Today Is Tuesday, March 22, 2016

3/22/2016
G.R.No.101837
TodayisTuesday,March22,2016
RepublicofthePhilippines
SUPREMECOURT
Manila
ENBANC
G.R.No.101837February11,1992
ROLITOGOyTAMBUNTING,petitioner,
vs.
THECOURTOFAPPEALS,THEHON.BENJAMINV.PELAYO,PresidingJudge,Branch168,RegionalTrial
Court,NCJRPasig,M.M.,andPEOPLEOFTHEPHILIPPINES,respondents.
FELICIANO,J.:
AccordingtothefindingsoftheSanJuanPoliceintheirInvestigationReport, 1 on 2 July 1991, Eldon Maguan was
driving his car along Wilson St., San Juan, Metro Manila, heading towards P. Guevarra St. Petitioner entered Wilson St.,
whereitisaonewaystreetandstartedtravellingintheoppositeor"wrong"direction.AtthecornerofWilsonandJ.Abad
Santos Sts., petitioner's and Maguan's cars nearly bumped each other. Petitioner alighted from his car, walked over and
shotMaguaninsidehiscar.Petitionerthenboardedhiscarandleftthescene.Asecurityguardatanearbyrestaurantwas
abletotakedownpetitioner'scarplatenumber.Thepolicearrivedshortlythereafteratthesceneoftheshootingandthere
retrievedanemptyshellandoneroundofliveammunitionfora9mmcaliberpistol.VerificationattheLandTransportation
OfficeshowedthatthecarwasregisteredtooneElsaAngGo.
Thefollowingday,thepolicereturnedtothesceneoftheshootingtofindoutwherethesuspecthadcomefrom
they were informed that petitioner had dined at Cravings Bake Shop shortly before the shooting. The police
obtained a facsimile or impression of the credit card used by petitioner from the cashier of the bake shop.The
security guard of the bake shop was shown a picture of petitioner and he positively identified him as the same
person who had shot Maguan. Having established that the assailant was probably the petitioner, the police
launchedamanhuntforpetitioner.
On8July1991,petitionerpresentedhimselfbeforetheSanJuanPoliceStationtoverifynewsreportsthathewas
being hunted by the police he was accompanied by two (2) lawyers. The police forthwith detained him. An
eyewitness to the shooting, who was at the police station at that time, positively identified petitioner as the
gunman.Thatsameday,thepolicepromptlyfiledacomplaintforfrustratedhomicide 2 against petitioner with the
Office of the Provincial Prosecutor of Rizal. First Assistant Provincial Prosecutor Dennis Villa Ignacio ("Prosecutor")
informedpetitioner,inthepresenceofhislawyers,thathecouldavailhimselfofhisrighttopreliminaryinvestigationbutthat
he must first sign a waiver of the provisions ofArticle 125 of the Revised Penal Code. Petitioner refused to execute any
suchwaiver.
On9July1991,whilethecomplaintwasstillwiththeProsecutor,andbeforeaninformationcouldbefiledincourt,
thevictim,EldonMaguan,diedofhisgunshotwound(s).
Accordingly, on 11 July 1991, the Prosecutor, instead of filing an information for frustrated homicide, filed an
informationformurder 3beforetheRegionalTrialCourt.Nobailwasrecommended.Atthebottomoftheinformation,the
Prosecutorcertifiedthatnopreliminaryinvestigationhadbeenconductedbecausetheaccuseddidnotexecuteandsigna
waiveroftheprovisionsofArticle125oftheRevisedPenalCode.
Intheafternoonofthesameday,11July1991,counselforpetitionerfiledwiththeProsecutoranomnibusmotion
for immediate release and proper preliminary investigation, 4 alleging that the warrantless arrest of petitioner was
unlawful and that no preliminary investigation had been conducted before the information was filed. Petitioner also prayed
thathebereleasedonrecognizanceoronbail.ProvincialProsecutorMauroCastro,actingontheomnibusmotion,wroteon
the last page of the motion itself that he interposed no objection to petitioner being granted provisional liberty on a cash
bondofP100,000.00.
On 12 July 1991, petitioner filed an urgent exparte motion for special raffle 5 in order to expedite action on the
Prosecutor'sbailrecommendation.ThecasewasraffledtothesalaofrespondentJudge,who,onthesamedate,approved
thecashbond6postedbypetitionerandorderedhisrelease.7Petitionerwasinfactreleasedthatsameday.
On 16 July 1991, the Prosecutor filed with the Regional Trial Court a motion for leave to conduct preliminary
investigation8 and prayed that in the meantime all proceedings in the court be suspended. He stated that petitioner had
filed before the Office of the Provincial Prosecutor of Rizal an omnibus motion for immediate release and preliminary
http://www.lawphil.net/judjuris/juri1992/feb1992/gr_101837_1992.html
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investigation,whichmotionhadbeengrantedbyProvincialProsecutorMauroCastro,whoalsoagreedtorecommendcash
bailofP100,000.00.TheProsecutorattachedtothemotionforleaveacopyofpetitioner'somnibusmotionof11July1991.
Also on 16 July 1991, the trial court issued an Order 9 granting leave to conduct preliminary investigation and
cancelling the arraignment set for 15 August 1991 until after the prosecution shall have concluded its preliminary
investigation.
On17July1991,however,respondentJudgemotuproprioissuedanOrder, 10embodying the following: (1) the 12

July 1991 Order which granted bail was recalled petitioner was given 48 hours from receipt of the Order to surrender
himself(2)the16July1991Orderwhichgrantedleavetotheprosecutortoconductpreliminaryinvestigationwasrecalled
and cancelled (3) petitioner's omnibus motion for immediate release and preliminary investigation dated 11 July 1991 was
treatedasapetitionforbailandsetforhearingon23July1991.
On 19 July 1991, petitioner filed a petition for certiorari, prohibition and mandamus before the Supreme Court
assailing the 17 July 1991 Order, contending that the information was null and void because no preliminary
investigation had been previously conducted, in violation of his right to due process. Petitioner also moved for
suspension of all proceedings in the case pending resolution by the Supreme Court of his petition this motion
was,however,deniedbyrespondentJudge.
On23July1991,petitionersurrenderedtothepolice.
ByaResolutiondated24July1991,thisCourtremandedthepetitionforcertiorari,prohibitionandmandamusto
theCourtofAppeals.
On16August1991,respondentJudgeissuedanorderinopencourtsettingthearraignmentofpetitioneron23
August1991.
On19August1991,petitionerfiledwiththeCourtofAppealsamotiontorestrainhisarraignment.
On 23August 1991, respondent judge issued a Commitment Order directing the Provincial Warden of Rizal to
admitpetitionerintohiscustodyattheRizalProvincialJail.Onthesamedate,petitionerwasarraigned.Inview,
however,ofhisrefusaltoenteraplea,thetrialcourtenteredforhimapleaofnotguilty.TheTrialcourtthenset
thecriminalcaseforcontinuoushearingson19,24and26Septemberon2,3,11and17Octoberandon7,8,
14,15,21and22November1991.11
On 27August 1991, petitioner filed a petition for habeascorpus 12 in the Court of Appeals. He alleged that in view of public
respondent'sfailuretojoinissuesinthepetitionforcertiorariearlierfiledbyhim,afterthelapseofmorethanamonth,thusprolonginghisdetention,hewas
entitledtobereleasedonhabeascorpus.
On30August1991,theCourtofAppealsissuedthewritof habeascorpus. 13The petition for certiorari, prohibition

andmandamus,ontheonehand,andthepetitionforhabeascorpus,upontheother,weresubsequentlyconsolidatedinthe
CourtofAppeals.
The Court of Appeals, on 2 September 1991, issued a resolution denying petitioner's motion to restrain his
arraignmentonthegroundthatthatmotionhadbecomemootandacademic.
On19September1991,trialofthecriminalcasecommencedandtheprosecutionpresenteditsfirstwitness.
On23September1991,theCourtofAppealsrenderedaconsolidateddecision 14dismissingthetwo(2)petitions,
onthefollowinggrounds:
a. Petitioner's warrantless arrest was valid because the offense for which he was arrested and
chargedhadbeen"freshlycommitted."Hisidentityhadbeenestablishedthroughinvestigation.Atthe
time he showed up at the police station, there had been an existing manhunt for him. During the
confrontationattheSanJuanPoliceStation,onewitnesspositivelyidentifiedpetitionerastheculprit.
b.Petitioner'sactofpostingbailconstitutedwaiverofanyirregularityattendinghisarrest.Hewaived
hisrighttopreliminaryinvestigationbynotinvokingitproperlyandseasonablyundertheRules.
c.Thetrialcourtdidnotabuseitsdiscretionwhenitissuedthe17July1991Orderbecausethetrial
courthadtheinherentpowertoamendandcontrolitsprocessessoastomakethemconformableto
lawandjustice.
d. Since there was a valid information for murder against petitioner and a valid commitment order
(issuedbythetrialjudgeafterpetitionersurrenderedtotheauthoritieswherebypetitionerwasgiven
tothecustodyoftheProvincialWarden),thepetitionforhabeascorpuscouldnotbegranted.
On3October1991,theprosecutionpresentedthree(3)morewitnessesatthetrial.Counselforpetitioneralso
fileda"WithdrawalofAppearance"15withthetrialcourt,withpetitioner'sconformity.
On4October1991,thepresentPetitionforReviewonCertiorariwasfiled.On14October1991,theCourtissued
aResolutiondirectingrespondentJudgetoholdinabeyancethehearingofthecriminalcasebelowuntilfurther
ordersfromthisCourt.
InthisPetitionforReview,two(2)principalissuesneedtobeaddressed:first,whetherornotalawfulwarrantless
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arresthadbeeneffectedbytheSanJuanPoliceinrespectofpetitionerGoandsecond,whetherpetitionerhad
effectivelywaivedhisrighttopreliminaryinvestigation.Weconsidertheseissuesseriatim.
In respect of the first issue, the Solicitor General argues that under the facts of the case, petitioner had been
validlyarrestedwithoutwarrant.Sincepetitioner'sidentityasthegunmanwhohadshotEldonMaguanon2July
1991hadbeensufficientlyestablishedbypolicework,petitionerwasvalidlyarrestedsix(6)dayslaterattheSan
JuanPoliceStation.TheSolicitorGeneralinvokesNazarenov.StationCommander,etc.,etal.,16oneoftheseven
(7)casesconsolidatedwithIntheMatterofthePetitionforHabeasCorpusofRobertoUmil,etc.,v.Ramos,etal.17 where
amajorityoftheCourtupheldawarranteesarrestasvalidalthougheffectedfourteen(14)daysafterthekillinginconnection
withwhichNazarenohadbeenarrested.Accordingly,intheviewoftheSolicitorGeneral,theprovisionsofSection7,Rule
112oftheRulesofCourtwereapplicableandbecausepetitionerhaddeclinedtowaivetheprovisionsofArticle125ofthe
Revised Penal Code, the Prosecutor was legally justified in filing the information for murder even without preliminary
investigation.
On the other hand, petitioner argues that he was not lawfully arrested without warrant because he went to the
police station six (6) days after the shooting which he had allegedly perpetrated. Thus, petitioner argues, the
crimehadnotbeen"justcommitted"atthetimethathewasarrested.Moreover,noneofthepoliceofficerswho
arrested him had been an eyewitness to the shooting of Maguan and accordingly none had the "personal
knowledge"requiredforthelawfulnessofawarranteesarrest.Sincetherehadbeennolawfulwarrantlessarrest.
Section 7, Rule 112 of the Rules of Court which establishes the only exception to the right to preliminary
investigation,couldnotapplyinrespectofpetitioner.
TherelianceofbothpetitionerandtheSolicitorGeneraluponUmilv.Ramosis,inthecircumstancesofthiscase,
misplaced.InUmilv.Ramos,byaneighttosixvote,theCourtsustainedthelegalityofthewarrantlessarrestsof
petitionersmadefromone(1)tofourteendaysaftertheactualcommissionoftheoffenses,uponthegroundthat
such offenses constituted "continuing crimes." Those offenses were subversion, membership in an outlawed
organization like the New People'sArmy, etc. In the instant case, the offense for which petitioner was arrested
was murder, an offense which was obviously commenced and completed at one definite location in time and
space.NoonehadpretendedthatthefatalshootingofMaguanwasa"continuingcrime."
Secondly,wedonotbelievethatthewarrantees"arrest"ordetentionofpetitionerintheinstantcasefallswithin
thetermsofSection5ofRule113ofthe1985RulesonCriminalProcedurewhichprovidesasfollows:
Sec. 5 Arrest without warrant when lawful. A peace officer or a private person may, without
warrant,arrestaperson:
(a) When, in his presence, the person to be arrested has committed, is actually committing, or is
attemptingtocommitanoffense
(b) When an offense has in fact just been committed, and he has personal knowledge of facts
indicatingthatthepersontobearrestedhascommitteditand
(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or
place where he is serving final judgment or temporarily confined while his case is pending, or has
escapedwhilebeingtransferredfromoneconfinementtoanother.
Incasesfallingunderparagraphs(a)and(b)hereof,thepersonarrestedwithoutawarrantshallbe
forthwithdeliveredtothenearestpolicestationorjail,andheshallbeproceedagainstinaccordance
withRule112,Section7.
Petitioner's"arrest"tookplacesix(6)daysaftertheshootingofMaguan.The"arresting"officersobviouslywere
notpresent,withinthemeaningofSection5(a),atthetimepetitionerhadallegedlyshotMaguan.Neithercould
the"arrest"effectedsix(6)daysaftertheshootingbereasonablyregardedaseffected"when[theshootinghad]
infactjustbeencommitted"withinthemeaningofSection5(b).Moreover,noneofthe"arresting"officershadany
"personalknowledge"offactsindicatingthatpetitionerwasthegunmanwhohadshotMaguan.Theinformation
uponwhichthepoliceactedhadbeenderivedfromstatementsmadebyallegedeyewitnessestotheshooting
one stated that petitioner was the gunman another was able to take down the alleged gunman's car's plate
numberwhichturnedouttoberegisteredinpetitioner'swife'sname.Thatinformationdidnot,however,constitute
"personalknowledge."18
ItisthuscleartotheCourtthattherewasnolawfulwarrantlessarrestofpetitionerwithinthemeaningofSection5
ofRule113.ItiscleartoothatSection7ofRule112,whichprovides:
Sec.7Whenaccusedlawfullyarrestedwithoutwarrant.Whenapersonislawfullyarrestedwithout
awarrantforanoffensecognizablebytheRegionalTrialCourtthecomplaintorinformationmaybe
filedbytheoffendedparty,peaceofficerorfiscalwithoutapreliminaryinvestigationhavingbeenfirst
conducted,onthebasisoftheaffidavitoftheoffendedpartyorarrestingofficeorperson
However, before the filing of such complaint or information, the person arrested may ask for a
preliminaryinvestigationbyaproperofficerinaccordancewiththisRule,buthemustsignawaiverof
theprovisionsofArticle125oftheRevisedPenalCode,asamended,withtheassistanceofalawyer
andincaseofnonavailabilityofalawyer,aresponsiblepersonofhischoice.Notwithstandingsuch
waiver, he may apply for bail as provided in the corresponding rule and the investigation must be
terminatedwithinfifteen(15)daysfromitsinception.
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Ifthecasehasbeenfiledincourtwithoutapreliminaryinvestigationhavingbeenfirstconducted,the
accusedmay within five (5) days from the time he learns of the filing of the information, ask for a
preliminary investigation with the same right to adduce evidence in his favor in the manner
prescribedinthisRule.(Emphasissupplied)
is also not applicable. Indeed, petitioner was not arrested at all. When he walked into San Juan Police Station,
accompaniedbytwo(2)lawyers,heinfactplacedhimselfatthedisposalofthepoliceauthorities.Hedidnotstate
that he was "surrendering" himself, in all probability to avoid the implication he was admitting that he had slain
EldonMaguanorthathewasotherwiseguiltyofacrime.Whenthepolicefiledacomplaintforfrustratedhomicide
with the Prosecutor, the latter should have immediately scheduled a preliminary investigation to determine
whether there was probable cause for charging petitioner in court for the killing of Eldon Maguan. Instead, as
notedearlier,theProsecutorproceedundertheerroneoussuppositionthatSection7ofRule112wasapplicable
andrequiredpetitionertowaivetheprovisionsofArticle125oftheRevisedPenalCodeasaconditionforcarrying
outapreliminaryinvestigation.Thiswassubstantiveerror,forpetitionerwasentitledtoapreliminaryinvestigation
and that right should have been accorded him without any conditions. Moreover, since petitioner had not been
arrested,withorwithoutawarrant,hewasalsoentitledtobereleasedforthwithsubjectonlytohisappearingat
thepreliminaryinvestigation.
Turningtothesecondissueofwhetherornotpetitionerhadwaivedhisrighttopreliminaryinvestigation,wenote
that petitioner had from the very beginning demanded that a preliminary investigation be conducted.As earlier
pointed out, on the same day that the information for murder was filed with the RegionalTrial Court, petitioner
filed with the Prosecutor an omnibus motion for immediate release and preliminary investigation. The Solicitor
GeneralcontendsthatthatomnibusmotionshouldhavebeenfiledwiththetrialcourtandnotwiththeProsecutor,
andthatthepetitionershouldaccordinglybeheldtohavewaivedhisrighttopreliminaryinvestigation.Wedonot
believe that waiver of petitioner's statutory right to preliminary investigation may be predicated on such a slim
basis.ThepreliminaryinvestigationwastobeconductedbytheProsecutor,notbytheRegionalTrialCourt.Itis
truethatatthetimeoffilingofpetitioner'somnibusmotion,theinformationformurderhadalreadybeenfiledwith
theRegionalTrialCourt:itisnotclearfromtherecordwhetherpetitionerwasawareofthisfactatthetimehis
omnibusmotionwasactuallyfiledwiththeProsecutor.InCrespov.Mogul,19thisCourtheld:
Thepreliminaryinvestigationconductedbythefiscalforthepurposeofdeterminingwhetheraprima
faciecase exists to warranting the prosecution of the accused is terminated upon the filing of the
informationinthepropercourt.Inturn,asabovestated,thefilingofsaidinformationsetsinmotion
the criminal action against the accused in Court. Should the fiscal find it proper to conduct a
reinvestigationofthecase,atsuchstage,thepermissionoftheCourtmustbesecured.After such
reinvestigation the finding and recommendations of the fiscal should be submitted to the Court for
appropriate action. While it is true that the fiscal has the quasijudicial discretion to determine
whether or not a criminal case should be filed in court or not, once the case had already been
brought to Court whatever disposition the fiscal may feel should be proper in the case thereafter
shouldbeaddressedfortheconsiderationoftheCourt.Theonlyqualificationisthattheactionofthe
Courtmustnotimpairthesubstantialrightsoftheaccused.,ortherightofthePeopletodueprocess
oflaw.
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The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any
dispositionofthecase[such]asitsdismissalortheconvictionoracquittaloftheaccusedrestsinthe
sounddiscretionoftheCourt.Althoughthefiscalretainsthedirectionandcontroloftheprosecution
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. . . . 20 (Citations
omittedemphasissupplied)
Nonetheless,sincepetitionerinhisomnibusmotionwasaskingforpreliminaryinvestigationandnotfora
reinvestigation(Crespov.Mogulinvolvedareinvestigation),andsincetheProsecutorhimselfdidfilewith
the trial court, on the 5th day after filing the information for murder, a motion for leave to conduct
preliminaryinvestigation(attachingtohismotionacopyofpetitioner'somnibusmotion),weconcludethat
petitioner'somnibusmotionwasineffectfiledwiththetrialcourt.Whatwascrystalclearwasthatpetitioner
didaskforapreliminaryinvestigationontheverydaythattheinformationwasfiledwithoutsuchpreliminary
investigation,andthatthetrialcourtwasfive(5)dayslaterapprisedofthedesireofthepetitionerforsuch
preliminaryinvestigation.Finally,thetrialcourtdidinfactgranttheProsecutor'sprayerforleavetoconduct
preliminaryinvestigation.Thus,evenonthe(mistaken)suppositionapparentlymadebytheProsecutorthat
Section 7 of Rule 112 of the Revised Court was applicable, the 5day reglementary period in Section 7,
Rule112mustbeheldtohavebeensubstantiallycompliedwith.
We believe and so hold that petitioner did not waive his right to a preliminary investigation. While that right is
statutory rather than constitutional in its fundament, since it has in fact been established by statute, it is a
component part of due process in criminal justice. 21 The right to have a preliminary investigation conducted before
being bound over to trial for a criminal offense and hence formally at risk of incarceration or some other penalty, is not a
mere formal or technical right it is a substantive right. The accused in a criminal trial is inevitably exposed to prolonged
anxiety,aggravation,humiliation,nottospeakofexpensetherighttoanopportunitytoavoidaprocesspainfultoanyone
save,perhaps,tohardenedcriminals,isavaluableright.Todenypetitioner'sclaimtoapreliminaryinvestigationwouldbeto
deprivehimthefullmeasureofhisrighttodueprocess.
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The question may be raised whether petitioner still retains his right to a preliminary investigation in the instant
case considering that he was already arraigned on 23 August 1991. The rule is that the right to preliminary
investigationiswaivedwhentheaccusedfailstoinvokeitbeforeoratthetimeofenteringapleaatarraignment.
22Intheinstantcase,petitionerGohadvigorouslyinsistedonhisrighttopreliminaryinvestigationbefore his arraignment.
At the time of his arraignment, petitioner was already before the Court ofAppeals on certiorari, prohibition and mandamus
preciselyaskingforapreliminaryinvestigationbeforebeingforcedtostandtrial.
Again,inthecircumstancesofthiscase,wedonotbelievethatbypostingbailpetitionerhadwaivedhisrightto
preliminaryinvestigation.InPeoplev.Selfaison,23wedidholdthatappellantstherehadwaivedtheirrighttopreliminary
investigation because immediately after their arrest, they filed bail and proceeded to trial "without previously claiming that
they did not have the benefit of a preliminary investigation." 24 In the instant case, petitioner Go asked for release on
recognizanceoronbailandforpreliminaryinvestigationinoneomnibusmotion.Hehadthusclaimedhisrighttopreliminary
investigationbeforerespondentJudgeapprovedthecashbondpostedbypetitionerandorderedhisreleaseon12July1991.
Accordingly, we cannot reasonably imply waiver of preliminary investigation on the part of petitioner. In fact, when the
Prosecutorfiledamotionincourtaskingforleavetoconductpreliminaryinvestigation,heclearlyifimpliedlyrecognizedthat
petitioner'sclaimtopreliminaryinvestigationwasalegitimateone.
We would clarify, however, that contrary to petitioner's contention the failure to accord preliminary investigation,
whileconstitutingadenialoftheappropriateandfullmeasureofthestatutoryprocessofcriminaljustice,didnot
impairthevalidityoftheinformationformurdernoraffectthejurisdictionofthetrialcourt.25
It must also be recalled that the Prosecutor had actually agreed that petitioner was entitled to bail. This was
equivalenttoanacknowledgmentonthepartoftheProsecutorthattheevidenceofguilttheninhishandswas
not strong.Accordingly, we consider that the 17 July 1991 order of respondent Judge recalling his own order
granting bail and requiring petitioner to surrender himself within fortyeight (48) hours from notice, was plainly
arbitraryconsideringthatnoevidenceatallandcertainlynoneworadditionalevidencehadbeensubmitted
torespondentJudgethatcouldhavejustifiedtherecallofhisorderissuedjustfive(5)daysbefore.Itfollowsthat
petitionerwasentitledtobereleasedonbailasamatterofright.
ThefinalquestionwhichtheCourtmustfaceisthis:howdoesthefactthat,intheinstantcase,trialonthemerits
has already commenced, the Prosecutor having already presented four (4) witnesses, impact upon, firstly,
petitioner's right to a preliminary investigation and, secondly, petitioner's right to be released on bail? Does he
continuetobeentitledtohaveapreliminaryinvestigationconductedinrespectofthechargeagainsthim?Does
petitionerremainentitledtobereleasedonbail?
Turningfirsttothematterofpreliminaryinvestigation,weconsiderthatpetitionerremainsentitledtoapreliminary
investigationalthoughtrialonthemeritshasalreadybegan.Trialonthemeritsshouldbesuspendedorheldin
abeyanceandapreliminaryinvestigationforthwithaccordedtopetitioner. 26 It is true that the Prosecutor might, in
viewoftheevidencethathemayatthistimehaveonhand,concludethatprobablecauseexistsupontheotherhand,the
Prosecutorconceivablycouldreachtheconclusionthattheevidenceonhanddoesnotwarrantafindingofprobablecause.
Inanyevent,theconstitutionalpointisthatpetitionerwasnot accorded what he was entitled to by way of procedural due
process.27Petitionerwasforcedtoundergoarraignmentandliterallypushedtotrialwithoutpreliminaryinvestigation,with
extraordinary haste, to the applause from the audience that filled the courtroom. If he submitted to arraignment at trial,
petitionerdidso"kickingandscreaming,"inamannerofspeaking.Duringtheproceedingsheldbeforethetrialcourton23
August 1991, the date set for arraignment of petitioner, and just before arraignment, counsel made very clear petitioner's
vigorous protest and objection to the arraignment precisely because of the denial of preliminary investigation. 28 So
energeticanddeterminedwerepetitioner'scounsel'sprotestsandobjectionsthatanobviouslyangeredcourtandprosecutor
dared him to withdraw or walkout, promising to replace him with counsel de oficio. During the trial, before the prosecution
called its first witness, petitioner through counsel once again reiterated his objection to going to trial without preliminary
investigation:petitioner'scounselmadeofrecordhis"continuingobjection."29Petitionerhadpromptlygonetotheappellate
court on certiorari and prohibition to challenge the lawfulness of the procedure he was being forced to undergo and the
lawfulness of his detention.30 If he did not walk out on the trial, and if he crossexamined the prosecution's witnesses, it
wasbecausehewasextremelyloathtoberepresentedbycounseldeoficioselectedbythetrialjudge,andtoruntheriskof
beingheldtohavewaivedalsohisrighttousewhatisfrequentlytheonlytestoftruthinthejudicialprocess.
Inrespectofthematterofbail,wesimilarlybelieveandsoholdthatpetitionerremainsentitledtobereleasedon
bailasamatterofright.Shouldtheevidencealreadyofrecordconcerningpetitioner'sguiltbe,inthereasonable
beliefoftheProsecutor,strong,theProsecutormaymoveinthetrialcourtforcancellationofpetitioner'sbail.It
wouldthenbeuptothetrialcourt,afteracarefulandobjectiveassessmentoftheevidenceonrecord,tograntor
denythemotionforcancellationofbail.
Toreachanyotherconclusionshere,thatis,toholdthatpetitioner'srightstoapreliminaryinvestigationandto
bail were effectively obliterated by evidence subsequently admitted into the record would be to legitimize the
deprivationofdueprocessandtopermittheGovernmenttobenefitfromitsownwrongorculpableomissionand
effectivelytodiluteimportantrightsofaccusedpersonswellnightothevanishingpoint.Itmaybethattorequire
the State to accord petitioner his rights to a preliminary investigation and to bail at this point, could turn out
ultimately to be largely a ceremonial exercise. But the Court is not compelled to speculate.And, in any case, it
would not be idle ceremony rather, it would be a celebration by the State of the rights and liberties of its own
peopleandareaffirmationofitsobligationanddeterminationtorespectthoserightsandliberties.
ACCORDINGLY,theCourtresolvedtoGRANTthePetitionforReviewon Certiorari.TheOrderofthetrialcourt
dated 17 July 1991 is hereby SETASIDE and NULLIFIED, and the Decision of the Court ofAppeals dated 23
September1991herebyREVERSED.
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TheOfficeoftheProvincialProsecutorisherebyORDEREDtoconductforthwithapreliminaryinvestigationofthe
chargeofmurderagainstpetitionerGo,andtocompletesuchpreliminaryinvestigationwithinaperiodoffifteen
(15) days from commencement thereof. The trial on the merits of the criminal case in the Regional Trial Court
shallbeSUSPENDEDtoawaittheconclusionofthepreliminaryinvestigation.
Meantime, petitioner is hereby ORDERED released forthwith upon posting of a cash bail bond of One Hundred
ThousandPesos(P100,000.00).Thisreleaseshallbewithoutprejudicetoanylawfulorderthatthetrialcourtmay
issue, should the Office of the Provincial Prosecutor move for cancellation of bail at the conclusion of the
preliminaryinvestigation.
Nopronouncementastocosts.ThisDecisionisimmediatelyexecutory.
SOORDERED.
Narvasa,C.J.,Bidin,Medialdea,RomeroandNocon,JJ.,concur.
SeparateOpinions
GUTIERREZ,JR.,J.,concurring:
IconcurinthemajoritydecisionpennedbyMr.JusticeFlorentinoP.Felicianobutamatalossforreasonswhyan
experienced Judge should insist on proceeding to trial in a sensational murder case without preliminary
investigation inspite of the vigorous and continued objection and reservation of rights of the accused and
notwithstanding the recommendations of the Prosecutor that those rights must be respected. If the Court had
faithfullyfollowedtheRules,trialwouldhaveproceededsmoothlyandiftheaccusedisreallyguilty,thenhemay
havebeenconvictedbynow.Asitis,thecasehastogobacktosquareone.
IagreewithJusticeIsaganiCruz"thatthetrialcourthas(apparently)beenmovedbyadesiretocatertopublic
opinion to the detriment of the impartial administration of justice." Mass media has its duty to fearlessly but
faithfullyinformthepublicabouteventsandpersons.However,whenacasehasreceivedwideandsensational
publicity,thetrialcourtshouldbedoublycarefulnotonlytobefairandimpartialbutalsotogivetheappearanceof
completeobjectivityinitshandlingofthecase.
TheneedforatrialcourttofollowtheRulesandtobefair,impartial,andpersistentingettingthetruefactsofa
caseispresentinallcasesbutitisparticularlyimportantiftheaccusedisindigentmoreso,ifheisoneofthose
unfortunateswhoseemtospendmoretimebehindbarsthanoutside.Unliketheaccusedinthiscasewhoenjoys
theassistanceofcompetentcounsel,apoordefendantconvictedbywideandunfavorablemediacoveragemay
be presumed guilty before trial and be unable to defend himself properly. Hence, the importance of the court
alwaysfollowingtheRules.
WhileconcurringwithJusticeFeliciano'sponencia,IamconstrainedtoaddtheforegoingobservationsbecauseI
feeltheyformanintegralpartoftheCourt'sdecision.
CRUZ,J.,concurring:
I was one of the members of the Court who initially felt that the petitioner had waived the right to preliminary
investigation because he freely participated in his trial and his counsel even crossexamined the prosecution
witnesses.Acloserstudyoftherecord,however,particularlyofthetranscriptoftheproceedingsfootnotedinthe
ponencia, reveals that he had from the start demanded a preliminary investigation and that his counsel had
reluctantlyparticipatedinthetrialonlybecausethecourtthreatenedtoreplacehimwithacounseldeoficioifhe
didnot.Underthecircumstances,Iamconvincedthattherewasnowaiver.Thepetitionerwasvirtuallycompelled
to go to trial. Such compulsion and unjustified denial of a clear statutory right of the petitioner vitiated the
proceedingsasviolativeofproceduraldueprocess.
Itistruethattherulingwelaydownherewilltakethecasebacktosquareone,sotospeak,butthatisnotthe
petitioner's fault. He had the right to insist that the procedure prescribed by the Rules of Court be strictly
observed. The delay entailed by the procedural lapse and the attendant expense imposed on the Government
andthedefendantmustbelaidatthedoorofthetrialjudgeforhisprecipitateandillegalaction.
It appears that the trial court has been moved by a desire to cater to public opinion to the detriment of the
impartial administration of justice. The petitioner as portrayed by the media is not exactly a popular person.
Nevertheless, the trial court should not have been influenced by this irrelevant consideration, remembering
insteadthatitsonlyguidewasthemandateofthelaw.
GRIOAQUINO,J.,dissenting:
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IregretthatIcannotagreewiththemajorityopinioninthiscase.Atthispoint,afterfour(4)prosecutionwitnesses
have already testified, among them an eyewitness who identified the accused as the gunman who shot Eldon
Maguaninsidehiscarincoldblood,andasecurityguardwhoidentifiedtheplatenumberofthegunman'scar,I
donotbelievethatthereisstillneedtoconductapreliminaryinvestigationthesolepurposeofwhichwouldbeto
ascertainifthereissufficientgroundtobelievethatacrimewascommitted(whichthepetitionerdoesnotdispute)
andthathe(thepetitioner)isprobablyguiltythereof(whichtheprosecutor,byfilingtheinformationagainsthim,
presumablybelievedtobeso).
In the present stage of the presentation of the prosecution's evidence, to return the case to the Prosecutor to
conduct a preliminary investigation under Rule 112 of the 1985 Rule on Criminal Procedure would be
supererogatory.
Thiscasedidnotsufferfromalackofpreviousinvestigation.Diligentpolicework,withamplemediacoverage,led
totheidentificationofthesuspectwho,seven(7)daysaftertheshooting,appearedattheSanJuanpolicestation
to verify news reports that he was the object of a police manhunt. Upon entering the station, he was positively
identified as the gunman by an eyewitness who was being interrogated by the police to ferret more clues and
detailsaboutthecrime.Thepolicethereuponarrestedthepetitionerandonthesameday,July8,1991,promptly
filedwiththeProvincialProsecutorofRizal,acomplaintforfrustratedhomicideagainsthim.Asthevictimdiedthe
next day, July 9, 1991, before an information could be filed, the FirstAssistant Prosecutor, instead of filing an
informationforfrustratedhomicide,filedaninformationformurderonJuly11,1991intheRegionalTrialCourt,
withnobailrecommended.
However, the Provincial Prosecutor, acting on the petitioner's omnibus motion for preliminary investigation and
release on bail (which was erroneously filed with his office instead of the court), recommended a cash bond of
P100,000forhisrelease,andsubmittedtheomnibusmotiontothetrialcourtforresolution.
RespondentJudgeBenjaminPelayomusthaverealizedhisimpetuosityshortlyafterhehadissued:(a)hisorder
of July 12, 1991 approving the petitioner's cash bail bond without a hearing, and (b) his order of July 16, 1991
grantingtheProsecutorleavetoconductapreliminaryinvestigation,forhemotupropioissuedonJuly17,1991
anotherorderrescindinghispreviousordersandsettingforhearingthepetitioner'sapplicationforbail.
The cases cited in page 15 of the majority opinion in support of the view that the trial of the case should be
suspendedandthattheprosecutorshouldnowconductapreliminaryinvestigation,arenotonallfourswiththis
case. In Doromal vs. Sandiganbayan, 177 SCRA 354 and People vs. Monton, 23 SCRA 1024, the trial of the
criminal case had not yet commenced because motions to quash the information were filed by the accused.
Lozadavs.Hernandez,92Phil.1053U.S.vs.Banzuela,31Phil.565SanDiegovs. Hernandez, 24 SCRA 110
andPeoplevs.Oandasan,25SCRA277arealsoinapplicablebecauseinthosecasespreliminaryinvestigations
hadinfactbeenconductedbeforetheinformationswerefiledincourt.
Itshouldberememberedthatasimportantasistherightoftheaccusedtoapreliminaryinvestigation,itisnota
constitutionalright.Itsabsenceisnotagroundtoquashtheinformation(Doromalvs.Sandiganbayan,177SCRA
354).Itdoesnotaffectthecourt'sjurisdiction,norimpairthevalidityoftheinformation(Rodisvs.Sandiganbayan,
166 SCRA 618), nor constitute an infringement of the right of the accused to confront witnesses (Bustos vs.
Lucero,81Phil.640).
The petitioner's motion for a preliminary investigation is not more important than his application for release on
bail,justastheconductofsuchpreliminaryinvestigationisnotmoreimportantthanthehearingoftheapplication
forbail.Thecourt'shearingoftheapplicationforbailshouldnotbesubordinatedtothepreliminaryinvestigation
of the charge.The hearing should not be suspended, but should be allowed to proceed for it will accomplish a
doublepurpose.Thepartieswillhaveanopportunitytoshownotonly:(1)whetherornotthereisprobablecause
tobelievethatthepetitionerkilledEldonMaguan,butmoreimportantly(b)whetherornottheevidenceofhisguilt
isstrong.Thejudge'sdeterminationthattheevidenceofhisguiltisstrongwouldnaturallyforeclosetheneedfora
preliminaryinvestigationtoascertaintheprobabilityofhisguilt.
The bail hearing may not be suspended because upon the filing of an application for bail by one accused of a
capital offense, "the judge is under a legal obligation to receive evidence with the view of determining whether
evidence of guilt is so strong as to warrant denial of bond." (Payao vs. Lesaca, 63 Phil. 210 HadhirulTahil vs.
Eisma, 64 SCRA 378 Peralta vs. Ramos and Provincial Fiscal of Isabela, 71 Phil. 271 Padilla vs. Enrile, 121
SCRA472Ilaganvs.PonceEnrile,139SCRA349Peoplevs.Albofera,152SCRA123)
The abolition of the death penalty did not make the right to bail absolute, for persons charged with offenses
punishable by reclusion perpetua, when evidence of guilt is strong, are not bailable (Sec. 3, Art. III, 1987
Constitution).InPeoplevs.Dacudao,170SCRA489,wecalleddownthetrialcourtforhavinggrantedthemotion
forbailinamurdercasewithoutanyhearingandwithoutgivingtheprosecutionanopportunitytocommentorfile
objectionsthereto.
SimilarlythisCourtheldinPeoplevs.Bocar,27SCRA512:
. . . due process also demands that in the matter of bail the prosecution should be afforded full
opportunitytopresentproofoftheguiltoftheaccused.Thus,ifitweretruethattheprosecutionin
thiscasewasdeprivedoftherighttopresentitsevidenceagainstthebailpetition,orthattheorder
granting such petition was issued upon incomplete evidence, then the issuance of the order would
reallyconstituteabuseofdiscretionthatwouldcallfortheremedyofcertiorari.(Emphasissupplied.)
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Thepetitionermaynotbereleasedpendingthehearingofhispetitionforbailforitwouldbeincongruoustogrant
bailtoonewhoisnotinthecustodyofthelaw(Felicianovs.Pasicolan,2SCRA888).
Irespectfullytakeexceptiontothestatementsintheponenciathatthe"petitionerwasnotarrestedatall"(p.12)
andthat"petitionerhadnotbeenarrested,withorwithoutawarrant"(p.130).Arrestisthetakingoftheperson
into the custody in order that he may be bound to answer for the commission of an offense (Sec. 1, Rule 113,
RulesofCourt).Anarrestismadebyanactualrestraintofthepersontobearrested,orbyhissubmissiontothe
custodyofthepersonmakingthearrest(Sec.2,Rule113,RulesofCourt).WhenGowalkedintotheSanJuan
PoliceStationonJuly8,1991,andplacedhimselfatthedisposalofthepoliceauthoritieswhoclampedhiminjail
after he was identified by an eyewitness as the person who shot Maguan, he was actually and effectively
arrested. His filing of a petition to be released on bail was a waiver of any irregularity attending his arrest and
estops him from questioning its validity (Callanta vs. Villanueva, 77 SCRA 377 Bagcal vs. Villaraza, 120 SCRA
525).
Ivotetodismissthepetitionandaffirmthetrialcourt'sorderofJuly17,1991.
MelencioHerrera,Paras,Padilla,RegaladoandDavide,Jr.,JJ.,concur.
SeparateOpinions
GUTIERREZ,JR.,J.,concurring:
IconcurinthemajoritydecisionpennedbyMr.JusticeFlorentinoP.Felicianobutamatalossforreasonswhyan
experienced Judge should insist on proceeding to trial in a sensational murder case without preliminary
investigation inspite of the vigorous and continued objection and reservation of rights of the accused and
notwithstanding the recommendations of the Prosecutor that those rights must be respected. If the Court had
faithfullyfollowedtheRules,trialwouldhaveproceededsmoothlyandiftheaccusedisreallyguilty,thenhemay
havebeenconvictedbynow.Asitis,thecasehastogobacktosquareone.
IagreewithJusticeIsaganiCruz"thatthetrialcourthas(apparently)beenmovedbyadesiretocatertopublic
opinion to the detriment of the impartial administration of justice." Mass media has its duty to fearlessly but
faithfullyinformthepublicabouteventsandpersons.However,whenacasehasreceivedwideandsensational
publicity,thetrialcourtshouldbedoublycarefulnotonlytobefairandimpartialbutalsotogivetheappearanceof
completeobjectivityinitshandlingofthecase.
TheneedforatrialcourttofollowtheRulesandtobefair,impartial,andpersistentingettingthetruefactsofa
caseispresentinallcasesbutitisparticularlyimportantiftheaccusedisindigentmoreso,ifheisoneofthose
unfortunateswhoseemtospendmoretimebehindbarsthanoutside.Unliketheaccusedinthiscasewhoenjoys
theassistanceofcompetentcounsel,apoordefendantconvictedbywideandunfavorablemediacoveragemay
be presumed guilty before trial and be unable to defend himself properly. Hence, the importance of the court
alwaysfollowingtheRules.
WhileconcurringwithJusticeFeliciano'sponencia,IamconstrainedtoaddtheforegoingobservationsbecauseI
feeltheyformanintegralpartoftheCourt'sdecision.
CRUZ,J.,concurring:
I was one of the members of the Court who initially felt that the petitioner had waived the right to preliminary
investigation because he freely participated in his trial and his counsel even crossexamined the prosecution
witnesses.Acloserstudyoftherecord,however,particularlyofthetranscriptoftheproceedingsfootnotedinthe
ponencia, reveals that he had from the start demanded a preliminary investigation and that his counsel had
reluctantlyparticipatedinthetrialonlybecausethecourtthreatenedtoreplacehimwithacounseldeoficioifhe
didnot.Underthecircumstances,Iamconvincedthattherewasnowaiver.Thepetitionerwasvirtuallycompelled
to go to trial. Such compulsion and unjustified denial of a clear statutory right of the petitioner vitiated the
proceedingsasviolativeofproceduraldueprocess.
Itistruethattherulingwelaydownherewilltakethecasebacktosquareone,sotospeak,butthatisnotthe
petitioner's fault. He had the right to insist that the procedure prescribed by the Rules of Court be strictly
observed. The delay entailed by the procedural lapse and the attendant expense imposed on the Government
andthedefendantmustbelaidatthedoorofthetrialjudgeforhisprecipitateandillegalaction.
It appears that the trial court has been moved by a desire to cater to public opinion to the detriment of the
impartial administration of justice. The petitioner as portrayed by the media is not exactly a popular person.
Nevertheless, the trial court should not have been influenced by this irrelevant consideration, remembering
insteadthatitsonlyguidewasthemandateofthelaw.
GRIOAQUINO,J.,dissenting:
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G.R.No.101837
IregretthatIcannotagreewiththemajorityopinioninthiscase.Atthispoint,afterfour(4)prosecutionwitnesses
have already testified, among them an eyewitness who identified the accused as the gunman who shot Eldon
Maguaninsidehiscarincoldblood,andasecurityguardwhoidentifiedtheplatenumberofthegunman'scar,I
donotbelievethatthereisstillneedtoconductapreliminaryinvestigationthesolepurposeofwhichwouldbeto
ascertainifthereissufficientgroundtobelievethatacrimewascommitted(whichthepetitionerdoesnotdispute)
andthathe(thepetitioner)isprobablyguiltythereof(whichtheprosecutor,byfilingtheinformationagainsthim,
presumablybelievedtobeso).
In the present stage of the presentation of the prosecution's evidence, to return the case to the Prosecutor to
conduct a preliminary investigation under Rule 112 of the 1985 Rule on Criminal Procedure would be
supererogatory.
Thiscasedidnotsufferfromalackofpreviousinvestigation.Diligentpolicework,withamplemediacoverage,led
totheidentificationofthesuspectwho,seven(7)daysaftertheshooting,appearedattheSanJuanpolicestation
to verify news reports that he was the object of a police manhunt. Upon entering the station, he was positively
identified as the gunman by an eyewitness who was being interrogated by the police to ferret more clues and
detailsaboutthecrime.Thepolicethereuponarrestedthepetitionerandonthesameday,July8,1991,promptly
filedwiththeProvincialProsecutorofRizal,acomplaintforfrustratedhomicideagainsthim.Asthevictimdiedthe
next day, July 9, 1991, before an information could be filed, the FirstAssistant Prosecutor, instead of filing an
informationforfrustratedhomicide,filedaninformationformurderonJuly11,1991intheRegionalTrialCourt,
withnobailrecommended.
However, the Provincial Prosecutor, acting on the petitioner's omnibus motion for preliminary investigation and
release on bail (which was erroneously filed with his office instead of the court), recommended a cash bond of
P100,000forhisrelease,andsubmittedtheomnibusmotiontothetrialcourtforresolution.
RespondentJudgeBenjaminPelayomusthaverealizedhisimpetuosityshortlyafterhehadissued:(a)hisorder
of July 12, 1991 approving the petitioner's cash bail bond without a hearing, and (b) his order of July 16, 1991
grantingtheProsecutorleavetoconductapreliminaryinvestigation,forhemotupropioissuedonJuly17,1991
anotherorderrescindinghispreviousordersandsettingforhearingthepetitioner'sapplicationforbail.
The cases cited in page 15 of the majority opinion in support of the view that the trial of the case should be
suspendedandthattheprosecutorshouldnowconductapreliminaryinvestigation,arenotonallfourswiththis
case. In Doromal vs. Sandiganbayan, 177 SCRA 354 and People vs. Monton, 23 SCRA 1024, the trial of the
criminal case had not yet commenced because motions to quash the information were filed by the accused.
Lozadavs.Hernandez,92Phil.1053U.S.vs.Banzuela,31Phil.565SanDiegovs. Hernandez, 24 SCRA 110
andPeoplevs.Oandasan,25SCRA277arealsoinapplicablebecauseinthosecasespreliminaryinvestigations
hadinfactbeenconductedbeforetheinformationswerefiledincourt.
Itshouldberememberedthatasimportantasistherightoftheaccusedtoapreliminaryinvestigation,itisnota
constitutionalright.Itsabsenceisnotagroundtoquashtheinformation(Doromalvs.Sandiganbayan,177SCRA
354).Itdoesnotaffectthecourt'sjurisdiction,norimpairthevalidityoftheinformation(Rodisvs.Sandiganbayan,
166 SCRA 618), nor constitute an infringement of the right of the accused to confront witnesses (Bustos vs.
Lucero,81Phil.640).
The petitioner's motion for a preliminary investigation is not more important than his application for release on
bail,justastheconductofsuchpreliminaryinvestigationisnotmoreimportantthanthehearingoftheapplication
forbail.Thecourt'shearingoftheapplicationforbailshouldnotbesubordinatedtothepreliminaryinvestigation
of the charge.The hearing should not be suspended, but should be allowed to proceed for it will accomplish a
doublepurpose.Thepartieswillhaveanopportunitytoshownotonly:(1)whetherornotthereisprobablecause
tobelievethatthepetitionerkilledEldonMaguan,butmoreimportantly(b)whetherornottheevidenceofhisguilt
isstrong.Thejudge'sdeterminationthattheevidenceofhisguiltisstrongwouldnaturallyforeclosetheneedfora
preliminaryinvestigationtoascertaintheprobabilityofhisguilt.
The bail hearing may not be suspended because upon the filing of an application for bail by one accused of a
capital offense, "the judge is under a legal obligation to receive evidence with the view of determining whether
evidence of guilt is so strong as to warrant denial of bond." (Payao vs. Lesaca, 63 Phil. 210 HadhirulTahil vs.
Eisma, 64 SCRA 378 Peralta vs. Ramos and Provincial Fiscal of Isabela, 71 Phil. 271 Padilla vs. Enrile, 121
SCRA472Ilaganvs.PonceEnrile,139SCRA349Peoplevs.Albofera,152SCRA123)
The abolition of the death penalty did not make the right to bail absolute, for persons charged with offenses
punishable by reclusion perpetua, when evidence of guilt is strong, are not bailable (Sec. 3, Art. III, 1987
Constitution).InPeoplevs.Dacudao,170SCRA489,wecalleddownthetrialcourtforhavinggrantedthemotion
forbailinamurdercasewithoutanyhearingandwithoutgivingtheprosecutionanopportunitytocommentorfile
objectionsthereto.
SimilarlythisCourtheldinPeoplevs.Bocar,27SCRA512:
. . . due process also demands that in the matter of bail the prosecution should be afforded full
opportunitytopresentproofoftheguiltoftheaccused.Thus,ifitweretruethattheprosecutionin
thiscasewasdeprivedoftherighttopresentitsevidenceagainstthebailpetition,orthattheorder
granting such petition was issued upon incomplete evidence, then the issuance of the order would
reallyconstituteabuseofdiscretionthatwouldcallfortheremedyofcertiorari.(Emphasissupplied.)
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Thepetitionermaynotbereleasedpendingthehearingofhispetitionforbailforitwouldbeincongruoustogrant
bailtoonewhoisnotinthecustodyofthelaw(Felicianovs.Pasicolan,2SCRA888).
Irespectfullytakeexceptiontothestatementsintheponenciathatthe"petitionerwasnotarrestedatall"(p.12)
andthat"petitionerhadnotbeenarrested,withorwithoutawarrant"(p.130).Arrestisthetakingoftheperson
into the custody in order that he may be bound to answer for the commission of an offense (Sec. 1, Rule 113,
RulesofCourt).Anarrestismadebyanactualrestraintofthepersontobearrested,orbyhissubmissiontothe
custodyofthepersonmakingthearrest(Sec.2,Rule113,RulesofCourt).WhenGowalkedintotheSanJuan
PoliceStationonJuly8,1991,andplacedhimselfatthedisposalofthepoliceauthoritieswhoclampedhiminjail
after he was identified by an eyewitness as the person who shot Maguan, he was actually and effectively
arrested. His filing of a petition to be released on bail was a waiver of any irregularity attending his arrest and
estops him from questioning its validity (Callanta vs. Villanueva, 77 SCRA 377 Bagcal vs. Villaraza, 120 SCRA
525).
Ivotetodismissthepetitionandaffirmthetrialcourt'sorderofJuly17,1991.
MelencioHerrera,Paras,Padilla,RegaladoandDavide,Jr.,JJ.,concur.
Footnotes
1Annex"A"ofPetitionRollo,pp.2932.
2Rollo,p.28.
3Annex"B"ofPetition,Rollo,pp.3334.
4Annex"C"ofPetition,Rollo,pp.3543.
5Annex"D"ofPetition,Rollo,pp.4445.
6Annexes"E"and"E1"ofPetition,Rollo,pp.4648.
7Annex"F"ofPetition,Rollo,p.49.
8Annex"G"ofPetition,Rollo,pp.5051.
9Annex"G1"ofPetition,Rollo,p.52.
10Annex"H"ofPetition,Rollo,pp.5455.
11Annex"J"ofPetition,Rollo,pp.5758
12Annex"K"ofPetition,Rollo,pp.5966.
13Annex"K1"ofPetition,Rollo,pp.6768.
14Annex"N"ofPetition,Rollo,pp.109120.
15Annex"A"ofComment,Rollo,p.154.
16G.R.No.86332.
17G.R.No.81567,promulgated3October1991.
18Peoplev.Burgos,144SCRA1(1986).
19151SCRA462(1987).
20151SCRAat469471.
21 Doromal v. Sandiganbayan 177 SCRA 354 (1989) San Diego v. Hernandez, 24 SCRA 110
(1968) People v. Monton, 23 SCRA 1024, (1968) People v. Oandasan, 25 SCRA 277 (1968)
Lozadav.Hernandez,92Phil.1051(1953)U.S.v.Banzuela,31Phil.564(1915).
22Peoplev.Monteverde,142SCRA668(1986)Peoplev.Gomez,117SCRA72(1982)Peoplev.
Marquez,27SCRA808(1969)Peoplev.delaCerna,21SCRA569(1967).
23110Phil.839(1961).
24110Phil.at848.
25Peoplev.Gomez,supraPeoplev.Yutila,102SCRA264(1981)Peoplev.Casiano,111Phil.73
(1961).
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26InRodis,Sr.V.Sandiganbayan,2ndDivision(166SCRA618[1988]),theCourtsaid:
"...Andwhiletheabsenceofpreliminaryinvestigationsdoesnotaffectthecourt'sjurisdictionover
the case (n)or do they impair the validity of the information or otherwise render it defective, but, if
there were no preliminary investigations and the defendants, before entering their plea, invite the
attention of the court to their absence, the court, instead of dismissing the information, should
conductsuchinvestigation,orderthefiscaltoconductitorremandthecasetotheinferiorcourtso
that the preliminary investigation may be conducted.In this case, the Tanodbayan has the duty to
conductthesaidinvestigation.
Thus, although the Sandiganbayan was correct in ruling that the absence of a preliminary
investigation is not ground for quashing an information, it should have held the proceedings in the
criminal cases in abeyance pending resolution by the Tanodbayan of petitioner's petition for
reinvestigation,asalternativelyprayedforbyhiminhismotiontoquash."(166SCRAat623624)
InParedesv.Sandiganbayan(193SCRA464[1991]),theCourtstated:
"...Theremedyoftheaccusedinsuchacaseisto call the attention of the court to the lack of a
preliminaryinvestigationanddemand,asamatterofright,thatonebeconducted.Thecourt,instead
of dismissing the information, should merely suspend the trial and order the fiscal to conduct a
preliminaryinvestigation.ThusdidweruleinIlaganv.Enrile,139SCRA349."(193SCRAat469)
27Section14(1),ArticleIII,1987Constitution:"Nopersonshouldbeheldtoanswerforacriminal
offensewithoutdueprocessoflaw."
28ATTY.ARMOVIT:
...Wearesadtomakethestatementthatitwouldseemthatthegovernmentnowinthisproceeding
wouldliketobecomethelawbreaker.Whydowesaythis,YourHonor.Theinformationforaserious
crimeofmurderwasfiledagainsttheaccusedwithoutthebenefitofthepreliminaryinvestigationhas
beenadmittedbynolessthantheInvestigatingFiscalhimself...
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ATTY.ARMOVIT:
Whydowesaythegovernmentbecomesalawbreaker.WehaveacaseofUSvs.Marfori. It says
andIquote(counselreadingsaidportioninopencourt)
. . . Likewise in San Diego v. Hernandez, the Supreme Court says I quote, (counsel reading said
portion in open court). All these doctrines had been recently quoted in the case of Doromal v.
Sandiganbayan.Inadditiontothis,wehavefiledamotionbeforethisCourt.ThemotiontoSuspend
Proceedings and Transfer Venue which is set for hearing on 28 August 1991. The arguments we
citedinthismotiontosuspendproceedingsandtotransfervenuearenotinventionofthiscounsel.
ATTY.FLAMINIANO:
HeistalkingaboutthemotionwhichissetforAugust28,YourHonor.
ATTY.ARMOVIT:
Iwanttobeheard,YourHonor.
ATTY.FLAMINIANO:
TheMotionissetforAugust28andheisnowarguingonthatmotion.
COURT:
Iamgoingtostopyou.YouconcentrateonthemotionbeforetheCourt.
FISCALVILLAIGNACIO:
Thependingincidentisforthearraignmentoftheaccused,YouHonor.
COURT:
Whatwearedoingarenotpertinenttotheissue.Thiswouldbeunprocedural.
ATTY.ARMOVIT:
Whatarewetryingtosay,YourHonor,whydoyourushwiththearraignmentoftheaccused
when there are several unresolved incidents. The special civil action before the Court of
Appealswherewequestionedtheveryvalidity...
COURT:
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UntilnowtheCourtofAppealshasnotgivenduecourseregardingthat.
ATTY.ARMOVIT:
Thegovernmentrusheswiththeproceedingshere.IntheCourtofAppealstheyfiledamotion
for extension of ten days fromAugust 19 or untilAugust 29 to comment on that special civil
action. There are dozens of cases which languishes 2, 3, 4 to 5 years. Why so special and
selectiveinthetreatmentofthiscase.Iaskthatquestion.
COURT:
Before you proceed, can you cite an incident before this Court where the preliminary
investigationhasbeendelayed.
FISCALVILLAIGNACIO:
The information was filed last July 11, 1991. Today is August 23. Where is the rush in
arraigningtheaccused.
COURT:
Heardenough.Proceedwiththearraignmentoftheaccused.
ATTY.ARMOVIT:
Inmy30yearsofpractice,thisisthefirsttimeIamstoppedbytheCourtinthemiddleofmy
arguments.
FISCALVILLAIGNACIO:
Youarewastingthetimeofthecourt.
COURT:
Orderinthecourt.Orderinthecourt.
ATTY.ARMOVIT:
IwanttomakeofrecordthattherehasbeenclappingafterthemanifestationofHon. Fiscal,
YourHonor.
COURT:
Letusproceedwiththearraignment.
ATTY.ARMOVIT:
MayIconcludeciting,YourHonor,theSupremeCourtdecision.
COURT:
I have made my ruling. The accused is entitled to speedy trial. That is the reason why this
arraignmentwassetfortoday.
ATTY.ARMOVIT:
MayImoveforareconsideration,YourHonor.
COURT:
Themotionforreconsiderationisdenied.Proceedwiththearraignmentoftheaccused.
ATTY.ARMOVIT:
YourHonor,maywemovethatwemaybegivenaperiodoffivedaystofileamotiontoquash
information.
FISCALVILLAIGNACIO:
Thisisplaindilatorytactics,Yourhonor.
COURT:
Inviewoftherefusaloftheaccusedtoenterapleaonaccountoftheadviceofthislawyer,let
thereforeapleaofnotguiltybeenteredintotherecordofthiscase.
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ATTY.ARMOVIT:
Iwouldliketomoveforarulingonourmotiontobegivenfivedaystofileamotiontoquash.
Wedidnotheartherulingonthatpoint,YourHonor.
COURT:
As prayed for, counsel for accused is hereby given a period of five days from today within
whichtofilehisMotiontoQuash,...
It is understood that the Motion to Quash will not in anyway affect the arraignment of the
accused.
ATTY.ARMOVIT:
Considering the favorable ruling of the Court that we were given five days to file motion to
quash,maywemovethattheCourtordertheenteringapleaofnotguiltyoftheaccusedbe
expunged from record, otherwise we will deem to have waived our right to file a motion to
quash.
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ATTY.ARMOVIT:
Withduerespectconsideringthatthereareveryseriouscriminallawquestionsinvolvedinthis
proceeding,werespectfullysubmitthatitispremature.Besides,Ihaveanunresolvedmotion
toinhibitthePresidingJudge.
COURT:
Iwillcutyouthere...assumingyouweregivenfivedaystofileamotiontoquash,itdoesn't
mean the arraignment is considered moot and academic. The arraignment stands including
thepleaofnotguiltytotheoffenseascharged.Iamaskingyouwhetheryouareavailingof
thepretrialwithoutprejudicetofilingamotiontoquash.
ATTY.ARMOVIT:
Consistently,thereisnovalidproceedingbeforethisCourt.Iwouldrathernotparticipateinthis
case.ButifitistheCourt'sorderthenwe'llhavetosubmit,butfromthisrepresentationwewill
notvoluntarilysubmit.
xxxxxxxxx
ATTYARMOVIT:
This representation manifested that I would rather not participate in this case. But if it is the
Court'sorderwewouldsubmittotheOrderofthisCourtbecauseweareofficersofthelawnot
thatwearealreadyrepresentingtheaccused.Maywerespectfullymovetostrikeoutfromthe
recordtheinofficiousorderoftheHon.Prosecutortoappointacounseldeoficio.Theaccused
isentitledtocounseldeoficio.Theaccusedisentitledtocounseldeparte.
FISCALVILLAIGNACIO:
But counsel de parte refuses to participate, in which the incumbent court can appoint a PAO
lawyerincaseoftheabsenceofcounseldeparte.
COURT:
TheobjectionofPublicProsecutoriswelltaken.ThatistheprocedureoftheCourt,thatifthe
accusedhasnocounseldepartewealwaysappointacounseldeoficiofortheaccused.
ATTY.ARMOVIT:
WerespectfullysubmitthataccusedinCriminalCaseisentitledtocounselofhisownchoice.
May we at lease allow the accused to express his opinion or decision on matters as to who
shouldgivehimlegalrepresentation.
COURT
Youjustsaidearlieryoudon'twanttoparticipateintheproceedings.
ATTY.ARMOVIT:
ThisisnotwhatIsaid. I said that we'll not voluntarily participate but if itistheCourt'sorder,
certainlytheaccusedhastherightofhisowncounselofchoice.
13/14
3/22/2016
G.R.No.101837
COURT
TheCourtwillnowreiterateorderingthetrialofthiscase.
xxxxxxxxx
(TSN.23August1991.pp.29emphasissupplied)
Duringthehearingheldon4September1991,beforetheCourtofAppeals,inthepetitionfor
HabeasCorpus,counselforpetitionerrecountedindetailwhattookplacebeforethetrialcourt
and stressed the objection entered by the petitioner before the trial court and that petitioner
participated in the proceedings blow not voluntarily but under the coercive power of the trial
judge.Counselconcluded:
...AgainIsaid,YourHonors,wearenotparticipatinginthisproceedings,butwewillsubmitto
whattheJudgerulesbecausethatisallwecando.Whileweobjectwehavetosubmit.Thatis
why, Your Honors, dates were set out of compulsion not because we voluntarily participated
but we reserved our right,Your Honors, to pursue our special civil action and so that is why
thesedatescameabout."(TSN,4September1991.RecordsinCAG.R.Nos.SP25800and
25530,pp.3739emphasissupplied)
29Therelevantportionofthetranscriptofstenographicnotesreadsasfollows:
COURT:
AndconsideringthattheCourthasnotbeenrestrainedbytheCourtofAppealsdespitethepetition,
letthetrialofthiscaseproceed.
ATTY.ARMOVIT:
Your Honor please may we just record a continuing objection on the grounds that are cited in our
petitionforhabeascorpusandcertioraritoconductthefurtherproceedingsofthisCourtandbythe
way Your Honor, we do not consider unfortunate the deliberation and serious thoughts our higher
courts are giving in respect to a consideration of the constitutional right of the accused invoked
beforethatbodyratheritisthemostjudicialactofupliftingthehighestcourtofourland.
COURT:
Alrightproceed.
PPVILLAIGNACIO:
Wecallonourfirstwitnesstothewitnessstand,Mr.NicanorBayhona,(TSN,19September1991,p.
6emphasissupplied)
30InPeoplev.Lambino(103Phil.504[1958]),Lambino,beforecommencementoftrial,demanded
hisrighttopreliminaryinvestigation.Hismotionforpreliminaryinvestigationwasdeniedbythetrial
courtwhich,induecourseoftime,convictedLambino.Onappeal,theSupremeCourtheldthatthe
trialcourtdidnoterrindenyingLambino'smotionforpreliminaryinvestigationbecausesaidmotion
wasfiledafterhehadenteredapleaofnotguiltyandbecausehetooknostepstobringthematter
toahighercourttostopthetrialofthecase.TheSupremeCourtsaid:
"...Again,beforethecommencementofthetrial,appellantreiteratedhispetitionforapreliminary
investigation,whichwasoverruled,neverthelessappellanttooknostepstobringthemattertohigher
courtsandstopthetrialofthecaseinsteadheallowedtheprosecutiontopresentthefirstwitness
who was able to testify and show the commission of the crime charged in the information. By his
conduct,weheldthathewaivedhisrighttoapreliminaryinvestigationandisestoppedfromclaiming
it."(103Phil.at508emphasissupplied)
TheLawphilProjectArellanoLawFoundation
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On17July1991,however,respondentJudgemotuproprioissuedanOrder, 10embodying the following: (1) the 12

On30August1991,theCourtofAppealsissuedthewritof habeascorpus. 13The petition for certiorari, prohibition

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