may find it difficult if not infeasible to bring him back to the Philippines to testify against the petitioner. If Lovely refused to testify before an American federal grand jury how could he possibly be made to testify when the charges against the respondent come up in the course of the trial against the 39 accused. Considering the foregoing, we find it in the interest of justice to resolve at this stage the issue of whether or not the respondent judge gravely abused his discretion in issuing the questioned resolutions. The respondents contend that the prosecution will introduce additional evidence during the trial and if the evidence, by then, is not sufficient to prove the petitioner's guilt, he would anyway be acquitted. Yes, but under the circumstances of this case, at what cost not only to the petitioner but to the basic fabric of our criminal justice system? The term "prima facie evidence" denotes evidence which, if unexplained or uncontradicted, is sufficient to sustain the proposition it supports or to establish the facts, or to counter-balance the presumption of innocence to warrant a conviction. The question raised before us now is: Were the evidences against the petitioner uncontradicted and if they were unexplained or uncontradicted, would they, standing alone, sufficiently overcome the presumption of innocence and warrant his conviction? We do not think so. The records reveal that in finding a case against the petitioner, the respondent judge relied only on the testimonies of Col. Balbino Diego and Victor Lovely. Ambassador Armando Fernandez, when called upon to testify on subversive organizations in the United States nowhere mentioned the

petitioner as an organizer, officer or member of the Movement for Free Philippines (MFP), or any of the organizations mentioned in the complaint. Col. Diego, on the other hand, when asked what evidence he was able to gather against the petitioner depended only on the statement of Lovely "that it was the residence of ex-Senator Salonga where they met together with Renato Taada, one of the brains of the bombing conspiracy ... and the fact that Sen. Salonga has been meeting with several subversive personnel based in the U.S.A. was also revealed to me by Victor Burns Lovely; 11 and on the group pictures taken at former Congressman Raul Daza's birthday party. In concluding that a conspiracy exists to overthrow by violent means the government of the Philippines in the United States, his only bases were "documentary as well as physical and sworn statements that were referred to me or taken by me personally," which of course negate personal knowledge on his part. When asked by the court how he would categorize petitioner in any of the subversive organizations, whether petitioner was an organizer, officer or a member, the witness replied: A. To categorize former Senator Salonga if he were an organizer, he is an officer or he is a member, your Honor, please, we have to consider the surrounding circumstances and on his involvement: first, Senator Salonga wanted always to travel to the United States at least once a year or more often under the pretext of to undergo some sort of operation and participate in some sort of seminar. (t.s.n., April 21, 1981, pp- 14-15) Such testimony, being based on affidavits of other persons and purely hearsay, can hardly qualify as prima facie evidence of subversion. It should not have been given credence by the court in the first place. Hearsay evidence, whether objected to or not, -has no probative value as the affiant could not have been cross-examined on the facts stated therein. (See People v. Labinia, 115 SCRA 223; People v. Valero, 112 SCRA 661). Moreover, as Victor Lovely, himself, was personally examined by the court, there was no need for the testimony of Col. Diego. Thus, the inquest judge should have confined his investigation to Victor Burns Lovely, the sole witness whose testimony had apparently implicated petitioner in the bombings which eventually led to the filing of the information. Lovely's account of the petitioner's involvement with the former's bombing mission is found in his sworn statement made before Col. Diego and Lt. Col. Madella and taken on October 17, 1980 at the AFP Medical Center. Lovely was not presented as a prosecution or state witness but only as a defense witness for his two younger brothers, Romeo and Baltazar, who were both included in the complaint but who were later dropped from the information. Victor Lovely was examined by his counsel and cross-examined by the fiscal. In the process, he Identified the statement which he made before Col. Diego and Lt. Col. Madella. After Lovely's testimony, the prosecution made a manifestation before the court that it was adopting Lovely as a prosecution witness. According to Lovely's statement, the following events took place: 36. Q. Did Psinakis tell you where to stay? A. Yes, at first he told me to check-in at Manila Hotel or the Plaza Hotel where somebody would come to contact me and give the materials needed in the execution of my mission. I thought this was not safe so I disagreed with him. Mr. Psinakis changed the plan and instead told me to visit the residence of Ex-Sen. Jovito Salonga as often as I can and someone will meet me there to give the materials I needed to accomplish my mission 37. Q. Did you comply as instructed? A. Yes, I arrived in Manila on August 20, 1980 and stayed at the residence of Mr. Johnny Chua, husband of my business partner, then I went to the Hospital where I visited my mother and checked-in at Room 303 of the YMCA at Concepcion Street, Manila. 38. Q. Did you visit the residence of former Senator Jovito Salonga as directed by Psinakis? A. I visited Sen. Salonga's place three (3) times, the first visit was August 20 or 21, and the last was 4:00 P.M. of August 31, 1980. In addition to these visits, I TALKED to him on the phone about three or four times. On my first visit, I told him "I am expecting an attache case from somebody which will be delivered to your house," for which Sen. Salonga replied "Wala namang nagpunta dito at wala namang attache case para sa iyo." However, if your attache case arrives, I'll just call you." I gave him my number. On my second visit, Salonga said, "I'll be very busy so just come back on the 31st of August at 4 P.M." On that date, I was with friends at Batulao Resort and had to hurry back to be at Salonga's place for the appointment. I arrived at Salonga's place at exactly 4 P.M. 39. Q. What happened then? A. I was ushered to the sala by Mrs. Salonga and after five minutes, Sen. Salonga joined me in the sala. Sen. Salonga informed me that somebody will be coming to give me the attache case but did not tell me the name. 40. Q. Are there any subject matters you discuss while waiting for that somebody to deliver your materials? A. Yes, Salonga asked if Sen. Aquino and I have met, I explained to him the efforts of Raul Daza in setting up that meeting but I have previous business commitments at Norfolk, Virginia. I told him, however, that through the efforts of Raul Daza, I was able to talk with Ninoy Aquino in the airport telephone booth in San Francisco. He also asked about Raul Daza, Steve Psinakis and the latest opposition group activities but it seems he is well informed. 41. Q. How long did you wait until that somebody arrived? A. About thirty (30) minutes. 41. Q. What happened when the man arrived? A. This man arrived and I was greatly surprised to see Atty. Renato Taada Jovy Salonga was the one who met him and as I observed parang nasa sariling bahay si Taada nung dumating. They talked for five (5) minutes in very low tones so I did not hear what they talked about. After their whispering conversations, Sen. Salonga left and at this time Atty. "Nits" Taada told me "Nasa akin ang kailangan mo, nasa kotse." 43. Q. Were the materials given to you? A. When Sen. Salonga came back, we asked to be permitted to leave and I rode in Atty. "Nits" Taadas old Pontiac car colored dirty brown and proceeded to Broadway Centrum where before I alighted, Atty. Taada handed me a "Puma" bag containing all the materials I needed.

xxx xxx xxx 45. Q. What were the contents of the Puma bag? A. Ten (10) pieces of Westclox pocket watch with screw and wirings, ten (10) pieces electrical blasting caps 4" length, ten (10) pieces non-electrical blasting caps 1 " length, nine (9) pieces volts dry cell battery, two (2) improvised electrical testers. ten (10) plastic packs of high explosive about 1 pound weight each. However, in his interview with Mr. Ronnie Nathanielz which was aired on Channel 4 on November 8, 1980 and which was also offered as evidence by the accused, Lovely gave a different story which negates the above testimony insofar as the petitioner's participation was concerned: xxx xxx xxx Q. Who were the people that you contacted in Manila and for what purpose? A. Before I left for the Philippines, Mr. Psinakis told me to check in at the Manila Hotel or the Plaza Hotel, and somebody would just deliver the materials I would need. I disapproved of this, and I told him I would prefer a place that is familiar to me or who is close to me. Mr. Psinakis suggested the residence of Sen. Salonga. And so, I arrived in Manila on August 20, 1980, 1 made a call to Sen. Salonga, but he was out. The next day I made a call again. I was able to contact him. I made an appointment t see him. I went to Sen. Salonga's house the following day. I asked Sen. Salonga if someone had given him an attache case for me. He said nobody. Afterwards, I made three calls to Sen. Salonga. Sen. Salonga told me "call me again on the 31st of August. I did not call him, I just went to his house on the 31st of August at 4 P.M. A few minutes after my arrival Atty. Renato Taada arrived. When he had a chance to be near me, he (Atty. Tanada) whispered to me that he had the attache case and the materials I needed in his car. These materials were given to me by Atty. Tanada When I alighted at the Broadway Centrum. (Emphasis supplied) During the cross-examination, counsel for petitioner asked Lovely about the so-called destabilization plan which the latter mentioned in his sworn statement: Q. You mentioned in your statement taken on October 17, 1980, marked Exhibit "G" about the so-called destabilization plan of Aquino. When you attended the birthday party of Raul Daza wherein Jovito Salonga was also present, was this destabilization plan as alleged by you already formulated? WITNESS: A. Not to my knowledge. COURT TO WITNESS: Q. Mr. Witness, who invited you to the party? A. Raul Daza, your Honor. Q. Were you told that Mr. Salonga would be present in the party. A. I am really not quite sure, your Honor. Q. Alright. You said initially it was social but then it became political. Was there any political action taken as a result of the party? A. Only political discussion, your Honor. (TSN, July 8, 1981, pp. 69-84). Counsel for petitioner also asked Lovely whether in view of the latter's awareness of the physical condition of petitioner, he really implicated petitioner in any of the bombings that occurred in Metro Manila. The fiscal objected without stating any ground. In sustaining the objection, the Court said: Sustained . . . The use of the word 'implicate' might expand the role of Mr. Salonga. In other words, you are widening the avenue of Mr. Salonga's role beyond the participation stated in the testimony of this witness about Mr. Salonga, at least, as far as the evidence is concerned, I supposed, is only being in the house of Mr. Salonga which was used as the contact point. He never mentions Mr. Salonga about the bombings. Now these words had to be put in the mouth of this witness. That would be unfair to Mr. Salonga. (TSN. July 8, 1981, p. 67) Respondent judge further said: COURT: As the Court said earlier, the parts or portions affecting Salonga only refers to the witness coming to Manila already then the matter of . . . I have gone over the statement and there is no mention of Salonga insofar as activities in the United States is concerned. I don't know why it concerns this cross-examination. ATTY. YAP: Because according to him, it was in pursuance of the plan that he came to Manila. COURT: According to him it was Aquino, Daza, and Psinakis who asked him to come here, but Salonga was introduced only when he (Lovely) came here. Now, the tendency of the question is also to connect Salonga to the activities in the United States. It seems to be the thrust of the questions. COURT: In other words, the point of the Court as of the time when you asked him question, the focus on Salonga was only from the time when he met Salonga at Greenhills. It was the first time that the name of Salonga came up. There was no mention of Salonga in the formulation of the destabilization plan as affirmed by him. But you are bringing this up although you are only cross-examining for Salonga as if his (Lovely's) activities in the United States affected Salonga. (TSN. July 8, 1981, pp. 73-74). Apparently, the respondent judge wanted to put things in proper perspective by limiting the petitioner's alleged "participation" in the bombing mission only to the fact that petitioner's house was used as a "contact point" between Lovely and Taada, which was all that Lovely really stated in his testimony.

However, in the questioned resolution dated December 2, 1981, the respondent judge suddenly included the "activities" of petitioner in the United States as his basis for denying the motion to dismiss: On the activities of Salonga in the United States, the witness, Lovely, in one of his statements declared: 'To the best of my recollection he mentioned of some kind of violent struggle in the Philippines being most likely should reforms be not instituted by President Marcos immediately. It is therefore clear that the prosecution's evidence has established facts and circumstances sufficient for a finding that excludes a Motion to Dismiss by respondent Salonga. The Movement for Free Philippines is undoubtedly a force born on foreign soil it appears to rely on the resources of foreign entities, and is being (sic) on gaining ascendancy in the Philippines with the use of force and for that purpose it has linked itself with even communist organizations to achieve its end. It appears to rely on aliens for its supporters and financiers. The jump from the "contact point" theory to the conclusion of involvement in subversive activities in the United States is not only inexplicable but without foundation. The respondents admit that no evidence was presented directly linking petitioner Salonga to actual acts of violence or terrorism. There is no proof of his direct participation in any overt acts of subversion. However, he is tagged as a leader of subversive organizations for two reasons(1) Because his house was used as a "contactpoint"; and (2) Because "he mentioned some kind of violent struggle in the Philippines being most likely should reforms be not instituted by President Marcos immediately." The "contact point" theory or what the petitioner calls the guilt by visit or guilt by association" theory is too tenuous a basis to conclude that Senator Salonga was a leader or mastermind of the bombing incidents. To indict a person simply because some plotters, masquerading as visitors, have somehow met in his house or office would be to establish a dangerous precedent. The right of citizens to be secure against abuse of governmental processes in criminal prosecutions would be seriously undermined. The testimony of Victor Lovely against petitioner Salonga is full of inconsistencies. Senator Salonga and Atty. Renato Taada could not have whispered to one another because the petitioner is almost totally deaf. Lovely could not have met Senator Salonga at a Manglapus party in Washington, D.C. in 1977 because the petitioner left for the United States only on November, 1978. Senator Salonga denies having known Mr. Lovely in the United States or in the Philippines. He states that he has hundred of visitors from week to week in his residence but cannot recall any Victor Lovely. The presence of Lovely in a group picture taken at Mr. Raul Daza's birthday party in Los Angeles where Senator Salonga was a guest is not proof of conspiracy. As stated by the petitioner, in his many years in the turbulent world of politics, he has posed with all kinds of people in various groups and various places and could not possibly vouch for their conduct. Commenting on the matter, newspaper columnist Teodoro Valencia stated that Filipinos love to pose with important visitors and the picture proves nothing. It is likewise probable that a national figure and former politician of Senator Salonga's stature can expect guests and visitors of all kinds to be visiting his home or office. If a rebel or subversive happens to pose with the petitioner for a group picture at a birthday party abroad, or even visit him with others in his home, the petitioner does not thereby become a rebel or subversive, much less a leader of a subversive group. More credible and stronger evidence is necessary for an indictment. Nonetheless, even if we discount the flaws in Lovely's testimony and dismiss the refutations and arguments of the petitioner, the prosecution evidence is still inadequate to establish a prima facie finding. The prosecution has not come up with even a single iota of evidence which could positively link the petitioner to any proscribed activities of the Movement for Free Philippines or any subversive organization mentioned in the complaint. Lovely had already testified that during the party of former Congressman Raul Daza which was alleged to have been attended by a number of members of the MFP, no political action was taken but only political discussion. Furthermore, the alleged opinion of the petitioner about the likelihood of a violent struggle here in the Philippines if reforms are not instituted, assuming that he really stated the same, is nothing but a legitimate exercise of freedom of thought and expression. No man deserves punishment for his thoughts. Cogitationis poenam memo meretur. And as the late Justice Oliver W. Holmes stated in the case of U.S. v. Schwimmer, 279 U.S. 644, " ... if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought not free thought for those who agree with us but freedom for the thought that we hate." We have adopted the concept that freedom of expression is a "preferred" right and, therefore, stands on a higher level than substantive economic or other liberties. The primacy, the high estate accorded freedom of expression is a fundamental postulate of our constitutional system. (Gonzales v. Commission on Elections, 29 SCRA 835). As explained by Justice Cardozo in Palko v. Connecticut (302 U.S. 319) this must be so because the lessons of history, both political and legal, illustrate that freedom of thought and speech is the indispensable condition of nearly every other form of freedom. Protection is especially mandated for political discussions. This Court is particularly concerned when allegations are made that restraints have been imposed upon mere criticisms of government and public officials. Political discussion is essential to the ascertainment of political truth. It cannot be the basis of criminal indictments. The United States Supreme Court in Noto v. United States (367 U.S. 290) distinguished between the abstract teaching of the moral propriety or even moral necessity for a resort to force and violence and speech which would prepare a group for violent action and steel it to such action. In Watts v. United States (394 U.S. 705), the American court distinguished between criminal threats and constitutionally protected speech. It stated: We do not believe that the kind of political hyperbole indulged in by petitioner fits within that statutory term. For we must interpret the language Congress chose against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. New York Times Co. v. Sullivan (376 U.S. 254). The language of the political arena, like the language used in labor disputed is often vituperative abusive, and inexact. We agree with petitioner that his only offense was a kind of very crude offensive method of stating a political opposition to the President. In the case before us, there is no teaching of the moral propriety of a resort to violence, much less an advocacy of force or a conspiracy to organize the use of force against the duly constituted authorities. The alleged remark about the likelihood of violent struggle unless reforms are instituted is not a threat against the government. Nor is it even the uninhibited, robust, caustic, or unpleasantly sharp attack which is protected by the guarantee of free speech. Parenthetically, the American case of Brandenburg v. Ohio (395 U.S. 444) states that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is

directed to inciting or producing imminent lawless action and is likely to incite or produce such action. The words which petitioner allegedly used according to the best recollections of Mr. Lovely are light years away from such type of proscribed advocacy. Political discussion even among those opposed to the present administration is within the protective clause of freedom of speech and expression. The same cannot be construed as subversive activities per se or as evidence of membership in a subversive organization. Under Presidential Decree No. 885, Section 3, paragraph 6, political discussion will only constitute, prima facie evidence of membership in a subversive organization if such discussion amounts to: (6) Conferring with officers or other members of such association or organization in furtherance of any plan or enterprise thereof. As stated earlier, the prosecution has failed to produce evidence that would establish any link between petitioner and any subversive organization. Even if we lend credence to Lovely's testimony that a political discussion took place at Daza's birthday party, no proof whatsoever was adduced that such discussion was in furtherance of any plan to overthrow the government through illegal means. The alleged opinion that violent struggle is likely unless reforms are instituted by no means shows either advocacy of or incitement to violence or furtherance of the objectives of a subversive organization. Lovely also declared that he had nothing to do with the bombing on August 22, 1980, which was the only bombing incident that occurred after his arrival in Manila on August 20, and before the YMCA explosion on September 6, 1980. (See TSN, pp. 63-63, July 8, 1981). He further testified that: WITNESS: Actually, it was not my intention to do some kind of bombing against the government. My bombing mission was directed against the particular family (referring to the Cabarrus family [TSN, p. 11, July 9, 1981] [Rollo, p. 10]. Such a statement wholly negates any politically motivated or subversive assignment which Lovely was supposed to have been commissioned to perform upon the orders of his co- accused and which was the very reason why they answer charged in the first place. The respondent judge also asked Lovely about the possible relation between Cabarrus and petitioner: COURT: Q. Did you suspect any relation between Cabarrus and Jovito Salonga, why did you implicate Jovito Salonga? A. No, your Honor. I did not try to implicate Salonga. It should be noted that after Lovely's testimony, the prosecution manifested to the court that it was adopting him as a prosecution witness. Therefore, the prosecution became irreversively bound by Lovely's disclaimers on the witness stand, that it was not his intention "to do some kind of bombing against the government" and that he "did not try to implicate Salonga", especially since Lovely is the sole witness adopted by the prosecution who could supposedly establish the link between the petitioner and the bombing incidents. The respondent court should have taken these factors into consideration before concluding that a prima facie case exists against the petitioner. Evidence must not only proceed from the mouth of a credible witness but it must be credible in itself such as the common experience and observation of mankind can approve as probable under the circumstances. (People v. Dayad, 56 SCRA 439). In the case at bar, the prosecution cannot even present a credible version of the petitioner's role in the bombings even if it ignores the subsequent disclaimers of Lovely and without relying on mere affidavits including those made by Lovely during his detention. The resolution dated January 4, 1982 suffers from the same defect. In this resolution, Lovely's previous declarations about the bombings as part of the alleged destabilization plan and the people behind the same were accorded such credibility by the respondent judge as if they had already been proved beyond reasonable doubt. The purpose of a preliminary investigation is to secure the innocent against hasty, malicious and oppressive prosecution, and to protect him from an open and public accusation of crime, from the trouble, expense and anxiety of a public trial, and also to protect the state from useless and expensive trials. (Trocio v. Manta, 118 SCRA 241; citing Hashim v. Boncan, 71 Phil. 216). The right to a preliminary investigation is a statutory grant, and to withhold it would be to transgress constitutional due process. (See People v. Oandasa, 25 SCRA 277) However, in order to satisfy the due process clause it is not enough that the preliminary investigation is conducted in the sense of making sure that a transgressor shall not escape with impunity. A preliminary investigation serves not only the purposes of the State. More important, it is a part of the guarantees of freedom and fair play which are birthrights of all who live in our country. It is, therefore, imperative upon the fiscal or the judge as the case may be, to relieve the accused from the pain of going through a trial once it is ascertained that the evidence is insufficient to sustain a prima facie case or that no probable cause exists to form a sufficient belief as to the guilt of the accused. Although there is no general formula or fixed rule for the determination of probable cause since the same must be decided in the light of the conditions obtaining in given situations and its existence depends to a large degree upon the finding or opinion of the judge conducting the examination, such a finding should not disregard the facts before the judge nor run counter to the clear dictates of reasons (See La Chemise Lacoste, S.A. v. Fernandez, 129 SCRA 391). The judge or fiscal, therefore, should not go on with the prosecution in the hope that some credible evidence might later turn up during trial for this would be a flagrant violation of a basic right which the courts are created to uphold. It bears repeating that the judiciary lives up to its mission by vitalizing and not denigrating constitutional rights. So it has been before. It should continue to be so. Mercado v. Court of First Instance of Rizal, 116 SCRA 93). The Court had already deliberated on this case, a consensus on the Court's judgment had been arrived at, and a draft ponencia was circulating for concurrences and separate opinions, if any, when on January 18, 1985, respondent Judge Rodolfo Ortiz granted the motion of respondent City Fiscal Sergio Apostol to drop the subversion case against the petitioner. Pursuant to instructions of the Minister of Justice, the prosecution restudied its evidence and decided to seek the exclusion of petitioner Jovito Salonga as one of the accused in the information filed under the questioned resolution. We were constrained by this action of the prosecution and the respondent Judge to withdraw the draft ponencia from circulating for concurrences and signatures and to place it once again in the Court's crowded agenda for further deliberations. Insofar as the absence of a prima facie case to warrant the filing of subversion charges is concerned, this decision has been rendered moot and academic by the action of the prosecution. Respondent Fiscal Sergio Apostol correctly points out, however, that he is not precluded from filing new charges for the same acts because the petitioner has not been arraigned and double jeopardy does not apply. in that sense, the case is not completely academic. Recent developments in this case serve to focus attention on a not too well known aspect of the Supreme Court's functions.

The setting aside or declaring void, in proper cases, of intrusions of State authority into areas reserved by the Bill of Rights for the individual as constitutionally protected spheres where even the awesome powers of Government may not enter at will is not the totality of the Court's functions. The Court also has the duty to formulate guiding and controlling constitutional principles, precepts, doctrines, or rules. It has the symbolic function of educating bench and bar on the extent of protection given by constitutional guarantees. In dela Camara v. Enage (41 SCRA 1), the petitioner who questioned a P1,195,200.00 bail bond as excessive and, therefore, constitutionally void, escaped from the provincial jail while his petition was pending. The petition became moot because of his escape but we nonetheless rendered a decision and stated: The fact that the case is moot and academic should not preclude this Tribunal from setting forth in language clear and unmistakable, the obligation of fidelity on the part of lower court judges to the unequivocal command of the Constitution that excessive bail shall not be required. In Gonzales v. Marcos (65 SCRA 624) whether or not the Cultural Center of the Philippines could validly be created through an executive order was mooted by Presidential Decree No. 15, the Center's new charter pursuant to the President's legislative powers under martial law. Stan, this Court discussed the constitutional mandate on the preservation and development of Filipino culture for national Identity. (Article XV, Section 9, Paragraph 2 of the Constitution). In the habeas corpus case of Aquino, Jr., v. Enrile, 59 SCRA 183), during the pendency of the case, 26 petitioners were released from custody and one withdrew his petition. The sole remaining petitioner was facing charges of murder, subversion, and illegal possession of firearms. The fact that the petition was moot and academic did not prevent this Court in the exercise of its symbolic function from promulgating one of the most voluminous decisions ever printed in the Reports. In this case, the respondents agree with our earlier finding that the prosecution evidence miserably fails to establish a prima facie case against the petitioner, either as a co-conspirator of a destabilization plan to overthrow the government or as an officer or leader of any subversive organization. They have taken the initiative of dropping the charges against the petitioner. We reiterate the rule, however, that this Court will not validate the filing of an information based on the kind of evidence against the petitioner found in the records. WHEREFORE, the petition is DISMISSED for having become moot and academic. SO ORDERED. CRISTETA CHUA-BURCE, petitioner, vs. COURT OF APPEALS AND PEOPLE OF THE PHILIPPINES, respondents. DECISION QUISUMBING, J.: Subject of the present appeal by certiorari is the decision dated November 27, 1992 of the Court of Appeals in CA-G.R. CR No. 12037, (a) affirming in toto the trial courts decision finding petitioner guilty of estafa, and (b) denying her Motion for Reconsideration in a Resolution dated March 25, 1993. The Regional Trial Court, Calapan, Oriental Mindoro, Branch 40, rendered a joint decision finding petitioner guilty of estafa under Article 315, par. 1 (b) of the Revised Penal Code, in Criminal Case No. C-2313, and likewise found petitioner liable for the amount of P150,000.00 in Civil Case No. R-3733. Only the criminal case is before us for review. h Y The uncontroverted facts, as found by the Court of Appeals, are as follows: On August 16, 1985, Ramon Rocamora, the Manager (of Metropolitan Bank and Trust Company, Calapan Branch, Oriental Mindoro) requested Fructuoso Peaflor, Assistant Cashier, to conduct a physical bundle count of the cash inside the vault, which should total P4,000,000.00, more or less. During this initial cash count, they discovered a shortage of fifteen bundles of One Hundred Pesos denominated bills totalling P150,000.00. The One Hundred Peso bills actually counted was P3,850,000.00 as against the balance of P4,000,000.00 in the Cash in Vault (CIV) Summary Sheet, or a total shortage of P150,000.00. The next day, to determine if there was actually a shortage, a re-verification of the records and documents of the transactions in the bank was conducted. There was still a shortage of P150,000.00. The bank initiated investigations totalling four (4) in all. The first was by Ramon Rocamora, the Manager. The second was by the banks internal auditors headed by Antonio Batungbakal. Then, the banks Department of Internal Affairs conducted an independent investigation. Thereafter, the National Bureau of Investigation (NBI) came in to investigate. All of these investigations concluded that there was a shortage of P150,000.00, and the person primarily responsible was the banks Cash Custodian, Cristeta Chua-Burce, the herein accused. Jksm On November 4, 1985, unable to satisfactorily explain the shortage of P150,000.00, the accuseds service with the bank was terminated. To recover the missing amount, Metropolitan Bank and Trust Company (Metrobank) filed a Civil Case for Sum of Money and Damages with Preliminary Attachment and Garnishment docketed as Civil Case No. R-3733 against petitioner and her husband, Antonio Burce. Esm Prior to the filing of the Answer, the following Information for Estafa was filed against petitioner: "That on or about the 16th day of August 1985, and for a period prior and subsequent thereto, the above-named accused, with unfaithfulness or abuse of confidence, and with intent to defraud, did then and there wilfully, unlawfully, and feloniously, in her capacity as Cash Custodian of the Metrobank, Calapan Branch, take from the Banks Vault the amount of ONE HUNDRED FIFTY THOUSAND (P150,000.00) PESOS, which is under her direct custody and/or accountability, misappropriate and convert to her own personal use and benefit, without the knowledge and consent of the offended party, despite repeated demands for her to account and/or return the said amount, she refused and failed, and still fails and refuses to the damage and prejudice of the Metrobank, Calapan Branch, in the aforementioned amount of ONE HUNDRED FIFTY THOUSAND (P150,000.00) PESOS. Contrary to Article 315 of the Revised Penal Code. [1] Calapan, Oriental Mindoro, November 27, 1985." Both civil and criminal cases were raffled to the same branch of the Regional Trial Court of Calapan, Oriental Mindoro, Branch 40. Esmsc Thereafter, petitioner moved for the suspension of the criminal case on the ground of the existence of a prejudicial question, viz., that the [2] resolution of the civil case was determinative of her guilt or innocence in the criminal case. The trial court, over the vehement opposition of the [3] private and public prosecutors, granted the motion and suspended the trial of the criminal case. On petition for certiorari to the Court of Appeals, [4] the appellate court ruled that there was no prejudicial question. [5] Petitioner was arraigned and assisted by counsel de parte, entered a plea of not guilty. While the trial of the criminal case was suspended, the trial of the civil case continued. At the time of arraignment, the civil case was already submitted for decision. Hence, during the pre-trial conference [6] of the criminal case, the parties agreed to adopt their respective evidence in the civil case as their respective evidence in the criminal case. The

trial court ordered the parties to submit their written agreement pursuant to Section 4 of Rule 118 of the Rules of Court. Thereafter, petitioner, [8] duly assisted by her counsel, with the conforme of the public prosecutor, entered into the following pre-trial agreement: "COMES NOW, the accused, assisted by counsel, and unto this Honorable Court most respectfully submits this Pre-Trial agreement: 1. That the evidence already adduced by the plaintiff in Civil Case No. R-3733 will be adopted by the prosecution as its evidence in Criminal Case No. C-2313; 2. That the evidence to be adduced by the defendant in Civil Case No. R-3733 will also be adopted as evidence for the defense in Criminal Case No. C-2313. WHEREFORE, premises considered, it is prayed that the foregoing pre-trial agreement be admitted in compliance with the Order of this Court dated April 19, 1988. RESPECTFULLY SUBMITTED. Calapan, Oriental Mindoro, August 20, 1990. CRISTETA CHUA-BURCE (sgd.) Accused Assisted By: RODRIGO C. DIMAYACYAC (sgd.) Defense Counsel San Vicente, Calapan Oriental Mindoro IBP O.R. No. 292575 May 11, 1990 Quezon City With Conformity: EMMANUEL S. PANALIGAN (sgd.) Prosecuting Fiscal [9] Pursuant to the pre-trial agreement, the public prosecutor filed a Motion to Adopt Evidence. Both the pre-trial agreement and said Motion were [10] granted by the trial court. [11] On March 18, 1991, the trial court rendered a consolidated decision finding petitioner (a) guilty of estafa under Article 315 (1) (b) of the Revised Penal Code in the criminal case, and (b) liable for the amount of P150,000.00 in the civil case. The dispositive portion of decision provides - In Criminal Case No. C-2313 WHEREFORE, the Court hereby finds the accused Cristeta Chua-Burce guilty beyond reasonable doubt of the crime of Estafa, punishable under Art. 315, paragraph 1 (b) of the Revised Penal Code, which imposes a penalty of prision correccional in its maximum period to prision mayor in its minimum period but considering that the amount involved exceeds P22,000.00, the penalty provided for shall be imposed in its maximum period, adding one year for each additional P10,000.00, but the total amount not to exceed twenty years. Esmmis Applying the Indeterminate Sentence Law, the imposable penalty shall be one degree lower as minimum of arresto mayor with a penalty range of One Month and One Day to Six Months, as minimum to prision mayor in its maximum period, as maximum, or a penalty of Six years to Twelve Years. Considering the mitigating circumstance of voluntary surrender, the court hereby imposes upon the accused to suffer imprisonment from SIX (6) MONTHS of arresto mayor in its maximum period, as minimum, to EIGHT (8) YEARS of prision mayor, in its minimum period, as maximum. The civil liability shall not be imposed in this case due to a separate civil action. Esmso - In Civil Case No. R-3733 WHEREFORE, judgment is hereby rendered in favor of the plaintiff Metrobank, ordering defendants Cristeta Chua-Burce and Antonio Burce, spouses, to pay Metrobank the amount of P150,000.00 representing the amount misappropriated with the legal rate of six percent (6%) per annum from August 15, 1985 until fully paid and to pay the costs of suit. SO ORDERED." Petitioner seasonably appealed her conviction in the criminal case to the Court of Appeals. Petitioner filed a separate appeal in the civil case. [12] In a decision dated November 27, 1992, the Court of Appeals affirmed the trial courts decision in toto. Petitioners Motion for Reconsideration [13] was likewise denied. Hence, the recourse to this Court. Msesm [14] Petitioner raises the following issues: 1. IS THE RESULT OF POLYGRAPH EXAMINATION ADMISSIBLE IN EVIDENCE? 2. CAN THE PRESIDING JUDGE OF THE REGIONAL TRIAL COURT ADMIT IN EVIDENCE THE EVIDENCE WHICH WAS ALREADY DENIED ADMISSION IN THE ORDER OF THE FORMER JUDGE OF THE SAME COURT? 3. DOES PRIMA FACIE PRESUMPTION OF MISAPPROPRIATION OR CONVERSION EXISTS (sic) AGAINST THE PETITIONER WHEN THERE WERE OTHER PERSONS WHO HAD DIRECT AND GREATER ACCESS IN THE CASH-IN-VAULT? 4. IS RULE 111 SECTION 2 (a) OF THE REVISED RULES ON CRIMINAL PROCEDURE APPLICABLE IN (sic)THE CASE AT BAR? 5. WAS THERE A VALID PROCEEDING WHEN THE FISCAL WAS NOT ACTUALLY PRESENT AND DID NOT CONTROL AND SUPERVISE THE PROSECUTION OF THE CASE? Exsm In gist, (1) petitioner contends that the trial court erred in taking into account the results of the polygraph examination as circumstantial evidence of guilt considering the inherent unreliability of such tests, and the fact that the previous trial judge who handled the case already ruled such evidence as inadmissible; (2) petitioner insists that there can be no presumption of misappropriation when there were other persons who had access to the cash in vault; and (3) petitioner questions the validity of the trial of criminal case considering that the pre-trial agreement dispensed with the intervention of the public prosecutor in a full-blown trial of the criminal case. Kyle The Office of the Solicitor General, for the State, contends that the guilt of petitioner has been proven beyond reasonable doubt by the following facts which were duly established during trial - first, petitioner was the cash custodian who was directly responsible and accountable for the cash-

[7]

in-vault. Second, the other persons who had access to the vault facilities never used the duplicate keys to open the safety deposit boxes and the cash safe from where the P100.00 bill denominations were located. In fact, the duplicate keys were offered in evidence still in their sealed envelopes. Third, alterations and superimposition on the cash-in-vault summary sheet were made by petitioner to cover the cash shortage. Lastly, there was a valid joint trial of the civil and criminal cases. The crucial issues, in our mind, are (1) whether there was a valid trial of the criminal case, and (2) whether the elements of the crime of estafa under Article 315 (1) (b) of the Revised Penal Code were duly proven beyond reasonable doubt. Kycalr First, petitioner assails the validity of the proceedings in the trial court on the ground that the public prosecutor did not intervene and present any evidence during the trial of the criminal case. The records clearly show that the pre-trial agreement was prepared by petitioner with the conforme of the public prosecutor. Thereafter, petitioner filed a consolidatedmemorandum for both civil and criminal cases. Section 5 of Rule [15] 110 requires that all criminal actions shall be prosecuted under the direction and control of the public prosecutor. The rationale behind the rule [16] is "to prevent malicious or unfounded prosecutions by private persons." The records show that the public prosecutor actively participated in the prosecution of the criminal case from its inception. It was during pre-trial conference when the parties agreed to adopt their respective evidence in [17] the civil case to the criminal case. This is allowed under Section 2 (e) of Rule 118 of the Rules of Court which provides that during pre-trial conference, the parties shall consider "such other matters as will promote a fair and expeditious trial." The parties, in compliance with Section 4 of [18] Rule 118, reduced to writing such agreement. Petitioner, her counsel, and the public prosecutor signed the agreement. Petitioner is bound by [19] the pre-trial agreement, and she cannot now belatedly disavow its contents. [20] On the second issue. Petitioner was charged with the crime of estafa under Article 315 (1) (b) of the Revised Penal Code. In general, the elements of estafa are: (1) that the accused defrauded another (a) by abuse of confidence or (b) by means of deceit; and (2) that damage or [21] prejudice capable of pecuniary estimation is caused to the offended party or third person. Deceit is not an essential requisite of estafa with [22] abuse of confidence, since the breach of confidence takes the place of the fraud or deceit, which is a usual element in the other estafas. [23] The elements of estafa through conversion or misappropriation under Art. 315 (1) (b) of the Revised Penal Code are: (1) that personal property is received in trust, on commission, for administration or under any other circumstance involving the duty to make delivery of or to return the same, even though the obligation is guaranteed by a bond; (2) that there is conversion or diversion of such property by the person who has so received it or a denial on his part that he received it; (3) that such conversion, diversion or denial is to the injury of another and (4) that there be demand for the return of the property. Have the foregoing elements been met in the case at bar? We find the first element absent. When the money, goods, or any other personal property is received by the offender from the offended party (1) in trust or (2) on commission or (3) for administration, the offender acquires both [24] material or physical possession and juridical possession of the thing received. Juridical possession means a possession which gives the transferee [25] a right over the thing which the transferee may set up even against the owner. In this case, petitioner was a cash custodian who was primarily responsible for the cash-in-vault. Her possession of the cash belonging to the bank is akin to that of a bank teller, both being mere bank employees. Calrky [26] In People v. Locson, the receiving teller of a bank misappropriated the money received by him for the bank. He was found liable for qualified theft on the theory that the possession of the teller is the possession of the bank. We explained in Locson that "The money was in the possession of the defendant as receiving teller of the bank, and the possession of the defendant was the possession of the bank. When the defendant, with grave abuse of confidence, removed the money and appropriated it to his own use without the consent of the bank, there was the taking orapoderamiento contemplated in the definition of the crime of [27] theft." [28] In the subsequent case of Guzman v. Court of Appeals, a travelling sales agent misappropriated or failed to return to his principal the proceeds of things or goods he was commissioned or authorized to sell. He was, however, found liable for estafa under Article 315 (1) (b) of the Revised Penal Code, and not qualified theft. In the Guzman case, we explained the distinction between possession of a bank teller and an agent for purposes of determining criminal liability "The case cited by the Court of Appeals (People vs. Locson, 57 Phil. 325), in support of its theory that appellant only had the material possession of the merchandise he was selling for his principal, or their proceeds, is not in point. In said case, the receiving teller of a bank who misappropriated money received by him for the bank, was held guilty of qualified theft on the theory that the possession of the teller is the possession of the bank. There is an essential distinction between the possession by a receiving teller of funds received from third persons paid to the bank, and an agent who receives the proceeds of sales of merchandise delivered to him in agency by his principal. In the former case, payment by third persons to the teller is payment to the bank itself; the teller is a mere custodian or keeper of the funds received, and has no independent right or title to retain or possess the same as against the bank. An agent, on the other hand, can even assert, as against his own principal, an independent, autonomous, right to retain money or goods received in consequence of the agency; as when the principal fails to reimburse him for advances he has made, and indemnify him for damages suffered without his fault (Article 1915, [N]ew Civil Code; Article 1730, old)." Mesm Petitioner herein being a mere cash custodian had no juridical possession over the missing funds. Hence, the element of juridical possession being [29] absent, petitioner cannot be convicted of the crime of estafa under Article 315, No. 1 (b) of the Revised Penal Code. WHEREFORE, the petition is hereby granted and petitioner is ACQUITTED of the crime of estafa under Article 315 (1) (b) of the Revised Penal Code. Petitioner is ordered RELEASED from custody unless she is being held for some other lawful cause. No costs. Slx SO ORDERED. PEOPLE OF THE PHILIPPINES, petitioner, vs. COURT OF APPEALS and ELADIO C. TANGAN, respondents. [G.R. No. 105830. February 23, 2001] ELADIO C. TANGAN, petitioner, vs. PEOPLE OF THE PHILIPPINES and COURT OF APPEALS, respondents. DECISION YNARES-SANTIAGO, J.:

At around 11:30 p.m. of December 1, 1984, Navy Captain Eladio C. Tangan was driving alone on Roxas Boulevard heading south. He had just come from Buendia Avenue on an intelligence operation. At the same time, Generoso Miranda, a 29-year old optometrist, was driving his car in the same direction along Roxas Boulevard with his uncle, Manuel Miranda, after coming from the Ramada Hotel. Generoso was moving ahead of Tangan. Suddenly, firecrackers were thrown in Generosos way, causing him to swerve to the right and cut Tangans path. Tangan blew his horn several times. Generoso slowed down to let Tangan pass. Tangan accelerated and overtook Generoso, but when he got in front, Tangan reduced speed. Generoso tried four or five times to overtake on the right lane but Tangan kept blocking his lane. As he approached Airport Road, Tangan slowed down to make a U-turn. Generoso passed him, pulled over and got out of the car with his uncle. Tangan also stopped his car and got out. As the Mirandas got near Tangans car, Generoso loudly retorted, Putang ina mo, bakit mo ginigitgit ang sasakyan ko? Generoso and Tangan then exchanged expletives. Tangan pointed his hand to Generoso and the latter slapped it, saying, Huwag mo akong dinuduro! Sino ka ba, ano ba ang pinagmamalaki mo? Tangan countered, Ikaw, ano ang gusto mo? With this, Tangan went to his car and got his .38 caliber handgun on the front seat. The subsequent events per account of the parties respective witnesses were conflicting: According to the prosecution witnesses, particularly, Mary Ann Borromeo, Rosalia Cruz and Manuel Miranda, the accused pointed his gun at Generoso Miranda and when Manuel Miranda tried to intervene, the accused pointed his gun at Manuel Miranda, and after that the accused pointed again the gun to Generoso Miranda, the accused shot Generoso Miranda at a distance of about a meter but because the arm of the accused was extended, the muzzle of the gun reached to about more or less one foot away from the body of Generoso Miranda. The shot hit the stomach of Generoso Miranda causing the latter to fall and while still conscious, Generoso Miranda told Manuel Miranda, his uncle, to get the gun. Manuel Miranda grappled for the possession of the gun and during their grappling, Rosalia Cruz intervened and took hold of the gun and after Rosalia Cruz has taken hold of the gun, a man wearing a red T-shirt took the gun from her. The man in T-shirt was chased by Manuel Miranda who was able to get the gun where the man in red T-shirt placed it. On the other hand, the defense, particularly the accused and his witness by the name of Nelson Pante claimed that after the gun was taken by the accused from inside his car, the Mirandas started to grapple for possession of the gun and during the grappling, and while the two Mirandas were trying to wrest away the gun from the accused, they fell down at the back of the car of the accused. According to the accused, he lost the possession of the gun after falling at the back of his car and as soon as they hit the ground, the gun fell, and it exploded hitting Generoso [1] Miranda. After the gun went off, Tangan ran away. Meanwhile, Generoso lay on the ground bloodied. His uncle, Manuel, looked for the gun and ran after Tangan, joining the mob that had already pursued him. Tangan found a policeman who allowed him to enter his patrol car. Manuel arrived and told the policeman that Tangan had just shot his nephew. Then he went back to where Generoso lay and there found two ladies, later identified as Mary Ann Borromeo and Rosalina Cruz, helping his nephew board a taxi. Manuel suggested that Generoso be brought to the hospital in his car. He was rushed to the Philippine General Hospital but he expired on the way. [2] Tangan was charged with the crime of murder with the use of an unlicensed firearm. After a reinvestigation, however, the information was [3] [4] amended to homicide with the use of a licensed firearm, and he was separately charged with illegal possession of unlicensed firearm. On arraignment, Tangan entered a plea of not guilty in the homicide case, but moved to quash the information for illegal possession of unlicensed [5] firearm on various grounds. The motion to quash was denied, whereupon he filed a petition for certiorari with this Court. On November 5, 1987, [6] said petition was dismissed and the joint trial of the two cases was ordered. During the trial, the prosecution and the defense stipulated on the following: that the amount of P126,000.00 was incurred for the funeral [7] and burial expenses of the victim; that P74,625.00 was incurred for attorneys fees; and that the heirs of Generoso suffered moral damages, the amount of which is left for the courts to determine. After trial, the lower court acquitted Tangan of illegal possession of firearm, but convicted him of homicide. The privileged mitigating circumstance of incomplete self-defense and the ordinary mitigating circumstances of sufficient provocation on the part of the offended party and of passion and obfuscation were appreciated in his favor; consequently, the trial court ordered him to suffer an indeterminate penalty of two (2) months of arresto mayor, as minimum, to two (2) years and four (4) months of prision correccional, as [8] [9] maximum, and to indemnify the heirs of the victim. Tangan was released from detention after the promulgation of judgment and was allowed bail in the homicide case. Private complainants, the heirs of Generoso Miranda, filed a petition for review with this Court, docketed as G.R. No. 102677, challenging the civil aspect of the court a quos decision, but the same was dismissed for being premature. On the other hand, Tangan appealed to the Court of [10] Appeals, which affirmed the judgment of the trial court but increased the award of civil indemnity to P50,000.00. His subsequent motion for [11] reconsideration and a motion to cite the Solicitor General in contempt were denied by the Court of Appeals. The Office of the Solicitor General, on behalf of the prosecution, alleging grave abuse of discretion, filed a petition for certiorari under Rule 65, docketed as G.R. No. 103613, naming as respondents the Court of Appeals and Tangan, where it prayed that the appellate courts judgment be [12] modified by convicting accused-appellant of homicide without appreciating in his favor any mitigating circumstance. Subsequently, the Office of the Solicitor General, this time acting for public respondent Court of Appeals, filed a motion for extension to file comment to its own petition [13] [14] for certiorari. Discovering its glaring error, the Office of the Solicitor General later withdrew its motion for extension of time. Tangan filed a [15] Reply asking that the case be submitted for decision. [16] Meanwhile, Tangan filed a separate petition for review under Rule 45, docketed as G.R. No. 105830. Since the petition for certiorari filed [17] by the Solicitor General remained unresolved, the two cases were consolidated. The Office of the Solicitor General filed a manifestation in G.R. [18] No. 105830, asking that it be excused from filing a comment to Tangans petition for review, in order to avoid taking contradictory positions. [19] In the recent case of People v. Velasco and Galvez, we held that the prosecution cannot avail of the remedies of special civil action on certiorari, petition for review on certiorari, or appeal in criminal cases. Previous to that, we categorically ruled that the writ of certiorari cannot [20] be used by the State in a criminal case to correct a lower courts factual findings or evaluation of the evidence. Rule 117, Section 7, of the Revised Rules of Criminal Procedure, is clear: Former conviction or acquittal; double jeopardy. - When an accused has been convicted or acquitted, or the case against him dismissed or otherwise terminated without his express consent by a court of competent jurisdiction, upon a valid complaint or information or other formal charge sufficient in form and substance to sustain a conviction and after the accused had pleaded to the charge, the conviction or acquittal of the accused or the dismissal of the case shall be a bar to another prosecution for the offense charged, or for any attempt to commit the same or frustration thereof, or for any offense which necessarily includes or is necessarily included in the offense charged in the former complaint or information.

However, the conviction of the accused shall not be a bar to another prosecution for an offense which necessarily includes the offense charged in the former complaint or information under any of the following instances: (a) the graver offense developed due to supervening facts arising from the same act or omission constituting the former charge; (b) the facts constituting the graver charge became known or were discovered only after a pleas was entered in the former complaint or information; or (c) the plea of guilty to the lesser offense was made without the consent of the fiscal and of the offended party, except as provided in section 1(f) of Rule 116. In any of the foregoing cases, where the accused satisfies or serves in whole or in part the judgment, he shall be credited with the same in the event of conviction for the graver offense. Based on the foregoing, the Solicitor Generals petition for certiorari under Rule 65, praying that no mitigating circumstance be appreciated in favor of accused-appellant and that the penalty imposed on him be correspondingly increased, constitutes a violation of Tangans right against double jeopardy and should be dismissed. We now come to the petition for review filed by Tangan. It is noteworthy that during the trial, petitioner Tangan did not invoke self-defense [21] but claimed that Generoso was accidentally shot. As such, the burden of proving self-defense, which normally would have belonged to Tangan, [22] did not come into play. Although Tangan must prove his defense of accidental firing by clear and convincing evidence, the burden of proving the commission of the crime remained in the prosecution. Both the trial court and the Court of Appeals appreciated in favor of Tangan the privileged mitigating circumstance of incomplete self-defense under Article 13 (1), in relation to Article 11 (1), of the Revised Penal Code, to wit: ARTICLE 11. Justifying circumstances. - The following do not incur any criminal liability: 1. Anyone who acts in defense of his person or rights, provided that the following circumstances concur: First. Unlawful aggression. Second. Reasonable necessity of the means employed to prevent or repel it. Third. Lack of sufficient provocation on the part of the person defending himself. xxx xxx xxx ARTICLE 13. Mitigating Circumstances. The following are mitigating circumstances: 1. Those mentioned in the preceding Chapter, when all the requisites necessary to justify the act or to exempt from criminal liability in the respective cases are not attendant. Incomplete self-defense is not considered as a justifying act, but merely a mitigating circumstance; hence, the burden of proving the crime [23] charged in the information is not shifted to the accused. In order that it may be successfully appreciated, however, it is necessary that a majority [24] of the requirements of self-defense be present, particularly the requisite of unlawful aggression on the part of the victim. Unlawful aggression by itself or in combination with either of the other two requisite suffices to establish incomplete self-defense. Absent the unlawful aggression, there [25] can never be self-defense, complete or incomplete, because if there is nothing to prevent or repel, the other two requisites of defense will have [26] no basis. There is no question that the bullet which hit the victim was fired from the caliber. 38, which was issued to Tangan by the Philippine Navy. The cause of death was severe hemorrhage secondary to gunshot wound of the abdomen, caused by the bullet fired from a gun of the said caliber. The prosecution claimed that Tangan shot the victim point-blank in the stomach at a distance of about one foot. On the other hand, Tangan alleged that when he grappled with Generoso and Manuel Miranda for possession of the gun, it fell to the ground and accidentally fired, hitting the victim. When the testimonies of witnesses in open court are conflicting in substantial points, the calibration of the records on appeal becomes difficult. It is the word of one party against the word of the other. The reviewing tribunal relies on the cold and mute pages of the records, unlike the trial court which had the unique opportunity of observing first-hand that elusive and incommunicable evidence of the witness deportment on [27] the stand while testifying. The trial courts assessments of the credibility of witnesses is accorded great weight and respect on appeal and is [28] binding on this Court, particularly when it has not been adequately demonstrated that significant facts and circumstances were shown to have [29] been overlooked or disregarded by the court below which, if considered, might affect the outcome hereof. The rationale for this has been adequately explained in that, The trial court has the advantage of observing the witnesses through the different indicators of truthfulness or falsehood, such as the angry flush of an insisted assertion or the sudden pallor of a discovered lie or the tremulous mutter of a reluctant answer or the forthright tone of a ready reply; or the furtive glance, the blush of conscious shame, the hesitation, the sincere or the flippant or sneering tone, the heat, the calmness, the yawn, [30] the sigh, the candor or lack of it, the scant or full realization of the solemnity of an oath, and carriage and mien. Equally, when a person fabricates a story, he usually adopts a simple account because a complex one might lead to entanglement from which he may find it hard to extricate himself. Along the same line, the experience of the courts and the general observations of humanity teach us that the natural limitations of our inventive faculties are such that if a witness delivers in court a false narrative containing numerous details, he is almost certain to fall into fatal inconsistencies, to make statements which can be readily refuted, or to expose in his demeanor the falsity of his [31] message. Aside from this, it is not also unusual that the witness may have been coached before he is called to the stand to testify. Somewhere along the painstaking review of the evidence on record, one version rings the semblance of truth, not necessarily because it is the absolute truth, but simply because it is the best approximation of the truth based on the declarations of witnesses as corroborated by material evidence. Perforce, the other version must be rejected. Truth and falsehood, it has been well said, are not always opposed to each other like black [32] and white, but oftentimes, and by design, are made to resemble each other so as to be hardly distinguishable. Thus, after analyzing the conflicting testimonies of the witnesses, the trial court found that: When the accused took the gun from his car and when he tried to get out of the car and the two Mirandas saw the accused already holding the gun, they started to grapple for the possession of the gun that it went off hitting Generoso Miranda at the stomach. The court believes that contrary to the testimony of the accused, he never lost possession of the gun for if he did and when the gun fell to the ground, it will not first [33] explode or if it did, somebody is not holding the same, the trajectory of the bullet would not be perpendicular or horizontal. The Court of Appeals agreed -

The finding of the lower court that Generoso Miranda III was shot while the accused and the Mirandas were grappling for the possession of the gun immediately after the accused had taken his gun from inside his car and before the three allegedly fell to the ground behind the car of the accused is borne out by the record. The court also agrees with the court below that it was the accused-appellant who shot and killed Generoso Miranda III. If the accused-appellant did not shoot Generoso III during the scuffle, he would have claimed accidental killing by alleging that his gun exploded during the scuffle instead of falsely testifying that he and the Mirandas fell to the ground behind his car and the gun exploded in the possession of Manuel Miranda. The theory of the prosecution that the shooting took place while the three were grappling for the possession of the gun beside the car of appellant is completely in harmony with the findings and testimony of Dr. Ibarrola regarding the relative position of the three and the precarious nearness of the victim when accused-appellant pulled the trigger of his gun. Dr. Ibarrola explained that the gun was about two (2) inches from the entrance wound and that its position was almost perpendicular when it was fired. It was in fact the closeness of the Mirandas vis-vis appellant during the scuffle for the gun that the accused-appellant was compelled to pull the trigger in answer to the instinct of self[34] preservation. No convincing reason appears for the Court to depart from these factual findings, the same being ably supported by the evidence on record. In violent deaths caused by gunshot wounds, the medical report or the autopsy on the cadaver of the victim must as much as possible narrate the observations on the wounds examined. It is material in determining the truthfulness of the events narrated by the witnesses presented. It is not enough that the witness looks credible and assumes that he indeed witnessed the criminal act. His narration must be substantiated by the physical evidence available to the court. The medical examiner testified that the distance between the muzzle of the gun and the target was about 2 inches but definitely not more than 3 inches. Based on the point of exit and the trajectory transit of the wound, the victim and the alleged assailant were facing each other when [35] the shot was made and the position of the gun was almost perpendicular when fired. These findings disprove Tangans claim of accidental shooting. A revolver is not prone to accidental firing because of the nature of its mechanism, unless it was already first cocked and pressure was [36] exerted on the trigger. If it were uncocked, then considerable pressure had to be applied on the trigger to fire the revolver. Having established that the shooting was not accidental, the next issue to be resolved is whether Tangan acted in incomplete selfdefense. The element of unlawful aggression in self-defense must not come from the person defending himself but from the victim. [37] A mere threatening or intimidating attitude is not sufficient. Likewise, the exchange of insulting words and invectives between Tangan and Generoso Miranda, no matter how objectionable, could not be considered as unlawful aggression, except when coupled with physical [38] assault. There being no lawful aggression on the part of either antagonists, the claim of incomplete self-defense falls. Tangan undoubtedly had possession of the gun, but the Mirandas tried to wrestle the gun from him. It may be said that the former had no intention of killing the victim but simply to retain possession of his gun. However, the fact that the victim subsequently died as a result of the gunshot wound, though the shooter may not have the intention to kill, does not absolve him from culpability. Having caused the fatal wound, Tangan is responsible for all the consequences of his felonious act. He brought out the gun, wrestled with the Mirandas but anticipating that the gun may be taken from him, he fired and fled. The third requisite of lack of sufficient provocation on the part of the person defending himself is not supported by evidence. By repeatedly blocking the path of the Mirandas for almost five times, Tangan was in effect the one who provoked the former. The repeated blowing of horns, assuming it was done by Generoso, may be irritating to an impatient driver but it certainly could not be considered as creating so powerful an inducement as to incite provocation for the other party to act violently. The appreciation of the ordinary mitigating circumstances of sufficient provocation and passion and obfuscation under Article 13, paragraphs [39] 4 and 6, have no factual basis. Sufficient provocation as a requisite of incomplete self-defense is different from sufficient provocation as a mitigating circumstance. As an element of self-defense, it pertains to its absence on the part of the person defending himself; while as a mitigating circumstance, it pertains to its presence on the part of the offended party. Besides, only one mitigating circumstance can arise out of one and the [40] same act. Assuming for the sake of argument that the blowing of horns, cutting of lanes or overtaking can be considered as acts of provocation, the same were not sufficient. The word sufficient means adequate to excite a person to commit a wrong and must accordingly be proportionate [41] to its gravity. Moreover, Generosos act of asking for an explanation from Tangan was not sufficient provocation for him to claim that he was [42] provoked to kill or injure Generoso. For the mitigating circumstance of passion and obfuscation to be appreciated, it is required that (1) there be an act, both unlawful and sufficient to produce such a condition of mind; and (2) said act which produced the obfuscation was not far removed from the [43] commission of the crime by a considerable length of time, during which the perpetrator might recover his normal equanimity. In the case at bar, Tangan could not have possibly acted upon an impulse for there was no sudden and unexpected occurrence which wuld have created such condition in his mind to shoot the victim. Assuming that his path was suddenly blocked by Generoso Miranda due to the firecrackers, it can no longer be treated as a startling occurrence, precisely because he had already passed them and was already the one blocking their path. Tangans acts were done in the spirit of revenge and lawlessness, for which no mitigating circumstance of passion or obfuscation can arise. [44] With respect to the penalty, under the laws then existing, homicide was penalized with reclusion temporal, but if the homicide was [45] committed with the use of an unlicensed firearm, the penalty shall be death. The death penalty, however, cannot be imposed on Tangan because in the meantime, the 1987 Constitution proscribed the imposition of death penalty; and although it was later restored in 1994, the retroactive application of the death penalty is unfavorable to him. Previously, the accused may be prosecuted for two crimes: (1) homicide or [46] murder under the Revised Penal Code and (2) illegal possession of firearm in its aggravated form under P.D. 1866. [47] P.D. 1866 was amended by R.A. No. 8294, which provides that if an unlicensed firearm is used in murder or homicide, such use of [48] unlicensed firearm shall be appreciated as an aggravating circumstance and no longer considered as a separate offense, which means that only one offense shall be punished murder or homicide. However, this law cannot apply retroactively because it will result in the imposition on [49] Tangan of the maximum period of the penalty. Moreover, under Rule 110, Section 8 of the Revised Rules of Criminal Procedure, the aggravating circumstance must be alleged in the information. Being favorable, this new rule can be given retroactive effect as they are applicable to pending [50] cases. In any case, Tangan was acquitted of the illegal possession case. Consequently, Tangan should be sentenced to suffer the penalty of reclusion temporal. Pursuant to Article 64 of the Revised Penal Code, if the prescribed penalty is composed of three periods, and there is neither mitigating nor aggravating circumstance, the medium period shall be applied. Applying the Indeterminate Sentence law, the maximum of the indeterminate penalty shall be that which, in view of the attendant

circumstances, may be properly imposed, which in this case is reclusion temporal medium with an imprisonment range of from fourteen (14) years, eight (8) months and one (1) day to seventeen (17) years and four (4) months. The minimum of the indeterminate sentence shall be the next lower [51] degree which is prision mayor with a range of from six (6) years and one (1) day to twelve (12) years. Hence, petitioner Tangan is sentenced to an indeterminate penalty of six (6) years and one (1) day of prision mayor, as minimum, to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal, as maximum. [52] The death indemnity of P30,000.00 was correctly increased by the appellate court to P50,000.00 in line with jurisprudence. Moral damages [53] are awarded in criminal cases involving injuries if supported by evidence on record, but the stipulation of the parties in this case substitutes for the necessity of evidence in support thereof. Though not awarded below, the victims heirs are entitled to moral damages in the amount of [54] P50,000.00 which is considered reasonable considering the pain and anguish brought by his death. WHEREFORE, the petition in G.R. No. 103613 is DISMISSED. The appealed decision subject of G.R. No. 105830 is AFFIRMED with the following MODIFICATIONS: (1) Tangan is sentenced to suffer an indeterminate penalty of six (6) years and one (1) day of prision mayor, as minimum, to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal, as maximum, with all the accessory penalties. (2) Tangan is ordered to pay the victims heirs P50,000.00 as civil indemnity, P42,000.00 as funeral and burial expenses, P5,000.00 as attorneys fees, and P50,000.00 as moral damages. SO ORDERED. G.R. No. L-53373 June 30, 1987 MARIO FL. CRESPO, petitioner, vs. HON. LEODEGARIO L. MOGUL, Presiding Judge, CIRCUIT CRIMINAL COURT OF LUCENA CITY, 9th Judicial Dist., THE PEOPLE OF THE PHILIPPINES, represented by the SOLICITOR GENERAL, RICARDO BAUTISTA, ET AL., respondents. GANCAYCO, J.: The issue raised in this ease is whether the trial court acting on a motion to dismiss a criminal case filed by the Provincial Fiscal upon instructions of the Secretary of Justice to whom the case was elevated for review, may refuse to grant the motion and insist on the arraignment and trial on the merits. On April 18, 1977 Assistant Fiscal Proceso K. de Gala with the approval of the Provincial Fiscal filed an information for estafa against Mario Fl. Crespo in the Circuit Criminal Court of Lucena City which was docketed as Criminal Case No. CCCIX-52 (Quezon) '77.1 When the case was set for arraigment the accused filed a motion to defer arraignment on the ground that there was a pending petition for review filed with the Secretary of Justice of the resolution of the Office of the Provincial Fiscal for the filing of the information. In an order of August 1, 1977, the presiding judge, His 2 Honor, Leodegario L. Mogul, denied the motion. A motion for reconsideration of the order was denied in the order of August 5, 1977 but the 3 arraignment was deferred to August 18, 1977 to afford nine for petitioner to elevate the matter to the appellate court. A petition for certiorari and prohibition with prayer for a preliminary writ of injunction was filed by the accused in the Court of Appeals that was 4 docketed as CA-G.R. SP No. 06978. In an order of August 17, 1977 the Court of Appeals restrained Judge Mogul from proceeding with the 5 arraignment of the accused until further orders of the Court. In a comment that was filed by the Solicitor General he recommended that the 6 petition be given due course. On May 15, 1978 a decision was rendered by the Court of Appeals granting the writ and perpetually restraining the judge from enforcing his threat to compel the arraignment of the accused in the case until the Department of Justice shall have finally resolved the 7 petition for review. On March 22, 1978 then Undersecretary of Justice, Hon.Catalino Macaraig, Jr., resolving the petition for review reversed the resolution of the 8 Office of the Provincial Fiscal and directed the fiscal to move for immediate dismissal of the information filed against the accused. A motion to 9 dismiss for insufficiency of evidence was filed by the Provincial Fiscal dated April 10, 1978 with the trial court, attaching thereto a copy of the letter of Undersecretary Macaraig, Jr. In an order of August 2, 1978 the private prosecutor was given time to file an opposition thereto. 10On November 24, 1978 the Judge denied the motion and set the arraigniment stating: ORDER For resolution is a motion to dismiss this rase filed by the procuting fiscal premised on insufficiency of evidence, as suggested by the Undersecretary of Justice, evident from Annex "A" of the motion wherein, among other things, the Fiscal is urged to move for dismissal for the reason that the check involved having been issued for the payment of a pre-existing obligation the Hability of the drawer can only be civil and not criminal. The motion's thrust being to induce this Court to resolve the innocence of the accused on evidence not before it but on that adduced before the Undersecretary of Justice, a matter that not only disregards the requirements of due process but also erodes the Court's independence and integrity, the motion is considered as without merit and therefore hereby DENIED. WHEREFORE, let the arraignment be, as it is hereby set for December 18, 1978 at 9:00 o'clock in the moming. SO ORDERED. 11 The accused then filed a petition for certiorari, prohibition and mandamus with petition for the issuance of preliminary writ of prohibition and/or temporary restraining order in the Court of Appeals that was docketed as CA-G.R. No. SP-08777. 12 On January 23, 1979 a restraining order was issued by the Court of Appeals against the threatened act of arraignment of the accused until further orders from the Court. 13 In a decision of October 25, 1979 the Court of Appeals dismissed the petition and lifted the restraining order of January 23, 1979. 14 A motion for reconsideration of said decision filed by the accused was denied in a resolution of February 19, 1980. 15 Hence this petition for review of said decision was filed by accused whereby petitioner prays that said decision be reversed and set aside, respondent judge be perpetually enjoined from enforcing his threat to proceed with the arraignment and trial of petitioner in said criminal case, declaring the information filed not valid and of no legal force and effect, ordering respondent Judge to dismiss the said case, and declaring the obligation of petitioner as purely civil. 16 In a resolution of May 19, 1980, the Second Division of this Court without giving due course to the petition required the respondents to comment to the petition, not to file a motiod to dismiss, within ten (10) days from notice. In the comment filed by the Solicitor General he recommends that the petition be given due course, it being meritorious. Private respondent through counsel filed his reply to the comment and a separate conunent

to the petition asking that the petition be dismissed. In the resolution of February 5, 1981, the Second Division of this Court resolved to transfer this case to the Court En Banc. In the resolution of February 26, 1981, the Court En Banc resolved to give due course to the petition. Petitioner and private respondent filed their respective briefs while the Solicitor General filed a Manifestation in lieu of brief reiterating that the decision of the respondent Court of Appeals be reversed and that respondent Judge be ordered to dismiss the information. It is a cardinal principle that an criminal actions either commenced by complaint or by information shall be prosecuted under the direction and control of the fiscal. 17 The institution of a criminal action depends upon the sound discretion of the fiscal. He may or may not file the complaint or information, follow or not fonow that presented by the offended party, according to whether the evidence in his opinion, is sufficient or not to establish the guilt of the accused beyond reasonable doubt. 18 The reason for placing the criminal prosecution under the direction and control of 20 the fiscal is to prevent malicious or unfounded prosecution by private persons. 19 It cannot be controlled by the complainant. Prosecuting officers under the power vested in them by law, not only have the authority but also the duty of prosecuting persons who, according to the 21 evidence received from the complainant, are shown to be guilty of a crime committed within the jurisdiction of their office. They have equally the legal duty not to prosecute when after an investigation they become convinced that the evidence adduced is not sufficient to establish a prima 22 facie case. 23 It is through the conduct of a preliminary investigation that the fiscal determines the existence of a puma facie case that would warrant the prosecution of a case. The Courts cannot interfere with the fiscal's discretion and control of the criminal prosecution. It is not prudent or even permissible for a Court to compel the fiscal to prosecute a proceeding originally initiated by him on an information, if he finds that the evidence 24 relied upon by him is insufficient for conviction. Neither has the Court any power to order the fiscal to prosecute or file an information within a 25 certain period of time, since this would interfere with the fiscal's discretion and control of criminal prosecutions. Thus, a fiscal who asks for the 26 dismissal of the case for insufficiency of evidence has authority to do so, and Courts that grant the same commit no error. The fiscal may reinvestigate a case and subsequently move for the dismissal should the re-investigation show either that the defendant is innocent or that his guilt 27 may not be established beyond reasonable doubt. In a clash of views between the judge who did not investigate and the fiscal who did, or 28 between the fiscal and the offended party or the defendant, those of the Fiscal's should normally prevail. On the other hand, neither an 29 injunction, preliminary or final nor a writ of prohibition may be issued by the courts to restrain a criminal prosecution except in the extreme case where it is necessary for the Courts to do so for the orderly administration of justice or to prevent the use of the strong arm of the law in an op 30 pressive and vindictive manner. However, the action of the fiscal or prosecutor is not without any limitation or control. The same is subject to the approval of the provincial or city fiscal or the chief state prosecutor as the case maybe and it maybe elevated for review to the Secretary of Justice who has the power to affirm, modify or reverse the action or opinion of the fiscal. Consequently the Secretary of Justice may direct that a motion to dismiss the rase be filed in 31 Court or otherwise, that an information be filed in Court. The filing of a complaint or information in Court initiates a criminal action. The Court thereby acquires jurisdiction over the case, which is the 32 authority to hear and determine the case. When after the filing of the complaint or information a warrant for the arrest of the accused is issued by the trial court and the accused either voluntarily submited himself to the Court or was duly arrested, the Court thereby acquired jurisdiction 33 over the person of the accused. The preliminary investigation conducted by the fiscal for the purpose of determining whether a prima facie case exists warranting the prosecution of the accused is terminated upon the filing of the information in the proper court. In turn, as above stated, the filing of said information sets in motion the criminal action against the accused in Court. Should the fiscal find it proper to conduct a reinvestigation of the case, at such stage, the permission of the Court must be secured. After such reinvestigation the finding and recommendations of the fiscal should be submitted to the 34 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 rase 35 thereafter should be addressed for the consideration of the Court, The only qualification is that the action of the Court must not impair the 36 36 substantial rights of the accused. or the right of the People to due process of law. a Whether the accused had been arraigned or not and whether it was due to a reinvestigation by the fiscal or a review by the Secretary of Justice whereby a motion to dismiss was submitted to the Court, the Court in the exercise of its discretion may grant the motion or deny it and require that the trial on the merits proceed for the proper determination of the case. However, one may ask, if the trial court refuses to grant the motion to dismiss filed by the fiscal upon the directive of the Secretary of Justice will there not be a vacuum in the prosecution? A state prosecutor to handle the case cannot possibly be designated by the Secretary of Justice who does not believe that there is a basis for prosecution nor can the fiscal be expected to handle the prosecution of the case thereby defying the superior order of the Secretary of Justice. The answer is simple. The role of the fiscal or prosecutor as We all know is to see that justice is done and not necessarily to secure the conviction of the person accused before the Courts. Thus, in spite of his opinion to the contrary, it is the duty of the fiscal to proceed with the presentation of evidence of the prosecution to the Court to enable the Court to arrive at its own independent judgment as to whether the accused should be convicted or acquitted. The fiscal should not shirk from the responsibility of appearing for the People of the Philippines even under such circumstances much less should he abandon the prosecution of the case leaving it to the hands of a private prosecutor for then the entire 37 proceedings will be null and void. The least that the fiscal should do is to continue to appear for the prosecution although he may turn over the 38 presentation of the evidence to the private prosecutor but still under his direction and control. The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any disposition of the case as its dismissal or the conviction or acquittal of the accused rests in the sound discretion of the Court. Although the fiscal retains the direction and control of the prosecution of criminal cases even while the case is already in Court he cannot impose his opinion on the trial court. The Court is the best and sole judge on what to do with the case before it. The determination of the case is within its exclusive jurisdiction and competence. A motion to dismiss the case filed by the fiscal should be addressed to the Court who has the option to grant or deny the same. It does not matter if this is done before or after the arraignment of the accused or that the motion was filed after a reinvestigation or upon instructions of the Secretary of Justice who reviewed the records of the investigation. In order therefor to avoid such a situation whereby the opinion of the Secretary of Justice who reviewed the action of the fiscal may be disregarded by the trial court, the Secretary of Justice should, as far as practicable, refrain from entertaining a petition for review or appeal from the action of the fiscal, when the complaint or information has already been filed in Court. The matter should be left entirely for the determination of the Court.

WHEREFORE, the petition is DISMISSED for lack of merit without pronouncement as to costs. SO ORDERED. PAUL G. ROBERTS, JR., RODOLFO C. SALAZAR, LUIS LORENZO, SR., LUIS LORENZO, JR., AMAURY R. GUTIERREZ, BAYANI N. FABIC, JOSE YULO, JR., ESTEBAN B. PALANNUAYAN, and WONG FONG FUI, petitioners, vs. THE COURT OF APPEALS, THE HON. MAXIMIANO ASUNCION, in his capacity as the Presiding Judge of the Regional Trial Court, Quezon City, Branch 104, HON. APOLINARIO G. EXEVEA, HON. HENRICK F. GINGOYON, and HON. PHILIP A. AGUINALDO, in their capacities as Members of the Department of Judge 349 Committee, and the CITY PROSECUTOR OF QUEZON CITY, respondents. ROBERTO DELGADO, petitioner-intervenor. DECISION DAVIDE, JR., J.: [1] We are urged in this petition to set aside (a) the decision of the Court of Appeals of 28 September 1993 in CA-G.R. SP No. 31226, which dismissed the petition therein on the ground that it has been mooted with the release by the Department of Justice of its decision x x x dismissing [2] petitioners petition for review; (b) the resolution of the said court of 9 February 1994 denying the petitioners motion to reconsider the [3] decision; (c) the order of 17 May 1993 of respondent Judge Maximiano C. Asuncion of Branch 104 of the Regional Trial Court (RTC) of Quezon City in Criminal Case No. Q-93-43198 denying petitioners motion to suspend proceedings and to hold in abeyance the issuance of the warrants of [4] arrest and the public prosecutors motion to defer arraignment; and (d) the resolution of 23 July 1993 and 3 February 1994 of the Department of Justice, (DOJ) dismissing petitioners petition for the review of the Joint Resolution of the Assistant City Prosecutor of Quezon City and denying the motion to reconsider the dismissal, respectively. The petitioners rely on the following grounds for the grant of the reliefs prayed for in this petition: I Respondent Judge acted with grave abuse of discretion when he ordered the arrest of the petitioners without examining the record of the preliminary investigation and in determining for himself on the basis thereof the existence of probable cause. II The Department of Justice 349 Committee acted with grave abuse of discretion when it refused to review the City Prosecutors Joint Resolution and dismissed petitioners appeal therefrom. III The Court of Appeals acted with grave abuse of discretion when it upheld the subject order directing the issuance of the warrants of arrest without assessing for itself whether based on such records there is probable cause against petitioners. IV [5] The facts on record do not establish prima facie probable cause and Criminal Case No. Q-93-43198 should have been dismissed. The antecedents of this petition are not disputed. [6] Several thousand holders of 349 Pepsi crowns in connection with the Pepsi Cola Products Phils., Inc.s (PEPSIs) Number Fever [7] Promotion filed with the Office of the City Prosecutor of Quezon City complaints against the petitioners in their respective capacities as Presidents or Chief Executive Officers, Chairman of the Board, Vice-Chairman of the Board, and Directors of PEPSI, and also against other officials of PEPSI. The complaints respectively accuse the petitioners and the other PEPSI officials of the following crimes: (a) estafa; (b) violation of R.A. No. [8] 7394, otherwise known as the Consumer Act of the Philippines; (c) violation of E.O. No. 913; and (d) violation of Act No. 2333, entitled An Act [9] Relative to Untrue, Deceptive and Misleading Advertisements, as amended by Act No. 3740. [10] After appropriate proceedings, the investigating prosecutor, Ramon M. Gerona, released on 23 March 1993 a Joint Resolution where he recommended the filing of an information against the petitioners and others for the violation of Article 3 18 of the Revised Penal Code and the dismissal of the complaints for the violation of Article 315, 2(d) of the Revised Penal Code; R.A. No. 7394; Act No. 2333, as amended by Act No. 3740; and E.O. No. 913. The dispositive portion thereof reads as follows: In view of all the foregoing, it is recommended that: 1. The attached information be filed against respondents Paul G. Roberts, Jr., Rodolfo C. Salazar, Rosemarie R. Vera, Luis F. Lorenzo, Sr., Luis P. Lorenzo, Jr., J. Roberto Delgado, Amaury R. Gutierrez, Bayani N. Fabic, Jose Yulo, Jr., Esteban B. Pacannuayan, Jr., Wong Fong Fui, Quintin J. Gomez, Jr. and Chito V. Gutierrez for estafa under Article 318, Revised Penal Code, while the complaint for violation of Article 315, 2(d), Revised Penal Code against same respondents Juanito R. Ignacio, R. Sobong, R.O. Sinsuan, M.P. Zarsadias, L.G. Dabao, Jr., R.L. Domingo, N.N. Bacsal, Jesus M. Manalastas, Janette P. Pio de Roda, Joaquin W. Sampaico, Winefreda 0. Madarang, Jack Gravey, Les G. Ham, Corazon Pineda, Edward S. Serapio, Alex 0. Caballes, Sandy Sytangco, Jorge W. Drysdale, Richard Blossom, Pablo de Borja, Edmundo L. Tan, Joseph T. Cohen, Delfin Dator, Zosimo B. San Juan, Joaquin Franco, Primitivo S. Javier, Jr., Luisito Guevarra, Asif H. Adil, Eugenio Muniosguren, James Ditkoff and Timothy Lane be dismissed; 2. The complaints against all respondents for violation of R.A. 7394 otherwise known as the Consumer Act of the Philippines and violation of Act 2333 as amended by Act 3740 and E 0. 913 be also dismissed for insufficiency of evidence, and 3. I.S. Nos. 92-7833; 92-8710 and 92-P-1065 involving Crowns Nos. 173; 401; and 117, 425, 703 and 373, respectively, alleged to be [11] likewise winning ones be further investigated to afford respondents a chance to submit their counter-evidence. On 6 April 1993, City Prosecutor Candido V. Rivera approved the recommendation with the modification that Rosemarie Vera, Quintin [12] Gomez, Jr., and Chito Gonzales be excluded from the charge on the ground of insufficiency of evidence. The information for estafa attached to the Joint Resolution was approved (on 7 April 1993) by Ismael P. Casabar, Chief of the Prosecution Division, upon authority of the City Prosecutor of Quezon City, and was filed with the RTC of Quezon City on 12 April 1993. It was docketed as [13] Criminal Case No. Q-93-43198. The information reads as follows: The undersigned 1st Assistant City Prosecutor accuses PAUL G. ROBERTS, JR. RODOLFO C. SALAZAR, LUIS F. LORENZO, SR., LUIS P. LORENZO, JR., J. ROBERTO DELGADO, AMAURY R. GUTIERREZ, BAYANI N. FABIC, JOSE YULO, JR., ESTEBAN B. PACANNUAYAN, JR. and WONG FONG FUI, of the crime of ESTAFA, committed as follows: That in the month of February, 1992, in Quezon City, Philippines and for sometime prior and subsequent thereto, the above-named accused Paul G. Roberts, Jr. ) being then the Presidents Rodolfo G. Salazar and Executive Officers

Luis F. Lorenzo, Sr. ) being then the Chairman of the Board of Directors Luis P. Lorenzo, Jr. ) being then the Vice Chairman of the Board J. Roberto Delgado ) being then Members of the Board Amaury R. Gutierrez ) Bayani N. Fabic ) Jose Yulo, Jr. ) Esteban B. Pacannuayan, Jr. and Wong Fong Fui ) OF THE PEPSI COLA PRODUCTS PHILIPPINES, INC., CONSPIRING with one another, with intent of gain, by means of deceit, fraudulent acts or false pretenses, executed prior to or simultaneously with the commission of the fraud, did then and there willfully, unlawfully and feloniously defraud the private complainants whose names with their prizes claimed appear in the attached lists marked as Annexes A to A-46; B to -33; C to C-281; D to D-238; E to E-3O and F to F-244 in the following manner: on the date and in the place aforementioned, said accused pursuant to their conspiracy, launched the Pepsi Cola Products Philippines, Inc. Number Fever Promotion from February 17 to May 8, 1992 later extended to May 11-June 12, 1992 and announced and advertised in the media that all holders of crowns and/or caps of Pepsi, Mirinda, Mountain Dew and Seven-Up bearing the winning 3-digit number will win the full amount of the prize printed on the crowns/caps which are marked with a seven-digit security code as a measure against tampering or faking of crowns and each and every number has its own unique matching security code, enticing the public to buy Pepsi softdrinks with aforestated alluring and attractive advertisements to become millionaires, and by virtue of such representations made by the accused, the said complainants bought Pepsi softdrinks, but, the said accused after their TV announcement on May 25, 1992 that the winning number for the next day was 349, in violation of their aforecited mechanics, refused as they still refuse to redeem/pay the said Pepsi crowns and/or caps presented to them by the complainants, who, among others, were able to buy Pepsi softdrinks with crowns/caps bearing number 349 with security codes L-2560-FQ and L-3560-FQ, despite repeated demands made by the complainants, to their damage and prejudice to the extent of the amount of the prizes respectively due them from their winning 349 crowns/caps, together with such other amounts they spent ingoing to and from the Office of Pepsi to claim their prizes and such other amounts used in buying Pepsi softdrinks which the complainants normally would not have done were it not for the false, fraudulent and deceitful posters of Pepsi Cola Products, Inc. CONTRARY TO LAW. On 14 April 1993, the petitioners filed with the Office of the City Prosecutor a motion for the reconsideration of the Joint [14] Resolution alleging therein that (a) there was neither fraud in the Number Fever Promotion nor deviation from or modification of the promotional rules approved by the Department of Trade and industry (DTI), for from the start of the promotion, it had always been clearly explained to the public that for one to be entitled to the cash prize his crown must bear both the winning number and the correct security code as they appear in the DTI list; (b) the complainants failed to allege, much less prove with prima facie evidence, the specific overt criminal acts or ommissions purportedly committed by each of the petitioners; (c) the compromise agreement entered into by PEPSI is not an admission of guilt; and (d) the evidence establishes that the promo was carried out with utmost good faith and without malicious intent. [15] On 15 April 1993, the petitioners filed with the DOJ a Petition for Review wherein, for the same grounds adduced in the aforementioned motion for reconsideration, they prayed that the Joint Resolution be reversed and the complaints dismissed. They further stated that the approval of the Joint Resolution by the City prosecutor was not the result of a careful scrutiny and independent evaluation of the relevant facts and the applicable law but of the grave threats, intimidation, and actual violence which the complainants had inflicted on him and his assistant prosecutors. On that same date, the petitioners filed in Criminal Case No. Q-93-43198 Motions to Suspend Proceedings and to Hold in Abeyance Issuance [16] of Warrants of Arrest on the ground that they had filed the aforesaid Petition for Review. [17] On 21 April 1993, acting on the Petition for Review, Chief State Prosecutor Zenon L. De Guia issued a 1st Indorsement, directing the City Prosecutor of Quezon City to inform the DOJ whether the petitioners have already been arraigned, and if not, to move in court for the deferment of further proceedings in the case and to elevate to the DOJ the entire records of the case, for the case is being treated as an exception pursuant to Section 4 of Department Circular No. 7 dated 25 January 1990. [18] On 22 April 1993, Criminal Case no. Q-93-41398 was raffled to Branch 104 of the RTC of Quezon City. [19] In the morning of 27 April 1993, private prosecutor Julio Contreras filed an Ex-Parte Motion for Issuance of Warrants of Arrest. In the afternoon of that same day, petitioner Paul Roberts, Jr., filed a Supplemental Urgent Motion to hold in Abeyance Issuance of Warrant [20] of Arrest and to Suspend Proceedings. He stressed that the DOJ had taken cognizance of the Petition for Review by directing the City Prosecutor to elevate the records of I.S. No. P-4401 and its related cases and asserted that the petition for review was an essential part of the petitioners right to a preliminary investigation. The next day, respondent Judge Asuncion, Presiding Judge of Branch 104 of the RTC of Quezon City, issued an order advising the parties that his court would be guided by the doctrine laid down by the Supreme Court in the case of Crespo vs. Mogul, 151 SCRA 462 and not by the [21] resolution of the Department of Justice on the petition for review undertaken by the accused. On 30 April 1993, Assistant City Prosecutor Tirso M. Gavero filed with the trial court a Motion to Defer Arraignment wherein he also prayed [22] that further proceedings be held in abeyance pending final disposition by the Department of Justice. [23] [24] On 4 May 1993, Gavero filed an Amended Information, accompanied by a corresponding motion to admit it. The amendments merely consist in the statement that the complainants therein were only among others who were defrauded by the accused and that the damage or prejudice caused amounted to several billions of pesos, representing the amounts due them from their winning 349 crowns/caps. The trial court [25] admitted the amended information on the same date. [26] Later, the attorneys for the different private complainants filed, respectively, an Opposition to Motion to Defer Arraignment, and [27] Objection and Opposition to Motion to Suspend Proceedings and to Hold in Abeyance the Issuance of Warrants of Arrest. On 14 May 1993, the petitioners filed a Memorandum in support of their Motion to Suspend Proceedings and to Hold in Abeyance the [28] Issuance of the Warrants of Arrest. On 17 May 1993, respondent Judge Asuncion issued the challenged order (1) denying the petitioners Motion to Suspend Proceedings and to Hold In Abeyance Issuance of Warrants of Arrest and the public prosecutors Motion to Defer Arraignment and (2) directing the issuance of the [29] warrants of arrest after 21 June 1993 and setting the arraignment on28 June 1993. Pertinent portions of the order read as follows:

In the Motion filed by the accused, it is alleged that on April 15, 1993, they filed a petition for review seeking the reversal of the resolution of the City Prosecutor of Quezon City approving the filing of the case against the accused, claiming that: 1. The resolution constituting [sic] force and duress; 2. There was no fraud or deceit therefore there can be no estafa; 3. No criminal overt acts by respondents were proved; 4. Pepsi nor the accused herein made no admission of guilt before the Department of Trade and Industry; 5. The evidence presented clearly showed no malicious intent on the part of the accused. Trial Prosecutor Tirso M. Gavero in his Motion to Defer Arraignment averred that there is a pending petition for review with the Department of Justice filed by the accused and the Office of the City Prosecutor was directed, among other things, to cause for the deferment of further proceedings pending final disposition of said petition by the Department of Justice. The motions filed by the accused and the Trial Prosecutor are hereby DENIED. This case is already pending in this Court for trial. To follow whatever opinion the Secretary of Justice may have on the matter would undermine the independence and integrity of this Court. This Court is still capable of administering justice. The Supreme Court in the case of Crespo vs. Mogul (SCRA 151, pp. 471-472) stated as follows: In order therefor to avoid such a situation whereby the opinion of the Secretary of Justice who reviewed the action of the fiscal may be disregarded by the trial court, the Secretary of Justice should, as far as practicable, refrain from entertaining a petition for review or appeal from the action of the fiscal, when the complaint or information has already been filed in Court. The matter should be left entirely for the determination of the Court. WHEREFORE, let warrant of arrest be issued after June 21, 1993, and arraignment be set on June 28, 1993, at 9:30 in the morning. On 7 June 1993, the petitioners filed with the Court of Appeals a special civil action for certiorari and prohibition with application for a [30] temporary restraining order, which was docketed as CA-G.R. SP No. 31226. They contended therein that respondent Judge Asuncion had acted without or in excess of jurisdiction or with grave abuse of discretion in issuing the aforementioned order of 17 May 1993 because I. RESPONDENT JUDGE FAILED TO EXAMINE THE RECORD OF PRELIMINARY INVESTIGATION BEFORE ORDERING THE ARREST OF PETITIONERS. II. THERE IS NO PROBABLE CAUSE TO HOLD PETITIONERS CRIMINALLY LIABLE FOR ESTAFA, OTHER DECEITS, OR ANY OTHER OFFENSE. III. THE PROCEEDINGS BELOW SHOULD HAVE BEEN SUSPENDED TO AWAIT THE SECRETARY OF JUSTICES RESOLUTION OF PETITIONERS APPEAL, AND IV. THERE IS NO OTHER PLAIN, SPEEDY AND ADEQUATE REMEDY IN THE ORDINARY COURSE OF LAW. [31] On 15 June 1993, the Court of Appeals issued a temporary restraining order to maintain the status quo. In view thereof, respondent Judge [32] Asuncion issued an order on 28 June 1993 postponing indefinitely the arraignment of the petitioners which was earlier scheduled on that date. On 28 June 1993, the Court of Appeals heard the petitioners application for a writ of preliminary injunction, granted the motion for leave to intervene filed by J. Roberto Delgado, and directed the Branch Clerk of Court of the RTC of Quezon City to elevate the original records of Criminal [33] Case No. Q-93-43198 Upon receipt of the original records of the criminal case, the Court of Appeals found that a copy of the Joint Resolution had in fact been forwarded to, and received by, the trial court on 22 April 1993, which fact belied the petitioners claim that the respondent Judge had not the slightest basis at all for determining probable cause when he ordered the issuance of warrants of arrest. It ruled that the Joint Resolution was sufficient in itself to have been relied upon by respondent Judge in convincing himself that probable cause indeed exists for the purpose of issuing the corresponding warrants of arrest; and that the mere silence of the records or the absence of any express declaration in the questioned order as to the basis of such finding does not give rise to an adverse inference, for the respondent Judge enjoys in his favor the presumption of [34] regularity in the performance of his official duty. The Court of Appeals then issued a resolution denying the application for a writ of preliminary injunction. [35] On 8 June 1993, the petitioners filed a motion to reconsider the aforesaid resolution. The Court of Appeals required the respondents [36] therein to comment on the said motion. [37] On 3 August 1993, the counsel for the private complainants filed in CA-G.R. SP No. 31226 a Manifestation informing the court that the [38] petitioners petition for review filed with the DOJ was dismissed in a resolution dated 23 July 1993. A copy of the resolution was attached to the Manifestation. [39] On 21 September 1993, the public respondents filed in CA-G.R. SP No. 31226 a motion to dismiss the petition on the ground that it has become moot and academic in view of the dismissal by the DOJ of the petitioners petition to review the Joint Resolution. The dismissal by the DOJ is founded on the following exposition: You questioned the said order of the RTC before the Court of Appeals and prayed for the issuance of a writ of preliminary injunction to restrain the Trial Judge from issuing any warrant of arrest and from proceeding with the arraignment of the accused. The appellate court in a resolution dated July 1, 1993, denied your petition. In view of the said developments, it would be an exercise in futility to continue reviewing the instant cases for any further action on the part of the Department would depend on the sound discretion of the Trial Court. The denial by the said court of the motion to defer arraignment filed at our instance was clearly an exercise of its discretion. With the issuance of the order dated May 17, 1993, the Trial Court was in effect sending a signal to this Department that the determination of the case is within its exclusive jurisdiction and competence. The rule is that x x x once a complaint or information is filed in Court, any disposition of the case as to 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. x x x [40] (Crespo vs. Mogul, 151 SCRA 462). [41] On 28 September 1993, the Court of Appeals promulgated a decision dismissing the petition because it had been mooted with the release by the Department of Justice of its decision x x x dismissing petitioners petition for review by inerrantly upholding the criminal courts exclusive and unsupplantable authority to control the entire course of the case brought against petitioners, reiterating with approval the dictum laid down in the Crespo case.

The petitioners filed a motion to reconsider the DOJs dismissal of the petition citing therein its resolutions in other similar cases which were favorable to the petitioners and adverse to other 349 Pepsi crowns holders. In its resolution of 3 February 1994, the DOJ, through its 349 Committee, denied the motion and stated: The instant petition is different from the other petitions resolved by this Department in similar cases from the provinces. In the latter petitions, the complaints against herein [42] respondents [sic] were dismissed inasmuch as the informations have not yet been filed or even if already filed in court, the proceedings have [43] been suspended by the courts to await the outcome of the appeal with this Department. [44] The petitioners likewise filed a motion to reconsider the aforesaid Court of Appeals decision, which the said court denied in its [45] resolution of 9 February 1994. Hence, the instant petition. [46] The First Division of this Court denied due course to this petition in its resolution of 19 September 1994. [47] On 7 October 1994, the petitioners filed a motion for the reconsideration of the aforesaid resolution. Acting thereon, the First Division required the respondents to comment thereon. [48] [49] Later, the petitioners filed a supplemental motion for reconsideration and a motion to refer this case to the Court en banc. In its [50] resolution of 14 November 1994, the First Division granted the latter motion and required the respondents to comment on the supplemental motion for reconsideration In the resolution of 24 November 1994, the Court en banc accepted the referral. On 10 October 1995, after deliberating on the motion for reconsideration and the subsequent pleadings in relation thereto, the Court en banc granted the motion for reconsideration; reconsidered and set aside the resolution of 19 September 1994; and reinstated the petition. It then considered the case submitted for decision, since the parties have exhaustively discussed the issues in their pleadings, the original records of Criminal Case No. Q-93-43198 and of CA-G.R. SP No. 31226 had been elevated to this Court, and both the petitioners and the Office of the Solicitor General pray, in effect, that this Court resolve the issue of probable cause On the basis thereof. The pleadings of the parties suggest for this Courts resolution the following key issues: 1. Whether public respondent Judge Asuncion committed grave abuse of discretion in denying, on the basis of Crespo vs. Mogul, the motions to suspend proceedings and hold in abeyance the issuance of warrants of arrest and to defer arraignment until after the petition for review filed with the DOJ shall have been resolved. 2. Whether public respondent Judge Asuncion committed grave abuse of discretion in ordering the issuance of warrants of arrest without examining the records of the preliminary investigation. 3. Whether the DOJ, through its 349 Committee, gravely abused its discretion in dismissing the petition for review on the following bases: (a) the resolution of public respondent Court of Appeals denying the application for a writ of preliminary injunction and (b) of public respondent Asuncions denial of the abovementioned motions. 4. Whether public respondent Court of Appeals committed grave abuse of discretion (a) in denying the motion for a writ of preliminary injunction solely on the ground that public respondent Asuncion had already before him the Joint Resolution of the investigating prosecutor when he ordered the issuance of the warrants of arrest, and (b) in ultimately dismissing the petition on the ground of mootness since the DOJ has dismissed the petition for review. 5. Whether this Court may determine in this proceedings the existence of probable cause either for the issuance of warrants of arrest against the petitioners or for their prosecution for the crime of estafa. We resolve the first four issues in the affirmative and the fifth, in the negative. I. [51] There is nothing in Crespo vs. Mogul which bars the DOJ from taking cognizance of an appeal, by way of a petition for review, by an accused in a criminal case from an unfavorable ruling of the investigating prosecutor. It merely advised the DOJ to, as far as practicable, refrain from entertaining a petition for review or appeal from the action of the fiscal, when the complaint or information has already been filed in Court. More specifically, it stated: In order therefore to avoid such a situation whereby the opinion of the Secretary of Justice who reviewed the action of the fiscal may be disregarded by the trial court, the Secretary of Justice should, as far as practicable, refrain from entertaining a petition for review or appeal from the action of the fiscal, when the complaint or information has already been filed in Court. The matter should be left entirely for the determination [52] of the Court. [53] In Marcelo vs. Court of Appeals, this Court explicitly declared: Nothing in the said ruling forecloses the power or authority of the Secretary of Justice to review resolutions of his subordinates in criminal cases. The Secretary of Justice is only enjoined to refrain as far as practicable from entertaining a petition for review or appeal from the action of the prosecutor once a complaint or information is filed in court. In any case, the grant of a motion to dismiss, which the prosecution may file after the Secretary of Justice reverses an appealed resolution, is subject to the discretion of the court. Crespo could not have intended otherwise without doing violence to, or repealing, the last paragraph of Section 4, Rule 112 of the Rules of [54] Court which recognizes the authority of the Secretary of Justice to reverse the resolution of the provincial or city prosecutor or chief state prosecutor upon petition by a proper party. Pursuant to the said provision, the Secretary of Justice had promulgated the rules on appeals from resolutions in preliminary investigation. At the time the petitioners filed their petition for the review of the Joint Resolution of the investigating prosecutor, the governing rule was Circular No. 7, dated 25 January 1990. Section 2 thereof provided that only resolutions dismissing a criminal complaint may be appealed to the Secretary of [55] Justice. Its Section 4, however, provided an exception, thus allowing, upon a showing of manifest error or grave abuse of discretion, appeals from resolutions finding probable cause, provided that the accused has not been arraigned. The DOJ gave due course to the petitioners petition for review as an exception pursuant to Section 4 of Circular No. 7. [56] Meanwhile, the DOJ promulgated on 30 June 1993 Department Order No. 223 which superseded Circular No. 7. This Order, however, retained the provisions of Section 1 of the Circular on appealable cases and Section 4 on the non-appealable cases and the exceptions thereto. There is nothing in Department Order No. 223 which would warrant a recall of the previous action of the DOJ giving due course to the petitioners petition for review. But whether the DOJ would affirm or reverse the challenged Joint Resolution is still a matter of guesswork. Accordingly, it was premature for respondent Judge Asuncion to deny the motions to suspend proceedings and to defer arraignment on the following grounds:

This case is already pending in this Court for trial. To follow whatever opinion the Secretary of Justice may have on the matter would undermine the independence and integrity of this Court. This Court is still capable of administering justice. The real and ultimate test of the independence and integrity of this court is not the filing of the aforementioned motions at that stage of the proceedings but the filing of a motion to dismiss or to withdraw the information on the basis of a resolution of the petition for review reversing the Joint Resolution of the investigating prosecutor. Before that time, the following pronouncement in Crespo did not yet truly become relevant or applicable: The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any disposition of the case as its dismissal or the conviction or acquittal of the accused rests in the sound discretion of the court. Although the fiscal retains the direction and control of the prosecution of criminal cases even while the case is already in court he cannot impose his opinion on the trial court. The court is the best and sole judge on what to do with the case before it. The determination of the case is within its exclusive jurisdiction and competence. A motion to dismiss the case filed by the fiscal should be addressed to the Court who has the option to grant or deny the same. It does not matter if this is done before or after the arraignment of the accused or that the motion was filed after a reinvestigation or upon instructions of the Secretary of Justice who [57] reviewed the records of the investigation. However, once a motion to dismiss or withdraw the information is filed the trial judge may grant or deny it, not out of subservience to the [58] Secretary of Justice, but in faithful exercise of judicial prerogative. This Court pertinently stated so in Martinez vs. Court of Appeals: Whether to approve or disapprove the stand taken by the prosecution is not the exercise of discretion required in cases like this. The trial judge must himself be convinced that there was indeed no sufficient evidence against the accused, and this conclusion can be arrived at only after an assessment of the evidence in the possession of the prosecution. What was imperatively required was the trial judges own assessment of such evidence, it not being sufficient for the valid and proper exercise of judicial discretion merely to accept the prosecutions word for its supposed insufficiency. As aptly observed the Office of the Solicitor General, in failing to make an independent finding of the merits of the case and merely anchoring the dismissal on the revised position of the prosecution, the trial judge relinquished the discretion he was duty bound to exercise. In effect, it was the prosecution, through the Department of Justice which decided what to do and not the court which was reduced to a mere rubber stamp in violation of the ruling in Crespo vs. Mogul. II. Section 2, Article III of the present Constitution 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. Under existing laws, warrants of arrest may be issued (1) by the Metropolitan Trial Courts (MeTCs) except those in the National Capital [59] Region, Municipal Trial Courts (MTCs), and Municipal Circuit Trial Courts (MCTCs) in cases falling within their exclusive original jurisdiction; in [60] cases covered by the rule on summary procedure where the accused fails to appear when required; and in cases filed with them which are [61] cognizable by the Regional Trial Courts (RTCs); and (2) by the Metropolitan Trial Courts in the National Capital Region (MeTCs-NCR) and the RTCs in cases filed with them after appropriate preliminary investigations conducted by officers authorized to do so other than judges of MeTCs, MTCs [62] and MCTCs. As to the first, a warrant can issue only if the judge is satisfied after an examination in writing and under oath of the complainant and the witnesses, in the form of searching questions and answers, that a probable cause exists and that there is a necessity of placing the respondent under immediate custody in order not to frustrate the ends of justice. [63] As to the second, this Court held in Soliven vs. Makasiar that the judge is not required to personally examine the complainant and the witnesses, but [f]ollowing established doctrine and procedure, he shall: (1) personally evaluate the report and supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or (2) if on the basis thereof he finds no probable cause, he may disregard the fiscals report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as [64] to the existence of probable cause. Sound policy supports this procedure, otherwise judges would be unduly laden with the preliminary examination and investigation of criminal complaints instead of concentrating on hearing and deciding cases filed before their courts. It must be emphasized that judges must not rely solely on the report or resolution of the fiscal (now prosecutor); they must evaluate the report and the supporting documents. In this sense, the aforementioned requirement has modified paragraph 4(a) of Circular No. 12 issued by this Court on 30 June 1987 prescribing the Guidelines on Issuance of Warrants of Arrest under Section 2, Article III of the 1987 Constitution, which provided in part as follows: 4. In satisfying himself of the existence of a probable cause for the issuance of a warrant of arrest, the judge, following established doctrine and procedure, may either: (a) Rely upon the fiscals certification of the existence of probable cause whether or not the case is cognizable only by the Regional Trial Court and on the basis thereof, issue a warrant of arrest. x x x This requirement of evaluation not only of the report or certification of the fiscal but also of the supporting documents was further explained [65] in People vs. Inting, where this Court specified what the documents may consist of, viz., the affidavits, the transcripts of stenographic notes (if any), and all other supporting documents behind the Prosecutors certification which are material in assisting the Judge to make his determination of probable cause. Thus: We emphasize the important features of the constitutional mandate that x x x no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge x x x (Article III, Section 2, Constitution). First, the determination of probable cause is a function of the Judge. It is not for the Provincial Fiscal or Prosecutor nor the Election Supervisor to ascertain. Only the Judge and the Judge alone makes this determination. Second, the preliminary inquiry made by a Prosecutor does not bind the Judge. It merely assists him to make the determination of probable cause. The Judge does not have to follow what the Prosecutor presents to him. By itself, the Prosecutors certification of probable cause is ineffectual. It is the report, the affidavits, the transcripts of stenographic notes (if any), and all other supporting documents behind the Prosecutors certification which are material in assisting the Judge to make his determination.

In adverting to a statement in People vs. Delgado that the judge may rely on the resolution of the Commission on Elections (COMELEC) to file the information by the same token that it may rely on the certification made by the prosecutor who conducted the preliminary investigation in [67] the issuance of the warrant of arrest, this Court stressed in Lim vs. Felix that Reliance on the COMELEC resolution or the Prosecutors certification presupposes that the records of either the COMELEC or the Prosecutor have been submitted to the Judge and he relies on the certification or resolution because the records of the investigation sustain the recommendation. The warrant issues not on the strength of the certification standing alone but because of the records which sustain it. And noting that judges still suffer from the inertia of decisions and practice under the 1935 and 1973 Constitutions, this Court found it necessary to restate the rule in greater detail and hopefully clearer terms. It then proceeded to do so, thus: We reiterate the ruling in Soliven vs. Makasiar that the Judge does not have to personally examine the complainant and his witnesses. The Prosecutor can perform the same functions as a commissioner for the taking of the evidence. However, there should be a report and necessary documents supporting the Fiscals bare certification. All of these should be before the Judge. The extent of the Judges personal examination of the report and its annexes depends on the circumstances of each case. We cannot determine beforehand how cursory or exhaustive the Judges examination should be. The Judge has to exercise sound discretion for, after all, the personal determination is vested in the Judge by the Constitution. It can be as brief as or detailed as the circumstances of each case require. To be sure, the Judge must go beyond the Prosecutors certification and investigation report whenever, necessary. He should call for the complainant and witnesses themselves to answer the courts probing questions when the circumstances of the case so require. This Court then set aside for being null and void the challenged order of respondent Judge Felix directing the issuance of the warrants of arrest against petitioners Lim, et al., solely on the basis of the prosecutors certification in the informations that there existed probable cause without having before him any other basis for his personal determination of the existence of a probable cause. [68] In Allado vs. Diokno, this Court also ruled that before issuing a warrant of arrest, the judge must satisfy himself that based on the evidence submitted there is sufficient proof that a crime has been committed and that the person to be arrested is probably guilty thereof. [69] In the recent case of Webb vs. De Leon, this Court rejected the thesis of the petitioners of absence probable cause and sustained the [70] investigating panels and the respondent Judges findings of probable cause. After quoting extensively from Soliven vs. Makasiar, this Court explicitly pointed out: Clearly then, the Constitution, the Rules of Court, and our case law repudiate the submission of petitioners that respondent judges should have conducted searching examination of witnesses before issuing warrants of arrest against them. They also reject petitioners contention that a judge must first issue an order of arrest before issuing a warrant of arrest. There is no law or rule requiring the issuance of an Order of Arrest prior to a warrant of arrest. In the case at bar, the DOJ Panel submitted to the trial court its 26-page report, the two (2) sworn statements of Alfaro and the sworn statements of Carlos Cristobal and Lolita Birrer as well as the counter- affidavits of the petitioners. Apparently, the painstaking recital and analysis of the parties evidence made in the DOJ Panel Report satisfied both judges that there is probable cause to issue warrants of arrest against petitioners. Again, we stress that before issuing warrants of arrest, judges merely determine personally the probability, not the certainty of the guilt of an accused. In doing so, judges do not conduct a de novo hearing to determine the existence of probable cause. They just personally review the initial determination of the prosecutor finding a probable cause to see if it is supported by substantial evidence. The sufficiency of the review process cannot be measured by merely counting minutes and hours. The fact that it took the respondent judges a few hours to review and affirm the Probable cause determination of the DOJ Panel does not mean they made no personal evaluation of the evidence attached to the records of the case. (italics supplied) The teachings then of Soliven, Inting, Lim, Allado, and Webb reject the proposition that the investigating prosecutors certification in an information or his resolution which is made the basis for the filing of the information, or both, would suffice in the judicial determination of probable cause for the issuance of a warrant of arrest. In Webb, this Court assumed that since the respondent Judges had before them not only the 26-page resolution of the investigating panel but also the affidavits of the prosecution witnesses and even the counter-affidavits of the respondents, they (judges) made personal evaluation of the evidence attached to the records of the case. Unfortunately, in Criminal Case No. Q-93-43198, nothing accompanied the information upon its filing on 12 April 1993 with the trial court. As found by the Court of Appeals in its resolution of 1 July 1993, a copy of the Joint Resolution was forwarded to, and received by, the trial court only [71] on 22 April 1993. And as revealed by the certification of Branch Clerk of Court Gibson Araula, Jr., no affidavits of the witnesses, transcripts of stenographic notes of the proceedings during the preliminary investigation, or other documents submitted in the course thereof were found in the records of Criminal Case No. Q-93-43198 as of 19 May 1993. Clearly, when respondent Judge Asuncion issued the assailed order of 17 May 1993 directing, among other things, the issuance of warrants of arrest, he had only the information, amended information, and Joint Resolution as bases thereof. He did not have the records or evidence supporting the prosecutors finding of probable cause. And strangely enough, he made no specific finding of probable cause; he merely directed the issuance of warrants of arrest after June 21, 1993. It may, however, be argued that the directive presupposes a finding of probable cause. But then compliance with a constitutional requirement for the protection of individual liberty cannot be left to presupposition, conjecture, or even convincing logic. III. As earlier stated, per its 1st Indorsement of 21 April 1993, the DOJ gave due course to the petitioners petition for review pursuant to the exception provided for in Section 4 of Circular No. 7, and directed the Office of the City Prosecutor of Quezon City to forward to the Department the records of the cases and to file in court a motion for the deferment of the proceedings. At the time it issued the indorsement, the DOJ already knew that the information had been filed in court, for which reason it directed the City Prosecutor to inform the Department whether the accused have already been arraigned and if not yet arraigned, to move to defer further proceedings. It must have been fully aware that, pursuant to Crespo vs. Mogul, a motion to dismiss a case filed by the prosecution either as a consequence of a reinvestigation or upon instructions of the Secretary of Justice after a review of the records of the investigation is addressed to the trial court, which has the option to grant or to deny it. Also, it must have been still fresh in its mind that a few months back it had dismissed for lack of probable cause other similar complaints of holders of 349 [72] Pepsi crowns. Thus, its decision to give due course to the petition must have been prompted by nothing less than an honest conviction that a review of the Joint Resolution was necessary in the highest interest of justice in the light of the special circumstances of the case. That decision was permissible within the as far as practicable criterion in Crespo.

[66]

Hence, the DOJ committed grave abuse of discretion when it executed on 23 July 1993 a unilateral volte-face, which was even unprovoked by a formal pleading to accomplish the same end, by dismissing the petition for review. It dismissed the petition simply because it thought that a review of the Joint Resolution would be an exercise in futility in that any further action on the part of the Department would depend on the sound discretion of the trial court, and that the latters denial of the motion to defer arraignment filed at the instance of the DOJ was clearly an exercise of that discretion or was, in effect, a signal to the Department that the determination of the case is within the courts exclusive jurisdiction and competence. This infirmity becomes more pronounced because the reason adduced by the respondent Judge for his denial of the motions to suspend proceedings and hold in abeyance issuance of warrants of arrest and to defer arraignment finds, as yet, no support in Crespo. IV. If the only issue before the Court of Appeals were the denial of the petitioners Motion to Suspend Proceedings and to Hold in Abeyance Issuance of Warrants of Arrest and the public prosecutors Motion to Defer Arraignment, which were both based on the pendency before the DOJ of the petition for the review of the Joint Resolution, the dismissal of CA-G.R. SP No. 31226 on the basis of the dismissal by the DOJ of the petition for review might have been correct. However, the petition likewise involved the issue of whether respondent Judge Asuncion gravely abused his discretion in ordering the issuance of warrants of arrest despite want of basis. The DOJs dismissal of the petition for review did not render moot and academic the latter issue. In denying in its resolution of 1 July 1993 the petitioners application for a writ of preliminary injunction to restrain respondent Judge Asuncion from issuing warrants of arrest, the Court of Appeals ,justified its action in this wise: The Joint Resolution was sufficient in itself to have been relied upon by respondent Judge in convincing himself that probable cause indeed exists for the purpose of issuing the corresponding warrants of arrest. The mere silence of the records or the absence of any express declaration in the questioned Order of May 17, 1993 as to where the respondent Judge based his finding of probable cause does not give rise to any adverse inference on his part. The fact remains that the Joint Resolution was at respondent Judges disposal at the time he issued the Order for the issuance of the warrants of arrest. After all, respondent Judge enjoys in his favor the presumption of regularity in the performance of official actuations. And this presumption prevails until it is overcome by clear and convincing evidence to the contrary. Every reasonable intendment will be made in support of the presumption, and in case of doubt as to an officers act being lawful or unlawful it should be construed to be lawful. (31 C.J.S., 808810. See also Mahilum, et al. vs. Court of Appeals, 17 SCRA 482; People vs. Cortez, 21 SCRA 1228; Government of the P.I. vs. Galarosa, 36 Phil. 338). We are unable to agree with this disquisition, for it merely assumes at least two things: (1) that respondent Judge Asuncion had read and relied on the Joint Resolution and (2) he was convinced that probable cause exists for the issuance of the warrants of arrest against the petitioners. Nothing in the records provides reasonable basis for these assumptions. In his assailed order, the respondent Judge made no mention of the Joint Resolution, which was attached to the records of Criminal Case No. Q-93-43198 on 22 April 1993. Neither did he state that he found probable cause for the issuance of warrants of arrest. And, for an undivinable reason, he directed the issuance of warrants of arrest only after June 21, 1993. If he did read the Joint Resolution and, in so reading, found probable cause, there was absolutely no reason at all to delay for more than one month the issuance of warrants of arrest. The most probable explanation for such delay could be that the respondent Judge had actually wanted to wait for a little while for the DOJ to resolve the petition for review. It is, nevertheless, contended in the dissenting opinion of Mr. Justice Reynato S. Puno that whatever doubts may have lingered on the issue of probable cause was dissolved when no less than the Court of Appeals sustained the finding of probable cause made by the respondent Judge after an evaluation of the Joint Resolution. We are not persuaded with that opinion. It is anchored on erroneous premises. In its 1 July 1993 resolution, the Court of Appeals does not at all state that it either sustained respondent Judge Asuncions finding of probable cause, or found by itself probable cause. As discussed above, it merely presumed that Judge Asuncion might have read the Joint Resolution and found probable cause from a reading thereof. Then too, that statement in the dissenting opinion erroneously assumes that the Joint Resolution can validly serve as sufficient basis for determining probable cause. As stated above, it is not. V. [73] In criminal prosecutions, the determination of probable cause may either be an executive or a judicial prerogative. In People vs. Inting, this Court aptly stated: And third, Judges and Prosecutors alike should distinguish the preliminary inquiry which determines probable cause for the issuance of a warrant of arrest from a preliminary investigation proper which ascertains whether the offender should be held for trial or released. Even if the two inquiries are conducted in the course of one and the same proceeding, there should be no confusion about the objectives. 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 expense, 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 prosecutions job. The second kind of preliminary investigation which is more properly called preliminary examination is judicial in nature and is lodged with the judge x x x. Ordinarily, the determination of probable cause is not lodged with this Court. Its duty in an appropriate case is confined to the issue of whether the executive or judicial determination, as the case may be, of probable cause was done without or in excess of jurisdiction or with grave abuse of discretion amounting to want of jurisdiction. This is consistent with the general rule that criminal prosecutions may not be restrained or stayed by injunction, preliminary or final. There are, however, exceptions to this rule. Among the exceptions are enumerated in Brocka vs. [74] Enrile as follows: a. To afford adequate protection to the constitutional rights of the accused (Hernandez vs. Albano, et al., L-19272, January 25, 1967, 19 SCRA 95); b. When necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions (Dimayuga, et al. vs. Fernandez, 43 Phil. 304; Hernandez vs. Albano, supra;Fortun vs. Labang, et al., L-38383, May 27, 1981, 104 SCRA 607); c. When there is a pre-judicial question which is sub judice (De Leon vs. Mabanag, 70 Phil. 202); d. When the acts of the officer are without or in excess of authority (Planas vs. Gil, 67 Phil. 62);

e. Where the prosecution is under an invalid law, ordinance or regulation (Young vs. Rafferty, 33 Phil. 556; Yu Cong Eng vs. Trinidad, 47 Phil. 385, 389); f. When double jeopardy is clearly apparent (Sangalang vs. People and Avendia, 109 Phil. 1140); g. Where the court has no jurisdiction over the offense (Lopez vs. City Judge, L-25795, October 29, 1966, 18 SCRA 616); h. Where it is a case of persecution rather than prosecution (Rustia vs. Ocampo, CA-G.R. No. 4760, March 25, 1960); i. Where the charges are manifestly false and motivated by the lust for vengeance (Recto vs. Castelo, 18 L.J., [1953], cited in Raoa vs. Alvendia, CA-G.R. No. 30720-R, October 8, 1962; Cf. Guingona, et al. vs. City Fiscal, L-60033, April 4, 1984, 128 SCRA 577); and j. When there is clearly no prima facie case against the accused and a motion to quash on that ground has been denied (Salonga vs. Pao, et al., L-59524, February 18, 1985, 134 SCRA 438). 7. Preliminary injunction has been issued by the Supreme Court to prevent the threatened unlawful arrest of petitioners (Rodriguez vs. Castelo, L-6374, August 1, 1953). (cited in Regalado, Remedial Law Compendium, p. 188, 1988 Ed.) In these exceptional cases, this Court may ultimately resolve the existence or non-existence of probable cause by examining the records of the [75] preliminary investigation, as it did inSalonga vs. Pao, Allado, and Webb. There can be no doubt that, in light of the several thousand private complainants in Criminal Case No. Q-93-43198 and several thousands more in different parts of the country who are similarly situated as the former for being holders of 349 Pepsi crowns, any affirmative holding of probable cause in the said case may cause or provoke, as justly feared by the petitioners, the filing of several thousand cases in various courts throughout the country. Inevitably, the petitioners would be exposed to the harassments of warrants of arrest issued by such courts and to huge expenditures for premiums on bailbonds and for travels from one court to another throughout the length and breadth of the archipelago for their arraignments and trials in such cases. Worse, the filing of these staggering number of cases would necessarily affect the trial calendar of our overburdened judges and take much of their attention, time, and energy, which they could devote to other equally, if not more, important cases. Such a frightful scenario would seriously affect the orderly administration of justice, or cause oppression or multiplicity of actions - a situation already long conceded by this Court to be an exception to the general rule that criminal prosecutions may not be restrained or stayed by [76] injunction. We shall not, however, reevaluate the evidence to determine if indeed there is probable cause for the issuance of warrants of arrest in Criminal Case No. Q-93-43298. For, as earlier stated, the respondent Judge did not, in fact, find that probable cause exists, and if he did he did not have the basis therefor as mandated by Soliven, Inting, Lim, Allado, and even Webb. Moreover, the records of the preliminary investigation in Criminal Case No. Q-93-43198 are not with this Court. They were forwarded by the Office of the City Prosecutor of Quezon City to the DOJ in compliance with the latters 1st Indorsement of 21 April 1993. The trial court and the DOJ must be required to perform their duty. WHEREFORE, the instant petition is granted and the following are hereby SET ASIDE: (a) Decision of 28 September 1993 and Resolution of 9 February 1994 of respondent Court of Appeals in CA-G.R. SP No. 31226; (b) The Resolution of the 349 Committee of the Department of Justice of 23 July 1993 dismissing the petitioners petition for review and of 3 February 1994 denying the motion to reconsider the dismissal; and (c) The Order of respondent Judge Maximiano C. Asuncion of 17 May 1993 in Criminal Case No. Q-93-43198. The Department of Justice is DIRECTED to resolve on the merits, within sixty (60) days from notice of this decision, the petitioners petition for the review of the Joint Resolution of Investigating Prosecutor Ramon Gerona and thereafter to file the appropriate motion or pleading in Criminal Case No. Q-93-43198, which respondent Judge Asuncion shall then resolve in light of Crespo vs. Mogul, Soliven vs. Makasiar, People vs. Inting, Lim vs. Felix, Allado vs. Diokno, and Webb vs. De Leon. In the meantime, respondent Judge Asuncion is DIRECTED to cease and desist from further proceeding with Criminal Case No. Q-93-43198 and to defer the issuance of warrants of arrest against the petitioners. No pronouncement as to costs. SO ORDERED. GEORGE UY, petitioner, vs. SANDIGANBAYAN, OMBUDSMAN and ROGER C. BERBANO, SR., Special Prosecution Officer III, Office of the Special Prosecutor, respondents. DECISION PARDO, J.: [1] This petition for certiorari and prohibition seeks to annul and set aside the resolution of the Sandiganbayan denying petitioners motion to quash the six (6) informations charging him with violation of Section 3 (e), R.A. No. 3019, as amended, and to permanently enjoin the respondents from proceeding with the criminal cases insofar as petitioner is involved. At times material hereto, petitioner was Deputy Comptroller of the Philippine Navy. He was designated by his immediate supervisor, Captain Luisito F. Fernandez, Assistant Chief of Naval Staff for Comptrollership, to act on the latters behalf, during his absence, on matters relating to the activities of the Fiscal Control Branch, O/NG. This included the authority to sign disbursement vouchers relative to the procurement of equipment needed by the Philippine Navy. On July 2, 1991, six (6) informations for estafa through falsification of official documents and one (1) information for violation of Section 3 (e), R.A. No. 3019, as amended, were filed with the Sandiganbayan against petitioner and nineteen (19) co-accused, namely: (Ret.) Bgen. Mario S. Espina (then Assistant Secretary for Installations and Logistics, Department of National Defense), (Ret.) Rear Admiral Simeon M. Alejandro (then Flag Officer in Command, Philippine Navy), CDR Rodolfo Guanzon, CDR Erlindo A. Erolin, CAPT. Manual Ison (then Commander of the Naval Supply Center, Philippine Navy), CAPT. Andres Andres, LCDR Gilmer B. Batestil, LCDR Jose Alberto I. Velasco, Jr., LTSG Edgar L. Abogado, LT. Teddy O. Pan, LT. Ronald O. Sison, Reynaldo Paderna (Chief Accountant), Antonio Guda (Supply Accountable Officer, Fort San Felipe, Cavite, Philippine Navy), Loida T. Del Rosario (Typist), Marissa Bantigue (owner of MAR GEN Enterprise), Avelina Avila (owner of Avelina Avila General Merchandise), Jenis B. Bantigue (owner of JAB GEN Merchandise), Maria M. Capule (owner of MM Capule Enterprise) and Andrea C. Antonio (owner of AC Antonio Enterprise). [2] On September 20, 1991, the Sandiganbayan issued an Order directing a comprehensive re-investigation of the cases against all the twenty (20) accused.

After conducting the re-investigation, the Special Prosecutor issued an Order dated November 14, 1991 recommending that the informations for estafa through falsification of official documents be withdrawn and in lieu thereof, informations for violation of Section 3 (e) of [4] R.A. No. 3019, as amended, be filed against eleven (11) accused, which included the petitioner. [5] In a Memorandum dated December 5, 1991, Special Prosecutor Aniano A. Desierto reduced the number of those to be charged under R.A. [6] No. 3019, as amended, to five (5), including petitioner. [7] Acting on the separate motions for reconsideration of the five (5) remaining accused, the Special Prosecutor issued an Order dated [8] February 18, 1992 dropping two (2) more names from the five (5) officers recommended for prosecution, and recommending that six (6) separate informations for violation of Section 3(e), R.A. 3019, as amended, be filed against the petitioner, LCMDR. Rodolfo Guanzon and LT. Teddy [9] [10] Pan. Except for the variance in the Purchase Order numbers involved and the Payees, the six (6) amended informations filed by Special Prosecutor Officer III Roger C. Berbano, Sr. recite identical allegations, viz: That on or about November 1985, and for sometime prior or subsequent thereto, in Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, CDR. Rodolfo Guanzon, being then the Procurement Officer, Philippine Navy, LCDR. George Uy, being then the Assistant Chief of Naval Staff Comptrollership, Philippine Navy and Lt. Teddy O. Pan, being then the Naval Group Inspector, Philippine Navy, all public officials, and committing the offense in relation to their office, did then and there wilfully, unlawfully and criminally, through evident bad faith or gross inexcusable negligence, cause undue injury to the Government, and in the exercise of their separate official functions, to wit: accused Guanzon initiated/prepared the Abstract of Canvass and Recommendation of Awards, Certificate of Emergency Purchase and Reasonableness of Price, signed the PO, DV, validated PO No. x x x, accused Uy signed the DV in behalf of the Assistant Chief of Naval Comptrollership, accused Pan as N6 conducted the pre-audit and affixed his signature on the same P.O., the Sales Invoice and Technical Inspection Report -- which documents said accused had the duty to check/verify/examined, thereby acting or omitting to act in a situation where there is a duty to act, in that only 100 seal rings were ordered at a unit price of P98.70, yet 1,000 pieces appear to have been sold with total price ofP98,700.00, hence there was gross error in multiplication as shown on the face of the aforesaid PO and other supporting documents, resulting to an overpayment of P88,930.00 to x x x, thereby depriving the Government/Philippine Navy of the use thereof until its remittance/return to the Government/Philippine Navy by x x x in December, 1991. [11] On April 21, 1992, the petitioner filed with the Sandiganbayan a motion to quash the informations on the following grounds: 1. The Sandiganbayan has no jurisdiction over the offense charged or the person of the accused. 2. The officer who has filed the informations had no authority to do so. 3. The facts charged do not constitute an offense. 4. More than one (1) offense is charged. On June 10, 1992, the Sandiganbayan issued the now-assailed Resolution denying petitioners motion to quash for lack of merit. It passed upon the grounds set forth by petitioner in this wise: On the first issue raised by accused-movant, we are not inclined to rule that this Court has no jurisdiction over the person of accused-movant or over the offenses charged herewith. As intimated by the prosecution, this Court has several cases pending before it involving crimes committed by military officers in relation to their office. Unless and until the Highest Tribunal rules otherwise, this Court has no judicious recourse but to entertain and try the various criminal cases filed by the Office of the Special Prosecutor involving military officers and men accused of committing crimes in relation to their office, and those involving violation of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act. Be that as it may, being prosecuted for violation of R.A. 3019, as amended, Accused-movant axiomatically is subject to the jurisdiction of this Court. We cannot likewise sustain accused-movants stance that the officer who has filed the informations in the cases at bar had no authority to do so. Both the offense charged and the person of accused-movant being within the exclusive jurisdiction of this Court, it stands to reason that the preliminary investigation and prosecution of the instant criminal charges belong to, and are the exclusive prerogatives of, the Office of the Ombudsman, as provided for in Section 15(1) of Republic Act No. 6770. Neither are we impressed with the asseveration that the acts charged in the amended informations at bar do not constitute an offense. Such a claim cannot stand in the face of unequivocal rulings of the Supreme Court, thus: The fundamental rule in considering a motion to quash on the ground that the averments of the information are not sufficient to constitute the offense charged is whether the facts alleged, if hypothetically admitted, would meet the essential elements of the offense, as defined in the law. (People v. Segovia, 103 Phil. 1162). As a general proposition, too, a motion to quash on the ground that the allegations in the information do not constitute the offense charged, or of any offense for that matter, should be resolved on the basis alone of said allegations whose truth and veracity are hypothetically admitted. (People v. Navarro, 75 Phil. 516). The general rule is that in resolving the motion to quash a criminal complaint or information, the facts alleged therein should be taken as they are. This is especially so if the motion to quash is based on the ground that the facts charged do not constitute an offense, but he court may consider additional facts which the fiscal admits to be true. (People v. Navarro, supra). In consonance with the foregoing doctrinal pronouncements, the quashal of the informations at bar cannot be sustained since they are sufficient in form and substance to charge indictable offenses. Parenthetically, some of the arguments relied upon by accused-movant refer more to evidentiary matters, the determination of which are not yet legally feasible at this juncture and should only be raised during the trial on the merits. Finally, We find no merit in the argument that more than one offense is charged in the criminal informations at bar. Precisely, the prosecution split the original information into six (6) distinct amended informations pertaining to six (6) criminal violations of Section 3 (e) of R.A. 3019, as amended. Such is but proper under the premises considering that the acts subject of the criminal cases at bar were allegedly committed on six (6) different purchase orders and there is no showing that they were committed on similar dates or singular occasion. In the instant petition, petitioner raises the following issues: 1) Whether or not the Sandiganbayan has jurisdiction over the subject criminal cases or the person of the petitioner; 2) Whether or not the respondents Ombudsman and Special Prosecutor have the authority to file the questioned amended information; 3) Whether or not the act or omission charged constitutes an offense.

[3]

On the issue of jurisdiction, petitioner and the Solicitor General submit that it is the court-martial, not the Sandiganbayan, which has jurisdiction to try petitioner. Emphasizing the fundamental doctrine that the jurisdiction of a court is determined by the statute in force at the time of the commencement of the action, they claim that at the time the amended informations were filed on July 2, 1991, the controlling law on the jurisdiction over members of the Armed Forces of the Philippines is P.D. 1850, Providing for the trial by courts-martial of members of the Integrated National Police and further defining the jurisdiction of courts-martial over members of the Armed Forces of the Philippines (which took effect on October 4, 1982), as amended by P.D. 1952 (which took effect in September of 1984), more particularly Section 1(b) thereof provides: Section 1. Court Martial Jurisdiction over Integrated National Police and Members of the Armed Forces. -- Any provision of law to the contrary notwithstanding, (a) uniformed members of the Integrated National Police who commit any crime or offense cognizable by the civil courts shall henceforth be exclusively tried by courts-martial pursuant to and in accordance with Commonwealth Act No. 408, as amended, otherwise known as the Articles of War; (b) all persons subject to military law under Article 2 of the aforecited Articles of War who commit any crime or offense shall be exclusively tried by courts-martial or their case disposed of under the said Articles of War; Provided, that, in either of the aforementioned situations, the case shall be disposed of or tried by the proper civil or judicial authorities when court-martial jurisdiction over the offense has prescribed under Article 38 of Commonwealth Act Numbered 408, as amended, or court-martial jurisdiction over the person of the accused military or Integrated National Police personnel can no longer be exercised by virtue of their separation from the active service without jurisdiction having duly attached beforehand unless otherwise provided by law: Provided, further, that the President may, in the interest of Justice, order or direct, at any time before arraignment, that a particular case be tried by the appropriate civil court. As used herein, the term uniformed members of the Integrated National Police shall refer to police officers, policemen, firemen, and jail guards. (underscoring ours). Since petitioner is a regular officer of the Armed Forces of the Philippines, he falls squarely under Article 2 of the Articles of War (C.A. 408, as amended) mentioned in the aforecited Section 1(b) of P.D. 1850. Article 2 reads: Article 2: Persons subject to Military Law. -- The following persons are subject to these Articles and shall be understood as included in the term any person subject to military law or person subject to military law; whenever used in these articles: (a) All officers, members of the Nurse Corps and soldiers belonging to the Regular Force of the Philippine Army; all reservists, from the dates of their call to active duty and while on such active duty; all trainees undergoing military instruction; and all other persons lawfully called, drafted, or ordered into, or to duty or for training in, the said service, from the dates they are required by the terms of the call, draft, or order to obey the same; x x x. Petitioner and the Solicitor General concede the subsequent passage of Republic Act No. 7055, An Act Strengthening Civilian Supremacy over the military by returning to the civil courts the jurisdiction over certain offenses involving members of the Armed Forces of the Philippines, other persons subject to military law, and the members of the Philippine National Police, repealing for the purpose certain presidential decrees (which took effect on July 13, 1991) which expressly repealed P.D. 1850. Section 1 of R.A. No. 7055 reads: SECTION 1. Members of the Armed Forces of the Philippines and other persons subject to military law, including members of the Citizens Armed Forces Geographical Units, who commit crimes or offenses penalized under the Revised Penal Code, other special penal law, or local government ordinances, regardless of whether or not civilians are co-accused, victims, or offended parties which may be natural or judicial persons, shall be tried by the proper civil court, except when the offense, as determined before arraignment by the civil court, is service-connected, in which case the offense shall be tried by court-martial: Provided, That the President of the Philippines may, in the interest of justice, order or direct at any time before arraignment that any such crimes or offenses be tried by the proper civil courts. As used in this Section, service-connected crimes or offenses shall be limited to those defined in Articles 54 to 70, Articles 72 to 92 and Articles 95 to 97 of Commonwealth Act No. 408, as amended. In imposing the penalty for such crimes or offenses, the court-martial may take into consideration the penalty prescribed therefor in the Revised Penal Code, other special laws, or local government ordinances. They nonetheless argue that petitioners case falls within the exception provided for in said Section 1 of R.A. No. 7055, and, therefore, still cognizable by courts-martial, since the alleged commission of the offense for which petitioner is charged with is service-connected. We rule that the Sandiganbayan has no jurisdiction over petitioner, at the time of the filing of the informations, and as now prescribed by law. [12] [13] Republic Act No. 8249, the latest amendment to P.D. 1606 creating the Sandiganbayan (otherwise known as the Sandiganbayan Law), provides the prevailing scope of the Sandiganbayans jurisdiction. The pertinent portions of Section 4 of the Sandiganbayan Law read: Sec. 4. Jurisdiction. The Sandiganbayan shall exercise exclusive original jurisdiction in all cases involving: a. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII, Book II of the Revised Penal Code, where one or more of the accused are officials occupying the following positions in the government, whether in a permanent, acting or interim capacity, at the time of the commission of the offense: xxx xxx xxx (d.) Philippine army and air force colonels, naval captains, and all officers of higher rank; xxx xxx xxx It can be deduced from said provisions of law that both the nature of the offense and the position occupied by the accused are conditions sine qua non before the Sandiganbayan can validly take cognizance of the case. In the instant case, while petitioner is charged with violation of Section 3(e) of R.A. No. 3019, as amended, which is an offense covered by Section 4 of the Sandiganbayan Law, his position as Lieutenant Commander (LCMDR.) of the Philippine Navy is a rank lower than naval captains and all officer of higher rank as prescribed under sub-paragraph (d) of Section 4. Under the Promotions System in the Armed Forces of the Philippines, the hierarchy in the position/rank of the officers of the Philippine Navy is as follows: 1. Admiral 2. Vice-Admiral 3. Rear Admiral 4. Commodore 5. Captain 6. Commander

7. Lieutenant Commander 8. Lieutenant Senior Grade 9. Lieutenant Junior Grade 10. Ensign Thus, not falling within the rank requirement stated in Section 4, exclusive jurisdiction over petitioner is vested in the regular courts pursuant to the provision of Section 4 of the Sandiganbayan Law, as amended by R.A. No. 8249, which states that In cases where none of the accused are occupying positions corresponding to Salary Grade 27 or higher, as prescribed in the said Republic Act No. 6758, or military and PNP officers mentioned above, exclusive original jurisdiction thereof shall be vested in the proper regional trial court, metropolitan trial court, municipal trial court, and municipal circuit trial court, as the case may be, pursuant to their respective jurisdictions as provided in Batas Pambansa Blg. 129, as amended. Consequently, it is the regional trial court that has jurisdiction over the offense charged. Under Section 9 of R. A. No. 3019, as amended, the commission of any of the unlawful acts or omissions enumerated in Sections 3, 4, 5 and 6 of this Act shall be punished with imprisonment for not less than SIX YEARS AND ONE MONTH or FIFTEEN YEARS. The indictment against petitioner cannot fall within the jurisdiction of the metropolitan trial courts, municipal trial courts and municipal circuit trial courts because under Republic Act No. 7691 which amended certain provisions of Batas Pambansa Blg. 129 by expanding the jurisdiction of said inferior courts, they exercise exclusive original jurisdiction over all offenses punishable with imprisonment not exceeding six (6) years irrespective of the amount of fine, and regardless of other imposable accessory or other penalties, including the civil liability arising from such offenses or predicated thereon, irrespective of kind, nature, value or amount thereof x x x. This draws the case into the domain of the regional trial courts which, under Section 20 of Batas Pambansa Blg. 129, shall exercise exclusive original jurisdiction in all criminal cases not within the exclusive jurisdiction of any court, tribunal or body, except those now falling under the exclusive and concurrent jurisdiction of the Sandiganbayan which shall hereafter be exclusively taken cognizance of by the latter. It is not correct that under R.A. No. 7055, the courts-martial retain jurisdiction over petitioners case since the offense for which he is charged is service-connected. The second paragraph of Section 1 of R. A. No. 7055 limits the nature of service-connected crimes or offenses to those [14] defined only in Articles 54 to 70, 72 to 92 and 95 to 97 of Commonwealth Act No. 408, as amended, to wit: Fraudulent enlistment, making Unlawful Enlistment, False Muster, False Returns, Desertion, Advising or Aiding Another to Desert, Entertaining a Deserter, Absence Without Leave, Disrespect towards the President, Vice-President and National Assembly, Disrespect toward Superior Officer, Insubordinate Conduct toward NonCommissioned Officer, Mutiny or Sedition, Failure to Suppress Mutiny or Sedition, Quarrels; Frays; Disorders, Breaking an Arrest or Escaping from Confinement, Refusal to Receive and Keep Prisoners, Failure to make a Report of Prisoners Received, Releasing prisoners without proper authority, Failure to Deliver offenders to Civil Authorities, Misbehavior Before the Enemy, Subordinates Compelling Commander to Surrender, Improper Use of Countersign, Forcing a Safeguard, Neglect or Wrongful Appropriation of Captured Property, Dealing in Captured or Abandoned Property, Relieving, Corresponding with, or Aiding the Enemy, Spies, Damage/Wrongful Disposition of Military Property, Waste or Unlawful Disposition of Military Property, Drunk on Duty, Misbehavior of Sentinel, Personal Interest in Sale of Provisions, Intimidation of Persons Bringing Provisions, Good Order to be Maintained and Wrong Redressed, Provoking Speeches or Gestures, Dueling, Fraud against the Government Affecting Matters and Equipment, Conduct Unbecoming an Officer and Gentleman, and All Disorders and Neglects to the Prejudice of Good Order and Military Discipline and All Conduct of a Nature to Bring Discredit Upon the Military Services. None of these offenses relates to acts or omissions constituting a violation of Section 3 (e), R.A. No. 3019, as amended which reads: Sec. 3. Corrupt practices of public officers. In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful: xxx (e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions. In this connection, it is the prosecutor, not the Ombudsman, who has the authority to file the corresponding information/s against petitioner [15] in the regional trial court. The Ombudsman exercises prosecutorial powers only in cases cognizable by the Sandiganbayan. WHEREFORE, the Resolution of the Sandiganbayan dated June 10, 1992 in Criminal Cases Nos. 16905-16910, is hereby ANNULLED and SET ASIDE. In lieu thereof, the Sandiganbayan is ordered to dismiss Criminal Cases Nos. 16905-16910, and to inform this Court of the action taken hereon within fifteen (15) days from finality of this decision. No costs. SO ORDERED.