B. JOSE CASTILLO, PETITIONER, VS. HON. ONOFRE A. VILLALUZ, JUDGE, CIRCUIT CRIMINAL COURT, 7TH JUDICIAL DISTRICT, RENATO MONTES AND JOSE DE SILVA, RESPONDENTS.

Judges of Regional Trial Courts (formerly Courts of First
Instance) no longer have authority to conduct preliminary investigations. That authority, at one time reposed in them
under Sections 13, 14 and 16, Rule 112 of the Rules of Court of 1964,^[1]
was removed from them by the 1985 Rules on Criminal Procedure, effective on
January 1, 1985,^[2]
which deleted all provisions granting that power to said Judges. We had occasion to point this out in Salta
v. Court of Appeals, 143 SCRA 228, and to stress as well certain other
basic propositions, namely: (1) that
the conduct of a preliminary investigation is “not a judicial function **
(but) part of the prosecution’s job, a function of the executive;” (2)
that wherever “there are enough fiscals or prosecutors to conduct
preliminary investigations, courts are counseled to leave this job which is
essentially executive to them,” and the fact “that a certain power is
granted does not necessarily mean that it should be indiscriminately
exercised.”

The 1988 Amendments to the 1985 Rules on Criminal
Procedure, declared effective on October 1, 1988,^[3]
did not restore that authority to Judges of Regional Trial Courts; said
amendments did not in fact deal at all with the officers or courts having
authority to conduct preliminary investigations.

This is not to say, however, that somewhere along the line RTC
Judges also lost the power to make a preliminary examination for the purpose
of determining whether probable cause exists to justify the issuance of a
warrant of arrest (or search warrant). Such a power — indeed, it is as much a duty as it is a power — has
been and remains vested in every judge by the provision in the Bill of Rights
in the 1935, the 1973 and the present (1987) Constitutions securing the people
against unreasonable searches and seizures,1 thereby placing it beyond the
competence of mere Court rule or statute to revoke. The distinction must, therefore, be made clear while an RTC Judge
may no longer conduct preliminary investigations to ascertain whether there is
sufficient ground for the filing of a criminal complaint or information,2 he
retains the authority, when such a pleading is filed with his court, to
determine whether there is probable cause justifying the issuance of a warrant
of arrest.3 It
might be added that this distinction accords, rather than conflicts, with the rationale
of Salta because both law and rule, in restricting to judges the
authority to order arrest, recognize that function to be judicial in nature.4

The proceedings at bar have reference to the law in 1971, at
which time a preliminary investigation (now in question) was conducted by
respondent Judge of the Circuit Criminal Court.5 He did so with respect to a
complaint dated July 9, 1971 (and Joint Affidavit dated July 21, 1971) filed
directly with his Court by Renato Montes and Jose de Silva against Manuel
Laconico. The complaint charged the
latter with estafa in the amount of P1,000.00. The investigation culminated in the issuance by respondent Judge
of an Order on July 28, 19716 containing the following
dispositive portion:

WHEREFORE, there being a preliminary examination and investigation
conducted by the Court and considering that the respondent was given a chance
to defend himself, let a warrant be issued for his apprehension. The respondent is hereby ordered to post a
bond in the amount of P3,000.00 for his provisional release.

Pursuant to Section 6, Rule 135 of the New Rules of Court, in
relation to Section 13, Rule 112 thereto, the Provincial Fiscal of Rizal is
hereby ordered to file the corresponding information against the respondent
before the court of competent jurisdiction within TWENTY-FOUR(24) hours from
receipt hereof.

SO ORDERED.

Notice of the Order was served on the Provincial Fiscal of Rizal,
herein petitioner, on July 29, 1971, but he failed to file the information
required within the time appointed, or at any time thereafter. Consequently, on October 1, 1971, he was
directed by His Honor to explain within ten (10) days “why he should not
be punished for contempt of court for delaying the speedy administration of
justice for disobeying a lawful order of the Court.”1
The Fiscal filed a motion for reconsideration,2 but this was denied, by Order dated
October 19, 1971.3 Hence, this petition for certiorari
and prohibition was presented by petitioner Fiscal, seeking annulment of the
aforesaid orders.

Petitioner submits that –

1)     
His Honor had no jurisdiction to conduct preliminary
investigations, because the law creating Circuit Criminal Courts, R.A. No.
5179, conferred on said courts only the power to try and decide, concurrently
with the regular courts of first instance, certain specific criminal cases, but
not the power to conduct preliminary investigations;

2)     
a preliminary investigation is not a part of a trial or the
rendition of a decision; it is a function which may very well be left to the
public prosecutors as its discharge would unduly burden judges;

3)     
even assuming power in the respondent to conduct preliminary
investigations, the power does not include the compulsion of a provincial
fiscal, under sanction of contempt, to file an information in court without
conducting his own preliminary investigation; the conduct thereof is a primary
duty of his; as the official charged with the responsibility of instituting and
prosecuting criminal cases in court, the determination of the sufficiency of
the evidence to warrant such institution and prosecution is made to rest by law
upon his sound discretion.

During the time that it existed,4 the Circuit Criminal Court had the
same power as a Court of First Instance to conduct preliminary investigations
of offenses cognizable by it. So we
have ruled in two (2) cases: Collector
of Customs v. Villaluz, 71 SCRA 356,5 and de Guzman v. Villaluz,
117 SCRA 182.6

Now, His Honor was evidently of the view that his determination
of the existence of probable cause, founded on the results of his own
preliminary investigation, was the last word on the matter, and the Provincial
Fiscal had no option except to draw up and file the information on the basis of
said preliminary investigation. This is
why respondent Judge gave petitioner Fiscal only twenty-four (24) hours
“to file the corresponding information.”

The Judge is mistaken. It
is the fiscal who is given by law “direction and control” of all
criminal actions.7 It is he who initiates all
prosecutions in the name of the People of the Philippines, by information or
complaint, against all persons who appear to be responsible for the offense
involve1 It
is he (or other public prosecutor), therefore, who is primarily responsible for
ascertaining through a preliminary inquiry or proceeding “whether there is
reasonable ground to believe that an offense has been committed and the accused
is probably guilty thereof.”2 That function, to repeat, is not
judicial but executive. When a
preliminary investigation is conducted by a judge, the judge performs a
non-judicial function, as an exception to his usual judicial duties. The assignment of that function to judges of
inferior courts and to a very limited extent to courts of first instance was
dictated by “necessity and practical considerations,” and the
consequent policy; as we said in Salta, was that “wherever there
were enough fiscals or prosecutors to conduct preliminary investigations,
courts were to leave that job which is essentially executive to them.” It
follows that the conclusions derived by a judge from his own investigation
cannot be superior to and conclusively binding on the fiscal or public
prosecutor, in whom that function is principally and more logically
lodged. These considerations argue
against giving the term “refer” used in Section 13 of the former Rule
112 — which provided that if the judge, after conducting a preliminary
investigation finds probable cause against a defendant, “** he shall issue a
warrant for his arrest, and thereafter refer the case to the fiscal for
the filing of the corresponding information” — the effect of imposing
upon the fiscal the mandatory duty to file an information merely upon such
reference being made; and this, even without regard to the fact that in its
ordinary sense, the word “refer” conveys no such import nor connotes
any compulsion. And it was no doubt on
account of these obvious considerations that, as Salta further observes,
Section 37 of Batas Pambansa Blg. 129 reiterated “the removal from
Judges of Metropolitan Trial Courts in the National Capital Region of the
authority to conduct preliminary investigation” and “Section 2 of Rule 112
of the 1985 Rules on Criminal Procedure no longer authorizes Regional Trial
Judges to conduct preliminary investigations.” It may not be amiss to
point out, in this connection, that the 1988 Amendments to the 1985 Rules on
Criminal Procedure (Sec. 5, Rule 112) explicitly provide inter alia that
“(s)hould the provincial or city fiscal disagree with the findings of the
investigating judge on the existence of probable cause, the fiscal’s ruling
shall prevail.”3 Be it noted, however, that once the
fiscal files an information with the Court and the Court thereby acquires
jurisdiction over the case, the case may not be dismissed at the fiscal’s
instance except only by consent of the Court, which may grant or withhold it in
its discretion.4

It was therefore grave abuse of discretion amounting to lack of
jurisdiction on His Honor’s part to seek to foreclose the petitioner fiscal’s
prerogative to conduct his own preliminary investigation to determine for
himself the existence or non-existence of probable cause, and to require him to
show cause for not filing the information within twenty-four (24) hours, on the
sole basis of the Judge’s conclusions. The fiscal was not bound to a blind, uncritical and unavoidable
acceptance of those conclusions. He had
the duty to satisfy himself of the existence of probable cause, and could not
shirk or be made to evade it by an unreasoning and indiscriminate reliance on
the judge’s investigation.

Since the controversy at bar arose, many years have passed during
which Circuit Criminal Courts were abolished, as already stated,1
the petitioner Fiscal’s public service was ended by compulsory retirement, and
the respondent’s stint as Judge, ended by his promotion to a higher court. It is time, too, that this case is ended.

WHEREFORE, the challenged Orders are hereby annulled and
set aside. This resolution is
immediately executory. No costs.

Gancayco, Griño-Aquino, and
Medialdea, JJ., concur.

Cruz, J., see separate concurrence.

^[1]
SEE Sec. 4, Rule 108, Rules of Court of 1940; Peo. v. Solon, 47 Phil.
443, cited in Moran, Comments on the Rules, 1980 ed., Vol. 4, pp.
115-116

^[2]
Promulgated on November 22, 1984

^[3]
The 1988 Amendments were published in the issue of Bulletin Today of
October 29, 1988

1
Sec 2, ART III of the 1987 Constitution, for instance, provides that “The
right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall
be inviolable, and no search warrant or warrant of arrest shall issue except
upon probable cause to be determined personally by the judge after examination
under oath or affirmation of the complainant and the witnesses he may produce,
and particularly describing the place to be searched and the persons or things
to be seized.

2
Or, as expressed in Sec. 1, Rule 112 of the 1985 Rules of Court, as amended in
1988, to determine “whether there is sufficient ground to engender a well
founded belief that a crime cognizable by the Regional Trial Court has been
committed and that the respondent is probably guilty thereof, and should be held
for trial.”

3
Sec. 6 of the same Rule 112 inter alia provides that, “Upon the filing of an
information, the Regional Trial Court may issue a warrant for the arrest of the
accused.”

4
SEE Sec. 6, sub-secs. (a) and (b), and Sec. 9, sub sec (b) of the same Rule
112, supra

5
Circuit Criminal Courts were inter alia automatically abolished on
completion on January 17, 1983 of the reorganization of the judiciary pursuant
to Batas Pambansa Blg. 129

6
Rollo, pp. 23-24

1 Id., pp. 25-26

2 Id., pp. 27-38

3 Id., p. 39

4 Circuit Criminal Courts, as above stated [footnote
1, p. 2] ceased to exist upon completion of the reorganization of the judiciary
on January 17, 1983 pursuant to Sec. 44, B.P. Blg. 129

5 Cited in Salta v. C.A. 143 SCRA 228, supra,
p. 1 hereof

6 Decided in light of Sec. 3. RA 5179 creating the
Circuit Criminal Courts, which made applicable to said courts the provisions
“of all laws and the Rules of Court relative to the judges of the Courts
of First Instance and the trial, disposition and appeal of criminal cases”

7 Sec 4, Rule 110, Rules of 1964, Sec. 5, Rule 110,
1985 Rules on Criminal Procedure

1 Secs. 1-3, Rule 110, Rules of 1964; Secs. 2-4, Rule
110, 1985 Rules on Criminal Procedure

2 Sec 1, Rule 112, Rules of 1964 — or, as stated in
Sec. 1, Rule 112 of the 1985 Rules on Criminal Procedure, supra,”…
whether there is sufficient ground to engender a well founded belief that a
crime cognizable by the Regional Trial Court has been committed and that the
respondent is probably guilty thereof, and should be held for trial”

3 SEE Peo. v. Pineda, 20 SCRA 748 (1967)
holding inter alia (at p. 756) that “The question of instituting a
criminal charge is one addressed to the sound discretion of the investigating
Fiscal. The information he lodges in
court must have to be supported by facts brought about by an inquiry made by
him. It stands to reason then to say
that in a clash of views between the judge who did not investigate and the
fiscal who did, or between the fiscal and the offended party or the defendant,
those of the Fiscal’s should normally prevail. In this regard, he cannot ordinarily be subject to dictation.
**.”

4 SEE Crespo v. Mogul, 151 SCRA 462 (June 30,
1987), cited in Dungog v. C.A., et al., G.R. No. 77850-51, March 25,
1988, and Sta. Rosa Mining Co. v. Asst. Provincial Fiscal, et al., G.R.
No. 153 SCRA 367, Aug. 31, 1987

1 SEE footnote 4, at page 3 hereof, supra