Philippine Supreme Court Resolutions > Year 2007 > November 2007 Resolutions > [G.R. No. 177523 : November 27, 2007] EDGAR A. BAGAS V. SECRETARY RAUL M. GONZALEZ, DEPARTMENT OF JUSTICE, JACINTO G. ANG, CITY PROSECUTOR, AMERHASSAN C. PAUDAC, 1ST ASST. CITY PROSECUTOR, AND ERNESTO M. SULAR, JR., ASST. CITY PROSECUTOR II, ET AL. :

Quoted hereunder for your information, is a resolution of the Court En Banc dated November 27, 2007

"G.R. No. 177523 (Edgar A. Bagas v. Secretary Raul M. Gonzalez, Department of Justice, Jacinto G. Ang, City Prosecutor, Amerhassan C. Paudac, 1st Asst. City Prosecutor, and Ernesto M. Sular, Jr., Asst. City Prosecutor II, et al).�This resolves the instant Petition for Certiorari and Prohibition with Prayer for Writ of Preliminary Injunction or Temporary Restraining Order filed under Sections 1 and 2, Rule 65 in relation to Section 1, Rule 58 of the 1997 Rules of Court by petitioner Edgar A. Bagas, seeking the nullification of Department Circular No. 29 dated 15 July 2005 issued by the Department of Justice (DOJ).

Petitioner, together with Samuel Balandra, Ismael Bongar and Crispin del Carmen, was charged before the Office of the City Prosecutor, Pasig City with the crime of qualified theft^[1] in a Complaint^[2] filed by respondent Pedro Garrido, in representation of Precision Crestec, Inc. (Precision). The charge was in relation to pilferage of imported clay-coated news boards owned by Precision allegedly perpetrated in conspiracy with one another by petitioner as well as Balandra, Bongar and Del Carmen�all employees of Precision�who had unbridled access to the said raw materials.

On 22 February 2007, Investigating Prosecutor Ernesto M. Sulat, Jr., finding probable cause to bring the accused to trial, issued a Resolution^[3] to that effect, and recommended no bail pursuant to Department of Justice (DOJ) Circular No. 29.^[4] Petitioner moved for reconsideration of the said resolution challenging in the main the legality of the prosecutor's recommendation. On even date, an Information^[5] was filed with the Regional Trial Court of Pasig City, Branch 154, the accusatory portion of which reads:

On or about or prior to April 4, 2006, in Pasig City and within the jurisdiction of this Honorable Court, the accused, Ismael Bongar and Crispin Del Carmen, being then warehouse . clerks of complainant. Precision Crestec, Inc., Samuel Balandra being then warehouse supervisor and Edgardo Bargas being then warehouse dispatcher of TJ Logistics, a rister company of complainant, conspiring and confederating together, and all of them mutually helping and aiding one another, and who have access to the property of the latter, with grave abuse of confidence, with intent to gain and without the knowledge and consent of the owner thereof, did then and there willfully, unlawfully and feloniously take, steal and carry away for their own benefits the following items, to wit:

a) Two (2) skids consisting of 2,500 sheets measuring 585mm x 825mm of grey back CCNB. with a value of P11,825.00 at P4.73/sheet;

b) Sixteen (16) skids consisting of 32,000 sheets (2.000 sheets/skid) measuring 706mm x 574mm of grey back CCNB, with a value of P128,640.00 at P4.02/ sheet;

c) Two (2) skids consisting of 2,400 sheets measuring 662mm x 885mm of grey back CCNB, with a value of P1 3,848.00 at P5.77/sheet;

d) Six (6) skids consisting of 13.800 sheets (2,300 sheets/skid) measuring 688mm x 792mm of grey back CCNB with a value of �62,652.00 at P4.54/sheet; and

e) Eight (8) skids consisting of 27,240 sheets of white back CCNB. with a value of P119,952.00 at P4.41 /sheet

all in the total amount of P336,917.00 belonging to Precision Crestec. Inc. represented by Pedro A. Garrido to the damage of (sic) prejudice of the letter in the aforecited amount.

Contrary to law.^[6]

Petitioner filed an Urgent Motion to Suspend Proceedings and Motion to Mold in Abeyance the Issuance of Warrant of Arrest^[7] in view of the pendency of his motion for reconsideration of the prosecutor's resolution. On 2 April 2007, the trial court motu proprio issued an order setting the case for presentation of additional evidence on the existence of probable cause for the issuance of the arrest warrant.^[8] At the hearing, petitioner orally manifested his intention to question before the Supreme Court the legality of DOJ Circular No. 29. Hence, the instant petition.

Petitioner asserts that DOJ Circular No. 29 is unconstitutional for being contrary to Article III, Section 13 of the Constitution^[9] and that it violates Articles 50^[10] and 51^[11] in relation to Article 71^[12] of the Revised Penal Code as well as Rule 114, Section 7^[13] of the Rules on Criminal Procedure. For quick reference, the circular is reproduced below:

DEPARTMENT CIRCULAR NO. 29

TO: ALL PROSECUTORS IN THE NATIONAL PROSECUTION SERVICE

SUBJECT: AMENDING DEPARTMENT CIRCULAR NO. 74 DATED 06 NOVEMBER 2001 INVOLVING QUALIFIED THEFT WHEN THE VALUE OF THE PROPERTY STOLEN IS P222,000.00 OR MORE

DATE: 15 JULY 2005

WHEREAS, Section 7. Rule 114 of the Revised Rules of Criminal Procedure, insofar as pertinent, provides that no person charged with an offense punishable by reclusion perpetua or life imprisonment shall be admitted to bail when the evidence of guilt is strong;

WHEREAS, said provision notwithstanding, DOJ Circular No. 74 dated 06 November 2001 provides for the grant of bail for the offense of qualified theft where the value of the property stolen is P222.000.00 or more despite the imposable penalty of reclusion perpetua therefor;

WHEREAS, this policy of leniency is accorded the accused under DOJ Circular No. 74 has been recognized and applied in recent decisions of the Supreme Court;

WHEREAS, there is a need to prevent this policy from shielding those charged with large-scale thievery;

WHEREAS, pursuant to the provisions of existing laws, no bail shall be recommended for the offense of qualified theft, whether consummated, frustrated or attempted, where the value of the property stolen is P222,000.00 or more, xxx^[14]

Petitioner believes that DOJ Circular No. 29's directive to prosecutors to recommend no bail for the offense of qualified theft where the property stolen is P222,000.00 or more in effect denies bail to all those charged with offenses punishable by reclusion perpetua or death regardless of whether the evidence of guilt is strong or not. He argues that under Article III, Section 13 of the Constitution and Rule 117, Section 7 of the Rules on Criminal Procedure, it is only when the evidence of guilt is strong that an offense punishable by reclusion perpetua becomes non-bailable.

The petition must fail.

The assailed circular operates merely as an internal guideline for prosecutors in making recommendations to courts relative to bail applications. This is evident in the circular itself as it is addressed to "all prosecutors in the national prosecution service"^[15] and not to the judges of courts over whom respondent Secretary of Justice exercises no control or supervision. Thus, such recommendation although persuasive is just that�i.e., recommendatory and not necessarily-binding on the court.^[16]

In other words, it is still the trial court judge, in the exercise of his discretion, who ultimately decides whether a person charged with a capital offense or of an offense punishable by reclusion perpetua or life imprisonment, may be granted provisional liberty on bail. Notwithstanding DOJ Circular No. 29, this discretion still remains to be within the exclusive domain of the trial judge and has never been
reposed in the prosecutor.^[17] Clearly then, petitioner, even given the no-bail recommendation of the prosecutor, is not barred from seeking provisional liberty by filing his bail application with the trial court.^[18]

WHEREFORE, in light of the foregoing, the Court hereby RESOLVES to DISMISS the petition for lack of merit."

Puno, C.J., and Quisumbing, J., on official leave.

Endnotes:

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^[1] Rollo, p. 37

^[2] ld. at 38-44.

^[3] ld. at 32-36.

^[4] ld. at 31.

^[5] Id. at 71-73.

^[6] Id at 71-72.

^[7] Id. at 76-78.

^[8] Id. at 80.

^[9] Section 13. Ml persons, except those charged with offenses punishable by redusion perpelua when the evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law xxx.

^[10] Art. 50. Penally to be imposed upon principals of a frustrated crime. � The penalty next lower in degree than that prescribed by law for the consummated felony shall be imposed upon the principal in a frustrated felony.

^[11] Art. 5 1. Penally lo be imposed upon principals of attempted crimes � A penalty lower by two degrees than that prescribed by law for the consummated felony shall be imposed upon the principals in an attempt to commit a felony,

^[12] Art. 71. Graduated scales. � In the case in which the law prescribed a penalty lower or higher by one or more degrees than another given penalty, the rules prescribed in Article 61 shall be observed in graduating such penalty.

^[13] Capital offense punishable by redusion perpelua or life imprisonment, not bailable. - No person charged with a capital offense punishable by redusion perpelua or life imprisonment shall be admitted to bail when the evidence of guilt is strong, regardless of the stage of the proceedings.

^[14] Rollo, p. 3

^[15] Id.

^[16] Marzan-Gelacio v. Flores, A.M. No. RTJ-99-.48S, 20 June 2000. 334 SCRA 1, 9, citing Amaya v. Ordonez. G.R. No. 80906, 5 September 1988.

^[17] Narciso v.Sta. Romana-Cruz, G.R. No. 34504, 17 March 2000, 328 SCRA 505, 515.

^[18] People , Hu Ruey Chun, G.R. No. 158064, 30 June 2005, 462 SCRA 498. 511.