Okabe v. Gutierrez : 150185 : May 27, 2004 : J. Callejo Sr : Second
Division : Decision
[G.R. NO. 150185 : May 27, 2004]
TERESITA TANGHAL OKABE, Petitioner, v. HON. PEDRO DE LEON GUTIERREZ, in his capacity as Presiding Judge of
RTC, Pasay City, Branch 119; PEOPLE OF THE PHILIPPINES; and CECILIA MARUYAMA, Respondents.
D E C I S I O N
CALLEJO, SR., J.:
Before us is a Petition for Review on Certiorari, under
Rule 45 of the Rules of Court, as amended, that part of the Decision1 of the Court of Appeals in CA-G.R. SP No. 60732 dismissing her petition for certiorari under Rule 65 of the Rules of Court, as amended, for the
nullification of the August 25 and 28, 2000 Orders of the respondent judge in
Criminal Case No. 00-0749.
Cecilia Maruyama executed a fifteen-page affidavit-complaint2 and filed the same with the Office of the City Prosecutor of Pasay City, on
December 29, 1999, charging Lorna Tanghal and petitioner Teresita Tanghal
Okabe, a.k.a. Shiela Okabe, with estafa.
In her affidavit, Maruyama alleged, inter alia, that on December 11, 1998,
Y11,410,000 with the peso
equivalent of P3,993,500 to the
petitioner, who was engaged in the business of door-to-door delivery from
Japan to the Philippines.
alleged that the petitioner failed to deliver the money as agreed upon, and, at
first, denied receiving the said amount but later returned only US$1,000
through Lorna Tanghal.
During the preliminary investigation, the complainant, respondent
Maruyama, submitted the affidavit of her witnesses, namely, Hermogena Santiago,
Wilma Setsu and Marilette G. Izumiya and other documentary evidence.
In her affidavit, Setsu alleged that the
money which was entrusted to the petitioner for delivery to the Philippines
belonged to her and her sister Annie Hashimoto, and their mother Hermogena
Sanchez-Quicho, who joined respondent Maruyama in her complaint against
petitioner Okabe and Tanghal.
Respondent Maruyama, likewise, submitted a reply3 to the petitioners counter-affidavit.
After the requisite preliminary investigation, 2nd Assistant City
Prosecutor Joselito J. Vibandor came out with a resolution dated March 30,
2000, finding probable cause for estafa
against the petitioner.4 Attached to the resolution, which was submitted to the city prosecutor for
approval, was the Information5 against the petitioner and Maruyamas affidavit-complaint.
The city prosecutor approved the resolution
and the Information dated March 30, 2000 attached thereto.6 cralawred
On May 15, 2000, an Information against the petitioner was filed
in the Regional Trial Court of Pasay City, docketed as Criminal Case No.
The case was raffled to Branch
119 of the court presided by Judge Pedro de Leon Gutierrez.7 The accusatory portion of the Information reads:chanroblesvirtua1awlibrary
That on or about December 12, 1998 in Pasay City, Metro Manila,
Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused defrauded Cecilia Maruyama and Conchita Quicho, complainant
herein, in the following manner, to wit: said accused received in trust from
Cecilia Maruyama the amount of Japanese Yen 1141 (sic) with peso equivalent to
P3,839,465.00 under obligation
to deliver the money to Conchita Quicho at the NAIA International Airport,
Pasay City, immediately upon accused arrival from Japan, but herein accused
once in possession of the same, did, then and there willfully, unlawfully and
feloniously misappropriate and convert to her own personal benefit the said
amount, and despite demands accused failed and refused to do so, to the damage
and prejudice of the complainants in the aforesaid amount.
Contrary to law.8 cralawred
Appended to the Information was the affidavit-complaint of
respondent Maruyama and the resolution of Investigating Prosecutor
On May 19, 2000, the trial
court issued a warrant for the arrest of the petitioner with a recommended bond
On June 15, 2000,
the petitioner posted a personal bail bond in the said amount, duly approved by
Judge Demetrio B. Macapagal, the Presiding Judge of Branch 79 of the RTC of
Quezon City, who forthwith recalled the said warrant.The approved personal bail bond of the petitioner was transmitted
to the RTC of Pasig City on June 21, 2000.
Upon her request, the petitioner was furnished with a certified copy of
the Information, the resolution and the criminal complaint which formed part of
the records of the said case.
petitioner left the Philippines for Japan on June 17, 2000 without the trial
courts permission, and returned to the Philippines on June 28, 2000.
She left the Philippines anew on July 1,
2000, and returned on July 12, 2000.
On July 14, 2000, the trial court issued an Order setting the
petitioners arraignment and pre-trial at 2:00 p.m. of July 16, 2000.
On the same day, the private prosecutor
filed an urgent ex parte motion for
the issuance of the hold departure order, alleging as follows:chanroblesvirtua1awlibrary
3.It has come to the
knowledge of private complainant that there is an impending marriage within the
Philippines of either the son or daughter of the above-named accused and that
the above-named accusedwho has businesses in Japan, and is presently in
Japanwill soon exit Japan and enter the Philippines to precisely attend said
4.Given [a] the bail was
fixed at merely
P40,000.00 and b] the considerable financial capability
of the accused, it is a foregone conclusion that the above-named accused will,
upon arrest, readily and immediately post bond, and leave for Japanthereby
frustrating and rendering inutile the administration of criminal justice in our
The speed with which accused
Teresita Sheila Tanghal Okabe can post bond and leave for Japaneffectively
evading arraignment and pleathus necessitates the immediate issuance of a Hold
Departure Order even before her arrival here in the Philippines;9 cralawred
The trial court issued an order on the same day, granting the
motion of the private prosecutor for the issuance of a hold departure order and
ordering the Commission on Immigration and Deportation (CID) to hold and
prevent any attempt on the part of the petitioner to depart from the
Philippines.10 For her part, the petitioner filed on July 17, 2000 a verified motion for
judicial determination of probable cause and to defer proceedings/arraignment,
alleging that the only documents appended to the Information submitted by the
investigating prosecutor were respondent Maruyamas affidavit-complaint for estafa and the resolution of the
investigating prosecutor; the affidavits of the witnesses of the complainant,
the respondents counter-affidavit and the other evidence adduced by the
parties were not attached thereto.
petitioner further alleged that the documents submitted by the investigating
prosecutor were not enough on which the trial court could base a finding of
probable cause for estafa against
She further averred that
conformably to the rulings of this Court in Lim v. Felix11 and Roberts, Jr. v. Court of Appeals ,12 it behooved the investigating prosecutor to submit the following to the trial
court to enable it to determine the presence or absence of probable cause: (a)
copies of the affidavits of the witnesses of the complainant; (b) the
counter-affidavit of Okabe and those of her witnesses; (c) the transcripts of
stenographic notes taken during the preliminary investigation; and, (d) other
documents presented during the said investigation.
On July 19, 2000, the petitioner filed a Very Urgent Motion To
Lift/Recall Hold Departure Order dated July 17, 2000 and/or allow her to
regularly travel to Japan alleging, thus:chanroblesvirtua1awlibrary
3.Accused is (sic) widow and the legitimate mother of
three (3) children, two (2) of whom are still minors, namely:chanroblesvirtua1awlibrary
3.1.Okabe, Jeffrey-18 years
old born on 13 August 1981.
3.2.Okabe, Masatoshi-14 years
old and born on 16 October 1985, 3rd year High School student at Hoshikuki,
Chiba City, Matsugaoka, High School, residing at Chiba City, Chuo-Ku,
Yahagi-cho, 205, Telephone No. 043-224-5804.
3.3.Okabe, Tomoki-13 years
old and born on 13 March 1986, 2nd year High School student at Hoshikuki, Chiba
City, Matsugaoka, High School, residing at Chiba City, Chuo-Ku, Yahagi-cho,
205, Telephone No. 043-224-5804.
3.4.The accused has to attend
the Parents Teachers Association (PTA) at the Hoshikuki High School where her
two (2) minor sons aforesaid are presently enrolled and studying because Okabe,
Masatoshis graduation will take place on 26 July 2000.
3.5.The two (2) minor
children of the accused absolutely depend their support (basic necessities) for
foods, clothings, medicines, rentals, schooling and all other expenses for
their survival to their legitimate mother who is the accused herein.
3.6.The issuance of the hold
departure order (HDO) will impair the inherent custodial rights of the accused
as the legitimate mother over these two (2) minor children which is repugnant
3.7.The issuance of the hold
departure order (HDO) will unduly restrict the accused to her custodial rights
and visitation over her aforesaid minor children who are permanently living in
3.8.The issuance of the hold
departure order (HDO) will unduly deprived (sic)
these minor children to their right to obtain education and survival.
4.Accuseds only source
of income and livelihood is door-to-door delivery from Japan to the Philippines
and vice versa which has been taking place for a very long period of time and
in the process she has been constantly departing from the Philippines on a
weekly basis and arriving in Japan on the same frequency, as evidenced by xerox
copies of the pages of her Philippine Passports which are hereto attached as
Annexes A, A-1, A-2 up to A-30, respectively.To deprive her of this only source of her livelihood to which the
aforesaid two (2) minor children are deriving their very survival in a foreign
land will (sic) tantamount to
oppression rather than prosecution and depriving the said minor sons of their right
to live even before trial on the merits of this case that will (sic) tantamount to the destruction of
the future of these minor children.13 cralawred
The private prosecutor opposed the petitioners motions during
the hearing on July 21, 2000 which was also the date set for her
The hearing of the motions
as well as the arraignment was reset to 2:00 p.m. of July 26, 2000.
On the said date, the petitioner filed a
manifestation objecting to her arraignment prior to the resolution of her
She alleged that her
arraignment for the crime charged should not be made a condition for the
granting of her motion to recall the hold departure order issued against her.
The arraignment of the petitioner was again
reset to 2:00 p.m. of August 28, 2000, pending the resolution of her two
On August 25, 2000, the
petitioner filed a motion for the postponement of her arraignment alleging
that, in case the trial court ruled adversely thereon, she would refuse to
enter a plea and seek relief from the appellate court.
The court denied the petitioners motions on
the following grounds:chanroblesvirtua1awlibrary
(a) Based on its
personal examination and consideration of the Information, the
affidavit-complaint of respondent Maruyama and the resolution of the
investigating prosecutor duly approved by the city prosecutor, the court found
probable cause for the petitioners arrest.
Since the petitioners motion for a determination of probable cause was
made after the court had already found probable cause and issued a warrant for
the petitioners arrest, and after the latter filed a personal bail bond for
her provisional liberty, such motion was a mere surplusage;chanroblesvirtuallawlibrary
(b) When the
petitioner posted a personal bail bond for her provisional liberty, she thereby
waived her right to question the courts finding of the existence of probable
cause for her arrest and submitted herself to the jurisdiction of the court,
more so when she filed the motion for the lifting of the hold departure order the
court issued, and the motion to defer the proceedings and her arraignment; andcralawlibrary
(c) The hold
departure order issued by the trial court was in accord with Supreme Court
Circular No. 39-97 dated June 19, 1997, as well as the ruling of this Court in Manotoc, Jr. v. Court of Appeals.14 cralawred
When the case was called for the petitioners arraignment at 2:00
p.m., on August 28, 2000, she refused to plead.15 Her counsel advised her, in open court, not to enter a plea and, with leave of
court, left the courtroom.
then entered a not guilty plea for the petitioner.16 It also issued an order, on the said date, setting the pre-trial and initial
presentation of the evidence of the prosecution at 8:30 a.m. of September 20,
The petitioner then filed with the Court of Appeals a Petition for Certiorari under Rule 65 of the Rules of Court with a plea for a
writ of preliminary injunction.
case was docketed as CA-G.R. SP No. 60732.
The petitioner ascribed the following errors to the trial court:
RESPONDENT COURT GRAVELY ERRED WHEN IT ISSUED WARRANT OF ARREST
DESPITE OF (SIC) LACK OF PROBABLE
RESPONDENT COURT HAS VIOLATED THE RIGHT OF THE
PETITIONER TO DUE PROCESS
RESPONDENT COURT HAS ALREADY PRE-JUDGED THE
CONVICTION OF THE PETITIONER FOR ESTAFA
RESPONDENT COURT HAS EXHIBITED ITS APPARENT PARTIALITY
TOWARDS THE PROSECUTION AND AGAINST THE
RESPONDENT COURT GRAVELY
ERRED WHEN IT DENIES (SIC) THE MOTION
FOR JUDICIAL DETERMINATION OF PROBABLE CAUSE PURSUANT TO THE DOCTRINE OF
RESPONDENT COURT GRAVELY ERRED WHEN IT DENIES (SIC) THE
LIFTING/RECALL OF THE HDO AND/OR ALLOWING THE PETITIONER TO
TRAVEL TO JAPAN REGULARLY FOR HUMANITARIAN
RESPONDENT COURT COMMITTED GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OF JURISDICTION WHEN IT
ISSUED THE QUESTIONED ORDERS18 cralawred
On January 31, 2001, the CA rendered a Decision19 partially granting the petition in that the assailed order of the trial court
denying the petitioners motion to lift/recall the hold departure order was set
However, the petitioners motion
for reconsideration of the trial courts decision was denied and her petition
for the nullification of the August 25, 2000 Order of the respondent judge was
The CA ruled that by posting
bail and praying for reliefs from the trial court, the petitioner waived her
right to assail the respondent judges finding of the existence of probable
The appellate court cited the
ruling of this Court in Cojuangco, Jr. v. Sandiganbayan .20 Thus, the appellate court affirmed the assailed order of the RTC, based on the
respondent judges personal examination of respondent Maruyamas
affidavit-complaint, the resolution of the investigating prosecutor and the
Information approved by the city prosecutor, a finding of probable cause was in
However, the appellate court
allowed the petitioner to travel to Japan under the following conditions:chanroblesvirtua1awlibrary
(1) That petitioner post
a bond double the amount of her alleged monetary liability under the
Information filed against her, as recommended by the Office of the Solicitor
(2) That petitioner
inform respondent Court of each and all of her travel itinerary prior to
leaving the country;chanroblesvirtuallawlibrary
(3) That petitioner make
periodic reports with respondent Court;chanroblesvirtuallawlibrary
(4) That petitioner
furnish respondent Court with all the addresses of her possible place of
residence, both here and in Japan; andcralawlibrary
(5) Such other reasonable
conditions which respondent Court may deem appropriate under the circumstances.21 cralawred
The appellate court did not resolve the issue of whether the
trial court had prejudged the case and was partial to the prosecution.
The decretal portion of the decision of the
considered, the instant special civil action for certiorari is hereby PARTIALLY
GRANTED insofar as the denial of petitioners Motion to Lift/Recall Hold
Departure Order dated 14 July, 2000 and/or Allow the accused to Regularly
Travel to Japan is concerned.
other respect, the same is hereby DENIED.
SO ORDERED.22 cralawred
On March 6, 2001, the petitioner filed a motion for a partial
reconsideration of the decision of the CA contending that the appellate court
erred in applying the ruling of this court in Cojuangco, Jr. v. Court of Appeals23 instead of Section 26, Rule 114 of the Revised Rules on Criminal
The petitioner posited that
the said rule, which took effect on December 1, 2000, before the court rendered
its decision, had superseded the ruling of this Court in the Cojuangco case.
However, the appellate court held that
Section 26, Rule 114 of the Revised Rules on Criminal Procedure cannot be
applied retroactively, because the petitioner had posted bail on June 15, 2000
before the Revised Rules on Criminal Procedure took effect.
Hence, the instant Petition for Review on Certiorari for the
reversal of the decision and resolution of the CA and praying that after due
proceedings, judgment be rendered in her favor, thus:chanroblesvirtua1awlibrary
WHEREFORE, it is respectfully prayed of this Honorable Supreme
Court that after due proceedings, judgment be rendered in favor of the
petitioner and against the respondents as follows:chanroblesvirtua1awlibrary
(a) GIVING DUE COURSE to the
(b) ORDERING the REVERSAL and
PARTIALLY SETTING ASIDE of the Decision promulgated on 31 January 2001 (Annex
A hereof) of the Honorable Court of Appeals in CA-G.R. SP No. 60732 as well
as its Resolution promulgated on 27 September 2001 (Annex B hereof);chanroblesvirtuallawlibrary
(c) ORDERING the DISMISSAL of
Crim. Case No. 00-0749 for lack of probable cause;chanroblesvirtuallawlibrary
(d) DECLARING the entire
proceedings in Crim. Case No. 00-0749 as null and void;chanroblesvirtuallawlibrary
(e) ORDERING the private
respondents to pay the petitioners the following amount:chanroblesvirtua1awlibrary
(i) at least
P1,000,000.00 as moral damages;chanroblesvirtuallawlibrary
(ii) at least
P1,000,000.00 as exemplary damages;chanroblesvirtuallawlibrary
(iii) at least
P500,000.00 as attorneys fees
and for other expenses of litigation.
(f) ORDERING the private
respondent to pay the costs of this suit.
(g) Petitioner further prays
for such other reliefs just and equitable under the premises.24 cralawred
The petitioner asserts that the CA committed the following
THE HONORABLE COURT OF APPEALS MADE A
REVERSIBLE ERROR WHEN IT COMPLETELY DISREGARDED THE APPLICATION OF SECTION 26,
RULE 114 OF THE REVISED RULES ON CRIMINAL PROCEDURE WHICH TOOK EFFECT ON 01
DECEMBER 2000 WHICH IS FAVORABLE TO THE PETITIONER/ACCUSED.
THE HONORABLE COURT OF APPEALS MADE A
REVERSIBLE ERROR IN RULING THAT WHATEVER INFIRMITY THERE WAS IN THE ISSUANCE
OF THE WARRANT OF ARREST, THE SAME WAS CURED WHEN PETITIONER VOLUNTARILY
SUBMITTED TO THE RESPONDENT COURTS JURISDICTION WHEN SHE POSTED BAIL AND FILED
MOTIONS SEEKING AFFIRMATIVE RELIEF SUCH AS MOTION TO LIFT/RECALL HOLD DEPARTURE
ORDER AND TO ALLOW PETITIONER TO TRAVEL REGULARLY TO JAPAN (Last paragraph, Page 9 DECISION dated 31 January 2001) .
THE HONORABLE COURT OF APPEALS MADE A
REVERSIBLE ERROR WHEN IT RELIED UPON THE RULING IN THE CASE OF COJUANGCO, JR. VS. SANDIGANBAYAN, [300
SCRA 367 (1998)] WHEN IN FACT SAID RULING IS NOW OBSOLETE AND NO LONGER
THE HONORABLE COURT OF APPEALS MADE A
REVERSIBLE ERROR IN RULING THAT RESPONDENT COURT COMPLIED WITH THE
CONSTITUTIONAL REQUIREMENTS ON THE ISSUANCE OF WARRANT OF ARREST WITHOUT
PROBABLE CAUSE, WHEN THE RESPONDENT COURT MERELY RELIED ON [THE] (i) COMPLAINT-AFFIDAVIT
OF CECILIA MARUYAMA; (ii) RESOLUTION OF THE INVESTIGATING PROSECUTOR; AND (iii)
THE HONORABLE COURT OF APPEALS MADE A
REVERSIBLE ERROR WHEN IT FAILED TO RULE ON THE PARTIALITY OF THE RESPONDENT
JUDGE IN HANDLING THE CASE BELOW WHICH IS VIOLATIVE OF THE PETITIONERS RIGHT
TO DUE PROCESS.
THE FILING OF CRIM. CASE NO. 4297 (MTC,
ANGAT, BULACAN) FOR ESTAFA ENTITLED PEOPLE VS. SHEILA OKABE; CIVIL CASE NO.
331-M-98 (RTC, MALOLOS, BULACAN) FOR SUM OF MONEY WITH PRELIMINARY ATTACHMENT
ENTITLED CONCHITA SANCHEZ-QUICHO VS. SHEILA TERESITA TANGHAL OKABE; AND CRIM.
CASE NO. 00-07-19 (RTC, PASAY CITY, BRANCH 119) ENTITLED PEOPLE VS. TERESITA
TANGHAL OKABE CONSTITUTE A VIOLATION OF THE RULE ON NON-FORUM SHOPPING.25 cralawred
By way of comment, the Office of the Solicitor General refuted
the petitioners assigned errors, contending as follows:
The Court of Appeals did not commit a
reversible error in not applying Section 26, Rule 114 of the Revised Rules on
The Court of Appeals did not commit a
reversible error in ruling that the infirmity, if any, in the issuance by the
respondent Judge of the warrant of arrest against petitioner was cured when
petitioner voluntarily submitted to the trial courts jurisdiction when she
posted bail and filed motions seeking for affirmative reliefs from the trial
court, such as the motion to lift/recall Hold Departure Order (HDO) and to
allow petitioner to travel regularly to Japan.
The Court of Appeals did not commit a
reversible error in applying the ruling in the Cojuangco case.
The Court of Appeals did not commit a
reversible error in finding that respondent Judge complied with the
constitutional requirements on the issuance of a warrant of arrest.
The Court of Appeals did not commit a
reversible error when it did not rule on the partiality of the respondent Judge
in handling Criminal Case No. 00-0749.
The Honorable Court of Appeals did not
commit a reversible error when it did not rule on petitioners claim of forum
The Court shall resolve the assigned errors simultaneously as
they are interrelated.
The petitioner asserts that the respondent judge could not have
determined the existence of probable cause for her arrest solely on the resolution
of the investigating prosecutor and the undated affidavit-complaint of
She posits that
the respondent judge should have ordered the investigating prosecutor to submit
the affidavits of the witnesses of respondent Maruyama and the latters
documentary evidence, as well as the counter-affidavit of the petitioner and
the transcripts of the stenographic notes, if any, taken during the preliminary
The petitioner adds that
the respondent judge should have personally reviewed the said documents,
conformably to the rulings of this Court in Lim v. Felix,27 Roberts, Jr. v. Court of Appeals28 and Ho v. People,29 before determining the presence or absence of probable cause.
She posits that the respondent judge acted
with grave abuse of discretion amounting to excess or lack of jurisdiction in
denying her motion for a determination of probable cause, and the alternative
motion for a dismissal of the case against her for lack of probable cause.
The petitioner further asserts that the appellate court erred in
affirming the ruling of the respondent judge that, by posting a personal bail
bond for her provisional liability and by filing several motions for relief,
she thereby voluntarily submitted herself to the jurisdiction of the trial
court and waived her right to assail the infirmities that infected the trial
courts issuance of the warrant for her arrest.She avers that the appellate courts reliance on the ruling of
this Court in Cojuangco, Jr. v. Sandiganbayan30 is misplaced, and submits that the appellate court should have applied Section
26, Rule 114 of the Revised Rules of Court retroactively, as it rendered the
ruling of this Court in the Cojuangco,
Jr. case obsolete.
The Office of the Solicitor General, on the other hand, asserts
that the respondent judge did not commit any grave abuse of discretion when he
found probable cause against the petitioner for estafa, and thereafter issued a warrant for her arrest.
It argues that the respondent judge
personally determined the existence of probable cause independently of the
certification of the investigating prosecutor, and only after examining the
Information, the resolution of the investigating prosecutor, as well as the
affidavit-complaint of the private complainant.It asserts that such documents are sufficient on which to anchor
a finding of probable cause.
that the appellate court correctly applied the ruling of this Court in the Cojuangco, Jr. v. Court of Appeals case, and that the respondent judge complied with both the requirements of the
constitution and those set forth in the Rules of Court before issuing the said
We agree with the contention of the petitioner that the appellate
court erred in not applying Section 26, Rule 114 of the Revised Rules on
Criminal Procedure, viz:chanroblesvirtua1awlibrary
SEC. 26. Bail not a bar to
objections on illegal arrest, lack of or irregular preliminary investigation.
An application for or admission to bail shall not bar the accused from
challenging the validity of his arrest or the legality of the warrant issued
therefor, or from assailing the regularity or questioning the absence of a
preliminary investigation of the charge against him, provided that he raises
them before entering his plea.
shall resolve the matter as early as practicable but not later than the start
of the trial of the case.
It bears stressing that Section 26, Rule 114 of the Revised Rules
on Criminal Procedure is a new one, intended to modify previous rulings of this
Court that an application for bail or the admission to bail by the accused
shall be considered as a waiver of his right to assail the warrant issued for
his arrest on the legalities or irregularities thereon.32 The new rule has reverted to the ruling of this Court in People v. Red.33 The new rule is curative in nature because precisely, it was designed to supply
defects and curb evils in procedural rules.
Hence, the rules governing curative statutes are applicable.
Curative statutes are by their essence
retroactive in application.34 Besides, procedural rules as a general rule operate retroactively, even without
express provisions to that effect, to cases pending at the time of their
effectivity, in other words to actions yet undetermined at the time of their
effectivity.35 Before the appellate court rendered its decision on January 31, 2001, the
Revised Rules on Criminal Procedure was already in effect.
It behooved the appellate court to have
applied the same in resolving the petitioners petition for certiorari and her
motion for partial reconsideration.
Moreover, considering the conduct of the petitioner after posting
her personal bail bond, it cannot be argued that she waived her right to
question the finding of probable cause and to assail the warrant of arrest
issued against her by the respondent judge.
There must be clear and convincing proof that the petitioner had an
actual intention to relinquish her right to question the existence of probable
cause.36 When the only proof of intention rests on what a party does, his act should be
so manifestly consistent with, and indicative of, an intent to voluntarily and
unequivocally relinquish the particular right that no other explanation of his
conduct is possible.37 In this case, the records show that a warrant was issued by the respondent
judge in Pasay City for the arrest of the petitioner, a resident of Guiguinto,
When the petitioner learned of
the issuance of the said warrant, she posted a personal bail bond to avert her
arrest and secure her provisional liberty.
Judge Demetrio B. Macapagal of the RTC of Quezon City approved the bond
and issued an order recalling the warrant of arrest against the
Thus, the posting of a
personal bail bond was a matter of imperative necessity to avert her
incarceration; it should not be deemed as a waiver of her right to assail her
So this Court ruled in People v. Red:38 cralawred
The present defendants were arrested towards the end of January,
1929, on the Island and Province of Marinduque by order of the judge of the
Court of First Instance of Lucena, Tayabas, at a time when there were no court
sessions being held in Marinduque.
view of these
circumstances and the
number of the accused, it may properly be held that the furnishing of the bond
was prompted by the sheer necessity of not remaining in detention, and in no
way implied their waiver of any right, such as the summary examination of the
case before their detention.
had no intention of waiving this right is clear from their motion of January
23, 1929, the same day on which they furnished a bond, and the fact that they
renewed this petition on February 23, 1929, praying for the stay of their
arrest for lack of the summary examination; the first motion being denied by
the court on January 24, 1929 (G.R. No. 33708, page 8), and the second
remaining undecided, but with an order to have it presented in Boac,
Therefore, the defendants herein cannot be said to have waived the
right granted to them by section 13, General Order No. 58, as amended by Act
No. 3042.39 cralawred
Moreover, the next day, or on June 16, 2000, the petitioner,
through counsel, received certified true copies of the Information, the
resolution of the investigating prosecutor, the affidavit-complaint of the
private complainant, respondent Maruyama, and a certification from the branch
clerk of court that only the Information, resolution and affidavit-complaint
formed part of the entire records of the case.
The next day, June 17, 2000, the petitioner, through counsel, filed a
verified motion for judicial determination of probable cause and to defer the
proceedings and her arraignment.
the foregoing are inconsistent with a waiver of her right to assail the
validity of her arrest and to question the respondent judges determination of
the existence of probable cause for her arrest.
Neither can the petitioners filing of a motion for the lifting
of the hold departure order and for leave to go to Japan be considered a waiver
of her right to assail the validity of the arrest warrant issued by the
It bears stressing
that when the petitioner filed the motion to lift the hold departure order
issued against her by the respondent judge, her motion for a determination of
probable cause was still unresolved.
She sought a lifting of the hold departure order on July 14, 2000 and
filed a motion for leave to go to Japan, to give the respondent judge an
opportunity to reconsider the said order, preparatory to assailing the same in
the appellate court in case her motion was denied.
The issue that now comes to fore is whether or not the respondent
judge committed a grave abuse of his discretion amounting to excess or lack of
jurisdiction in issuing his August 25, 2000 Order.By grave abuse of discretion is meant such patent and gross abuse
of discretion as to amount to an evasion of positive duty or a virtual refusal
to perform a duty enjoined by law, or to act at all in contemplation of law, as
where the power is exercised in an arbitrary and despotic manner by reasons of
passion or personal hostility.40 Hence, when the court has jurisdiction over the case, its questioned acts, even
if its findings are not correct, would at most constitute errors of law and not
abuse of discretion correctible by the extraordinary remedy of certiorari .41 cralawred
We agree with the petitioner that before the RTC judge issues a
warrant of arrest under Section 6, Rule 112 of the Rules of Court42 in relation to Section 2, Article III of the 1987 Constitution, the judge must
make a personal determination of the existence or non-existence of probable
cause for the arrest of the accused.
The duty to make such determination is personal and exclusive to the issuing judge.
He cannot abdicate his duty and rely on the
certification of the investigating prosecutor that he had conducted a
preliminary investigation in accordance with law and the Rules of Court, as
amended, and found probable cause for the filing of the Information.
Under Section 1, Rule 112 of the Rules on Criminal Procedure, the
investigating prosecutor, in conducting a preliminary investigation of a case
cognizable by the RTC, is tasked to determine whether there is sufficient
ground to engender a well-founded belief that a crime has been committed and
the respondent therein is probably guilty thereof and should be held for trial.
A preliminary investigation is for the
purpose of securing the innocent against hasty, malicious and oppressive
prosecution, and to protect him from an open and public accusation of a crime,
from the trouble, expense and anxiety of a public trial.43 cralawred
If the investigating prosecutor finds probable cause for the
filing of the Information against the respondent, he executes a certification
at the bottom of the Information that from the evidence presented, there is a
reasonable ground to believe that the offense charged has been committed and
that the accused is probably guilty thereof.
Such certification of the investigating prosecutor is, by itself,
It is not binding on the
Nor may the RTC rely on
the said certification as basis for a finding of the existence of probable
cause for the arrest of the accused.44 cralawred
In contrast, the task of the presiding judge when the Information
is filed with the court is first and foremost to determine the existence or
non-existence of probable cause for the arrest of the accused.
Probable cause is meant such set of facts
and circumstances which would lead a reasonably discreet and prudent man to
believe that the offense charged in the Information or any offense included
therein has been committed by the person sought to be arrested.45 In determining probable cause, the average man weighs facts and circumstances
without resorting to the calibrations of the rules of evidence of which he has
no technical knowledge.
He relies on
common sense.46 A finding of probable cause needs only to rest on evidence showing that more
likely than not a crime has been committed and that it was committed by the
Probable cause demands more
than bare suspicion, it requires less than evidence which would justify
The purpose of the mandate of the judge to first determine
probable cause for the arrest of the accused is to insulate from the very start
those falsely charged of crimes from the tribulations, expenses and anxiety of
a public trial:chanroblesvirtua1awlibrary
It must be stressed, however, that in these exceptional cases, the Court took the extraordinary step of annulling findings of probable cause either
to prevent the misuse of the strong arm of the law or to protect the orderly
administration of justice.
The constitutional duty of this Court in
criminal litigations is not only to acquit the innocent after trial but to
insulate, from the start, the innocent from unfounded charges.
For the Court is aware of the strains of a
criminal accusation and the stresses of litigation which should not be suffered
by the clearly innocent.
The filing of
an unfounded criminal information in court exposes the innocent to severe
distress especially when the crime is not bailable.Even an acquittal of the innocent will not fully bleach the dark
and deep stains left by a baseless accusation for reputation once tarnished
remains tarnished for a long length of time.
The expense to establish innocence may also be prohibitive and can be
more punishing especially to the poor and the powerless.
ought to be enough and the business of this Court is to shield the innocent
from senseless suits right from the start.48 cralawred
In determining the existence or non-existence of probable cause
for the arrest of the accused, the RTC judge may rely on the findings and
conclusions in the resolution of the investigating prosecutor finding probable
cause for the filing of the Information.
After all, as the Court held in Webb v. De Leon,49 the judge just personally reviews the initial determination of the
investigating prosecutor finding a probable cause to see if it is supported by
substantial evidence.50 However, in determining the existence or non-existence of probable cause for
the arrest of the accused, the judge should not rely solely on the said
report.51 The judge should consider not only the report of the investigating prosecutor
but also the affidavit/affidavits and the documentary evidence of the parties,
the counter-affidavit of the accused and his witnesses, as well as the
transcript of stenographic notes taken during the preliminary investigation, if
any, submitted to the court by the investigating prosecutor upon the filing of
the Information.52 Indeed, in Ho v. People,53 this Court held that:chanroblesvirtua1awlibrary
Lastly, it is not
required that the complete or entire records of the case during the
preliminary investigation be submitted to and examined by the judge.
We do not intend to unduly burden trial
courts by obliging them to examine the complete records of every case all the
time simply for the purpose of ordering the arrest of an accused.
What is required, rather, is that the judge
must have sufficient supporting
documents (such as the complaint, affidavits, counter-affidavits, sworn
statements of witnesses or transcripts of stenographic notes, if any) upon
which to make his independent judgment or, at the very least, upon which to
verify the findings of the prosecutor as to the existence of probable
The point is: he cannot rely
solely and entirely on the prosecutors recommendation, as Respondent Court did
in this case.
Although the prosecutor
enjoys the legal presumption of regularity in the performance of his official
duties and functions, which in turn gives his report the presumption of
accuracy, the Constitution, we repeat, commands the judge to personally determine probable cause in
the issuance of warrants of arrest.
This Court has consistently held that a judge fails in his bounden duty
if he relies merely on the certification or the report of the investigating
The rulings of this Court are now embedded in Section 8(a),
112 of the Revised Rules on Criminal Procedure which provides that an
Information or complaint filed in court shall be supported by the affidavits
and counter-affidavits of the parties and their witnesses, together with the
other supporting evidence of the resolution:chanroblesvirtua1awlibrary
SEC. 8. Records. (a) Records supporting the information or
An information or
complaint filed in court shall be supported by the affidavits and
counter-affidavits of the parties and their witnesses, together with the other
supporting evidence and the resolution on the case.
If the judge is able to determine the existence or non-existence
of probable cause on the basis of the records submitted by the investigating
prosecutor, there would no longer be a need to order the elevation of the rest
of the records of the case.
the judge finds the records and/or evidence submitted by the investigating
prosecutor to be insufficient, he may order the dismissal of the case, or
direct the investigating prosecutor either to submit more evidence or to submit
the entire records of the preliminary investigation, to enable him to discharge
his duty.55 The judge may even call the complainant and his witness to themselves answer
the courts probing questions to determine the existence of probable cause.56 The rulings of this Court in Soliven v. Makasiar57 and Lim v. Felix58 are now embodied in Section 6, Rule 112 of the Revised Rules on Criminal
Procedure, with modifications, viz:chanroblesvirtua1awlibrary
When warrant of arrest may issue. (a) By the Regional Trial Court. Within
ten (10) days from the filing of the complaint or information, the judge shall
personally evaluate the resolution of the prosecutor and its supporting
He may immediately dismiss
the case if the evidence on record clearly fails to establish probable
If he finds probable cause, he
shall issue a warrant of arrest, or a commitment order if the accused has
already been arrested pursuant to a warrant issued by the judge who conducted
the preliminary investigation or when the complaint or information was filed
pursuant to section 7 of this Rule.
case of doubt on the existence of probable cause, the judge may order the
prosecutor to present additional evidence within five (5) days from notice and
the issue must be resolved by the court within thirty (30) days from the filing
of the complaint of information.
In this case, the investigating prosecutor submitted to the
respondent judge only his resolution after his preliminary investigation of the
case and the affidavit-complaint of the private complainant, and failed to
include the affidavits of the witnesses of the private complainant, and the
latters reply affidavit, the counter-affidavit of the petitioner, as well as
the evidence adduced by the private complainant as required by case law, and
now by Section 8(a),
Rule 112 of the Revised Rules on Criminal Procedure.
The aforecited affidavits, more specifically
the fax message of Lorna Tanghal and the document signed by her covering the
amount of US$1,000, are of vital importance, as they would enable the
respondent judge to properly determine the existence or non-existence of
Maruyama handed the money to the petitioner, she did not require the latter to
sign a document acknowledging receipt of the amount.The petitioner avers that it is incredible that Maruyama would
P3,993,500 in Japanese Yen to her without even requiring her to
sign a receipt therefor, especially since respondent Maruyama was not even the
owner of the money;chanroblesvirtuallawlibrary
The affidavit of
Hermogena Santiago, a witness of the respondent, is unreliable, because it is
based on information relayed to her by Lorna Tanghal that she (Tanghal) saw the
petitioner carrying a Louis Vuitton bag while on board a Mitsubishi L300 van
with the petitioner.
It appears that
Tanghal failed to submit any counter-affidavit to the investigating prosecutor;chanroblesvirtuallawlibrary
The affidavit of
Marilette G. Izumiya, another witness of the respondent, is also unreliable, as
it was based on information relayed to her by Thelma Barbiran, who used to work
for the petitioner as a housemaid, that she (Barbiran) had in her possession a
fax message from Lorna Tanghal, implicating the petitioner in the crime
Barbiran did not execute any
There is no
indication in the resolution of the investigating prosecutor that the
petitioner received the fax message of Lorna Tanghal;chanroblesvirtuallawlibrary
complainant claims that the petitioner tried to reimburse the
by remitting US$1,000 to her.
the latter admitted in her affidavit-complaint that the document evidencing the
remittance was signed by Lorna Tanghal, not by the petitioner.
The petitioner claimed that Lorna Tanghal
had to remit US$1,000 to respondent Maruyama because the latter made it appear
to Tanghal that the police authorities were about to arrest the petitioner, and
Tanghal was impelled to give the amount to respondent Maruyama to avert her
arrest and incarceration;chanroblesvirtuallawlibrary
counter-affidavit, the petitioner alleged that respondent Maruyama had no case
against her because the crime charged in the latters affidavit-complaint was
the same as that filed against her in the Metropolitan Trial Court of Bulacan,
which was withdrawn by the complainant herself;chanroblesvirtuallawlibrary
investigating prosecutor stated in his resolution that the private complainant
established the element of deceit.
However, the crime charged against the petitioner as alleged in the
Information is estafa with abuse of
In sum, then, we find and so declare that the respondent judge
committed a grave abuse of his discretion amounting to excess or lack of
jurisdiction in finding probable cause for the petitioners arrest in the
absence of copies of the affidavits of the witnesses of the private complainant
and her reply affidavit, the counter-affidavit of the petitioner, and the
evidence adduced during the preliminary investigation before the investigating
In view of the foregoing disquisitions, there is no more need to
resolve the other issues raised by the petitioner.
IN LIGHT OF ALL THE
FOREGOING, the petition is GRANTED.
The assailed decision of the Court of Appeals is REVERSED and SET
The assailed Orders dated August
25 and 28, 2000 and the Warrant of Arrest issued by the respondent judge in
Criminal Case No. 00-0749 are SET ASIDE.
The records are REMANDED to the Regional Trial Court of Pasay City,
The respondent judge is
hereby DIRECTED to determine the existence or non-existence of probable cause
for the arrest of the petitioner based on the complete records, as required
under Section 8(a),
Rule 112 of the Revised Rules on Criminal Procedure.
Quisumbing, (Acting Chairman),
Austria-Martinez, and TINGA, JJ., concur.
Puno, (Chairman), J., on
1 Penned by Associate Justice Ramon A. Barcelona with Associate Justices Rodrigo
V. Cosico and Alicia S. Santos concurring.
2 Annex O, Rollo, pp. 119-133.
4 Annex P, Rollo, pp. 134-138.
5 Annex Q, Id. at 139-140.
13 Annex V, Id. at 163-164.
17 Annex BB, id. at 198-199.
18 Annex DD, id. at 223-224.
19 Penned by Associate Justice Ramon A. Barcelona with Associate Justices Rodrigo
V. Cosico and Alicia S. Santos concurring.
32 Herrera, Remedial Law, 2001 ed., Vol. IV, p. 438.
42 The assailed orders and warrant of arrest were issued before the Revised Rules
on Criminal Procedure took effect.
43 People v. Poculan, 167 SCRA 176
44 People v. Inting, 187 SCRA 788
45 Webb v. De Leon, 247 SCRA 652 (1995).
48 Dissenting opinion of Mr. Justice Reynato S. Puno in Roberts, Jr. v. Court of Appeals, supra.
50 People v. Inting, supra.
52 Soliven v. Makasiar, supra.
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