(3) the petitioner’s omnibus motion for

G.R. No. 101837 February 11, 1992 immediate release and preliminary
investigation was treated as a petition for
ROLITO GO y TAMBUNTING, petitioner, vs. THE bail.
COURT OF APPEALS, THE HON. BENJAMIN V.
PELAYO, Presiding Judge, Branch 168, Regional Subsequently, petitioner filed a petition for
Trial Court, NCJR Pasig, M.M., and PEOPLE OF certiorari, mandamus before the Supreme Court
THE PHILIPPINES, respondents. assailing the RTC Order, contending that the
Ponente: FELICIANO, J.: information was null and void because no
preliminary investigation had been previously
FACTS: conducted, in violation of his right to due process.
On July 2, 1991, Rolito Go (petitioner) while Petitioner also moved for suspension of all
traveling in the wrong direction on a one-way proceedings in the case pending resolution but
street, nearly bumped Eldon Maguan’s car. Go the SC of his petition; this motion was, however
alighted from his car, shot Maguan and left the denied by respondent Judge.
scene. A security guard at a nearby restaurant By a Resolution, the SC, remanded the petition
was able to take down petitioner’s car plate for certiorari, prohibition and mandamus to the
number. The police arrived shortly thereafter at Court of Appeals.
the scene of the shooting. A manhunt ensued.
On 23 August 1991, respondent judge issued a
While an information for frustrated homicide Commitment Order directing the Provincial
could be filed in court, Eldon Maguan died of his Warden of Rizal to admit petitioner into his
gunshot wounds. Accordingly, on July 11, 1991, custody at the Rizal Provincial Jail. On the same
the Prosecutor filed an information of murder date, petitioner was arraigned. In view, however,
before the Regional Trial Court. No bail was of his refusal to enter a plea, the trial court
recommended. At the bottom of the information, entered for him a plea of not guilty.
the Prosecutor certified that no preliminary
investigation had been conducted because the On 19 September 1991, trial of the criminal case
accused did not execute and sign a waiver of the commenced and the prosecution presented its
provisions of Article 125 of the Revised Penal first witness.
Code.
On 23 September 1991, the Court of Appeals
Counsel for the petitioner file with the Prosecutor rendered a decision dismissing the petition for
an Omnibus motion for immediate release on certiorari, prohibition and mandamus on the
recognizance or on bail and proper preliminary following grounds:
investigation on the ground that his warrantless
arrest was unlawful and no preliminary a. Petitioner's warrantless arrest was valid
investigation was conducted before the because the offense for which he was arrested
information was filed, which is violative of his and charged had been "freshly committed."
rights, the same was granted by Provincial b. Petitioner's act of posting bail constituted
Prosecutor Castro. waiver of any irregularity attending his arrest. He
Petitioner file an urgent ex-parte motion for waived his right to preliminary investigation by
special raffle in order to expedite action on not invoking it properly and seasonably under the
Prosecutor’s bail recommendation. The case was Rules.
raffled to the sala of Judge Pelayo and he c. The trial court did not abuse its discretion when
approved the cash bond posted by the petitioner it issued the 17 July 1991 Order because the trial
and ordered his release. court had the inherent power to amend and
The Prosecutor filed with the RTC a motion for control its processes so as to make them
leave to conduct preliminary investigation and conformable to law and justice.
prayed that in the meantime all proceedings in xxxx
the court be suspended. The trial court issued an
Order granting leave to conduct preliminary On 3 October 1991, the prosecution presented
investigation and cancelling the arraignment until three (3) more witnesses at the trial.
after the prosecution shall have concluded its
On 4 October 1991, the present Petition for
preliminary investigation.
Review on Certiorari was filed.
However, on July 17, 1991, Judge Pelayo motu
TOPIC 1. Warrantless Arrest
proprio issued an Order, to wit
ISSUE #1:
(1) the order granting the bail was recalled;
petitioner was given 48 hours from receipt Whether or not a lawful warrantless has been
of the Order to surrender himself; effected by the San Juan Police in respect of
petitioner Go
(2) the order which granted leave to the
prosecutor to conduct preliminary Prosecution’s Contention:
investigation was recalled and cancelled;
and The Solicitor General argues that under the facts
of the case, petitioner had been validly arrested
without warrant.
Since petitioner's identity as the gunman who Section 5 of Rule 113 of the 1985 Rules on
had shot Eldon Maguan on 2 July 1991 had been Criminal Procedure which provides as follows:
sufficiently established by police work, petitioner
was validly arrested six (6) days later at the San Sec. 5 Arrest without warrant; when lawful. — A
Juan Police Station. peace officer or a private person may, without
warrant, arrest a person:
The Solicitor General invokes Nazareno
v.  Station Commander, etc., et al.,  (G.R. No. (a) When, in his presence, the person to be
86332, July 9, 1990) one of the seven (7) cases arrested has committed, is actually committing,
consolidated with In the Matter of the Petition for or is attempting to commit an offense;
Habeas Corpus of Roberto Umil, etc., v. Ramos, (b) When an offense has in fact just been
et al. G.R. No. 81567, October 3, 1991, where a committed, and he has personal knowledge of
majority of the Court upheld a warrantless arrest facts indicating that the person to be arrested
as valid although effected fourteen (14) days has committed it; and
after the killing in connection with which
Nazareno had been arrested. (c) When the person to be arrested is a prisoner
who has escaped from a penal establishment or
Accordingly, in the view of the Solicitor General, place where he is serving final judgment or
the provisions of Section 7, Rule 112 of the 1985 temporarily confined while his case is pending, or
Rules of Court were applicable and because has escaped while being transferred from one
petitioner had declined to waive the provisions of confinement to another.
Article 125 of the Revised Penal Code, the
Prosecutor was legally justified in filing the In cases falling under paragraphs (a) and (b)
information for murder even without preliminary hereof, the person arrested without a warrant
investigation. shall be forthwith delivered to the nearest police
station or jail, and he shall be proceeded against
Defense’s Contention: in accordance with Rule 112, Section 7.
Petitioner argues that he was not lawfully Petitioner's "arrest" took place six (6) days after
arrested without warrant because he went to the the shooting of Maguan. The "arresting" officers
police station six (6) days after the shooting obviously were not present, within the meaning
which he had allegedly perpetrated. Thus, of Section 5(a), at the time petitioner had
petitioner argues, the crime had not been "just allegedly shot Maguan.
committed" at the time that he was arrested.
Moreover, none of the police officers who Neither could the "arrest" effected six (6) days
arrested him had been an eyewitness to the after the shooting be reasonably regarded as
shooting of Maguan and accordingly none had the effected "when [the shooting had] in fact just
"personal knowledge" required for the lawfulness been committed" within the meaning of Section
of a warrantless arrest. Since there had been no 5(b). Moreover, none of the "arresting" officers
lawful warrantless arrest. Section 7, Rule 112 of had any "personal knowledge" of facts indicating
the Rules of Court which establishes the only that petitioner was the gunman who had shot
exception to the right to preliminary Maguan. The information upon which the police
investigation, could not apply in respect of acted had been derived from statements made
petitioner. by alleged eyewitnesses to the shooting — one
stated that petitioner was the gunman; another
RULING: NO lawful warrantless has been was able to take down the alleged gunman's car's
effected plate number which turned out to be registered in
The reliance of both petitioner and the Solicitor petitioner's wife's name. That information did not,
General upon Umil v. Ramos is, in the however, constitute "personal knowledge." 
circumstances of this case, misplaced. It is thus clear to the Court that there was no
In Umil v. Ramos, by an eight-to-six vote, the lawful warrantless arrest of petitioner within the
Court sustained the legality of the warrantless meaning of Section 5 of Rule 113.
arrests of petitioners made from one (1) to It is clear too that Section 7 of Rule 112, which
fourteen days after the actual commission of the provides:
offenses, upon the ground that such offenses
constituted "continuing crimes." Those offenses Sec. 7 When accused lawfully arrested without
were subversion, membership in an outlawed warrant. —  When a person is lawfully arrested
organization like the New People's Army, etc. In without a warrant for an offense cognizable by
the instant case, the offense for which petitioner the Regional Trial Court  the complaint or
was arrested was murder, an offense which was information may be filed by the offended party,
obviously commenced and completed at one peace officer or fiscal without a preliminary
definite location in time and space. No one had investigation having been first conducted, on the
pretended that the fatal shooting of Maguan was basis of the affidavit of the offended party or
a "continuing crime." arresting office or person

Secondly, the Supreme Court did not believe that However,  before the filing of such complaint or
the warrantless "arrest" or detention of petitioner information, the person arrested may ask for a
in the instant case falls within the terms of preliminary investigation by a proper officer in
accordance with this Rule, but he must sign a
waiver of the provisions of Article 125 of the Prosecutor an omnibus motion for immediate
Revised Penal Code, as amended, with the release and preliminary investigation.
assistance of a lawyer and in case of non-
availability of a lawyer, a responsible person of RULING:
his choice.  Notwithstanding such waiver, he may On Solicitor General’s Contention:
apply for bail  as provided in the corresponding
rule and the investigation must be terminated The Supreme Court did not believe that waiver of
within fifteen (15) days from its inception. petitioner's statutory right to preliminary
investigation may be predicated on such a slim
If the case has been filed in court without a basis.
preliminary investigation having been first
conducted, the accused may within five (5) days The preliminary investigation was to be
from the time he learns of the filing of the conducted by the Prosecutor, not by the Regional
information, ask for a preliminary Trial Court. It is true that at the time of filing of
investigation with the same right to adduce petitioner's omnibus motion, the information for
evidence in his favor in the manner prescribed in murder had already been filed with the Regional
this Rule. Trial Court: it is not clear from the record whether
petitioner was aware of this fact at the time his
is also not applicable. omnibus motion was actually filed with the
Indeed, petitioner was not arrested at all. When Prosecutor.
he walked into San Juan Police Station, In Crespo v. Mogul (151 SCRA 462 (1987) this
accompanied by two (2) lawyers, he in fact Court held:
placed himself at the disposal of the police
authorities. He did not state that he was The preliminary investigation conducted by the
"surrendering" himself, in all probability to avoid fiscal for the purpose of determining whether a
the implication he was admitting that he had slain prima facie case exists to warranting the
Eldon Maguan or that he was otherwise guilty of a prosecution of the accused is terminated upon
crime. the filing of the information in the proper court. In
turn, as above stated, the filing of said
When the police filed a complaint for frustrated information sets in motion the criminal action
homicide with the Prosecutor, the latter should against the accused in Court. Should the fiscal
have immediately scheduled a preliminary find it proper to conduct a reinvestigation of the
investigation to determine whether there was case, at such stage, the permission of the Court
probable cause for charging petitioner in court for must be secured. After such reinvestigation the
the killing of Eldon Maguan. Instead, as noted finding and recommendations of the fiscal should
earlier, the Prosecutor proceed under the be submitted to the Court for appropriate action.
erroneous supposition that Section 7 of Rule 112 While it is true that the fiscal has the quasi-
was applicable and required petitioner to waive judicial discretion to determine whether or not a
the provisions of Article 125 of the Revised Penal criminal case should be filed in court or not, once
Code as a condition for carrying out a preliminary the case had already been brought to Court
investigation. whatever disposition the fiscal may feel should be
This was substantive error, for petitioner was proper in the case thereafter should be addressed
entitled to a preliminary investigation and that for the consideration of the Court. The only
right should have been accorded him without any qualification is that the action of the Court must
conditions. Moreover, since petitioner had not not impair the substantial rights of the accused.,
been arrested, with or without a warrant, he was or the right of the People to due process of law.
also entitled to be released forthwith subject only Nonetheless, since petitioner in his omnibus
to his appearing at the preliminary investigation. motion was asking for preliminary investigation
TOPIC 2. Right to Preliminary Investigation and not for a re-investigation (Crespo v. Mogul
involved a re-investigation), and since the
ISSUE# 2: Prosecutor himself did file with the trial court, on
the 5th day after filing the information for
Whether or not petitioner effectively waived his murder, a motion for leave to conduct preliminary
right to preliminary investigation investigation (attaching to his motion a copy of
Prosecution’s Contention: petitioner's omnibus motion), the Supreme Court
concluded that petitioner's omnibus motion was
The Solicitor General contends that that omnibus in effect filed with the trial court. What was
motion should have been filed with the trial court crystal clear was that petitioner did ask for a
and not with the Prosecutor, and that the preliminary investigation on the very day that the
petitioner should accordingly be held to have information was filed without such preliminary
waived his right to preliminary investigation. investigation, and that the trial court was five (5)
days later apprised of the desire of the petitioner
Defense’s Contention:
for such preliminary investigation. Finally, the
Petitioner had from the very beginning demanded trial court did in fact grant the Prosecutor's
that a preliminary investigation be conducted. As prayer for leave to conduct preliminary
earlier pointed out, on the same day that the investigation. Thus, even on the (mistaken)
information for murder was filed with the supposition apparently made by the Prosecutor
Regional Trial Court, petitioner filed with the that Section 7 of Rule 112 of the Revised Court
was applicable, the 5-day reglementary period in In fact, when the Prosecutor filed a motion in
Section 7, Rule 112 must be held to have been court asking for leave to conduct preliminary
substantially complied with. investigation, he clearly if impliedly recognized
that petitioner's claim to preliminary investigation
ISSUE #2 RULING: was a legitimate one.
Petitioner did not waive his right to a preliminary TOPIC 3. Effects of Absence of Preliminary
investigation. Investigation
While that right is statutory rather than Petitioner’s Contention:
constitutional in its fundament, since it has in fact
been established by statute, it is a component Failure to accord preliminary investigation,
part of due process in criminal justice. The right impairs the validity of the information for murder
to have a preliminary investigation conducted and affect the jurisdiction of the court
before being bound over to trial for a criminal
offense and hence formally at risk of ISSUE #3:
incarceration or some other penalty, is not a Whether or not the absence of preliminary
mere formal or technical right; it is a substantive investigation impairs the validity of the
right. The accused in a criminal trial is inevitably information an affect the jurisdiction of the court
exposed to prolonged anxiety, aggravation,
humiliation, not to speak of expense; the right to RULING: NO
an opportunity to avoid a process painful to any
The Supreme would like to clarify, however, that
one save, perhaps, to hardened criminals, is a
contrary to petitioner's contention the failure to
valuable right. To deny petitioner's claim to a
accord preliminary investigation, while
preliminary investigation would be to deprive him
constituting a denial of the appropriate and full
the full measure of his right to due process.
measure of the statutory process of criminal
ISSUE #2-A: justice, did not impair the validity of the
information for murder nor affect the jurisdiction
Whether petitioner still retains his right to a of the trial court.(People v. Gomez, supra;
preliminary investigation in the instant case People v. Yutila, 102 SCRA 264 (1981);
considering that he was already arraigned on 23 People v. Casiano, 111 Phil. 73 (1961))
August 1991
GRIÑO-AQUINO, J., dissenting:
RULING: YES
It should be remembered that as important as is
The rule is that the right to preliminary the right of the accused to a preliminary
investigation is waived when the accused fails to investigation, it is not a constitutional right. Its
invoke it before or at the time of entering a plea absence is not a ground to quash the information
at arraignment. (Doromal vs. Sandiganbayan, 177 SCRA
In the instant case, petitioner Go had vigorously 354). It does not affect the court's jurisdiction,
insisted on his right to preliminary investigation nor impair the validity of the information (Rodis
before his arraignment. At the time of his vs. Sandiganbayan, 166 SCRA 618), nor
arraignment, petitioner was already before the constitute an infringement of the right of the
Court of Appeals on certiorari, prohibition and accused to confront witnesses (Bustos vs.
mandamus precisely asking for a preliminary Lucero, 81 Phil. 640).
investigation before being forced to stand trial. TOPIC 4. Remedy of the Accused in case of
ISSUE #2-B: Absence of Preliminary Investigation

Whether by posting bail petitioner had waived his FOOTNOTE 26:

right to preliminary investigation. In Paredes v.  Sandiganbayan  (193 SCRA 464
RULING: NO [1991]), the Court stated:

In People v. Selfaison, we did hold that ". . . The remedy of the accused  in such a case
appellants there had waived their right to is to call the attention of the court to the lack of a
preliminary investigation because immediately preliminary investigation and demand, as a
after their arrest, they filed bail and proceeded to matter of right, that one be conducted. The
trial "without previously claiming that they did court, instead of dismissing the
not have the benefit of a preliminary information, should merely suspend the trial and
investigation." order the fiscal to conduct a preliminary
investigation. Thus did we rule in Ilagan
In the instant case, petitioner Go asked for v.  Enrile,  139 SCRA 349." (193 SCRA at 469)
release on recognizance or on bail and for
preliminary investigation in one omnibus motion. TOPIC 5.
He had thus claimed his right to preliminary How does the fact that, in the instant case, trial
investigation before respondent Judge approved on the merits has already commenced, the
the cash bond posted by petitioner and ordered Prosecutor having already presented four (4)
his release on 12 July 1991. Accordingly, the witnesses, impact upon;
Supreme Court cannot reasonably imply waiver of
preliminary investigation on the part of petitioner.
 (1) petitioner's right to a preliminary into the record would be to legitimize the
investigation; and, deprivation of due process and to permit the
Government to benefit from its own wrong or
(2) petitioner's right to be released on bail culpable omission and effectively to dilute
ISSUE #5A: important rights of accused persons well-nigh to
the vanishing point. It may be that to require the
Does the petitioner continue to be entitled to State to accord petitioner his rights to a
have a preliminary investigation conducted in preliminary investigation and to bail at this point,
respect of the charge against him? could turn out ultimately to be largely a
ceremonial exercise. But the Court is not
RULING: YES
compelled to speculate. And, in any case, it would
Petitioner remains entitled to a preliminary not be idle ceremony; rather, it would be a
investigation although trial on the merits has celebration by the State of the rights and liberties
already began. of its own people and a re-affirmation of its
obligation and determination to respect those
Trial on the merits should be suspended or held in rights and liberties.
abeyance and a preliminary investigation
forthwith accorded to petitioner. (REMEDY) OTHER TOPIC:

Petitioner was forced to undergo arraignment and 1. HABEAS CORPUS

literally pushed to trial without preliminary
On 27 August 1991, petitioner filed a petition for
investigation, with extraordinary haste, to the
habeas corpus in the Court of Appeals. He alleged
applause from the audience that filled the
that in view of public respondent's failure to join
courtroom. If he submitted to arraignment at trial,
issues in the petition for certiorari earlier filed by
petitioner did so "kicking and screaming," in a
him, after the lapse of more than a month, thus
manner of speaking.
prolonging his detention, he was entitled to be
During the proceedings held before the trial court released on habeas corpus.
on 23 August 1991, the date set for arraignment
On 30 August 1991, the Court of Appeals issued
of petitioner, and just before arraignment,
the writ of habeas corpus.
counsel made very clear petitioner's vigorous
protest and objection to the arraignment The petition for certiorari, prohibition and
precisely because of the denial of preliminary mandamus, on the one hand, and the petition for
investigation. habeas corpus, upon the other, were
subsequently consolidated in the Court of
During the trial, before the prosecution called its
Appeals.
first witness, petitioner through counsel once
again reiterated his objection to going to trial On 23 September 1991, the Court of Appeals
without preliminary investigation: petitioner's rendered a consolidated decision 14 dismissing
counsel made of record his "continuing the two (2) petitions, on the following grounds:
objection."
Xxx
Petitioner had promptly gone to the appellate
court on certiorari and prohibition to challenge d. Since there was a valid information for murder
the lawfulness of the procedure he was being against petitioner and a valid commitment order
forced to undergo and the lawfulness of his (issued by the trial judge after petitioner
detention. surrendered to the authorities whereby petitioner
was given to the custody of the Provincial
ISSUE #5-B: Warden), the petition for habeas corpus could not
be granted.
Does the petitioner remain entitled to be released
on bail? The issue on the issuance of the writ of habeas
corpus was not raised in the petition for certiorari
RULING: YES
filed in the Supreme Court.
Petitioner remains entitled to be released on bail
as a matter of right.

Should the evidence already of record concerning

petitioner's guilt be, in the reasonable belief of
the Prosecutor, strong, the Prosecutor may move
in the trial court for cancellation of petitioner's
bail. It would then be up to the trial court, after a
careful and objective assessment of the evidence
on record, to grant or deny the motion for
cancellation of bail.

RATIO:

To reach any other conclusions here, that is, to

hold that petitioner's rights to a preliminary
investigation and to bail were effectively
obliterated by evidence subsequently admitted