PEOPLE OF THE PHILIPPINES, PLAINTIFF, VS. JOSE TAN, ACCUSED.

Appeal by the prosecution from an order of the Court of First Instance of Ilocos Norte, dismissing this case with costs de oficio.

On January 27,1960, a complaint charging Jose Tan with homicide was
filed with the Justice of the Peace Court of Laoag, Ilocos Norte, and
docketed, therein as Criminal Case No. 3176. After conducting the first
and second stages of the corresponding preliminary investigation, on
August 5, 1960, said court dismissed the complaint and forwarded the
records to the Court of First Instance of Ilocos Norte. Subsequently,
the Provincial Fiscal of Ilocos Norte conducted his own preliminary
investigation, and then filed with the Court of First Instance of
Ilocos Norte on September 16, I960, an information charging Jose Tan
with the same offense, which information was docketed as Criminal Case
No. 3618 of the latter Court. Soon thereafter, or on October 1, 1960,
the defendant moved to dismiss this information, upon the ground that
in view of the dismissal of said complaint by the Justice of the, Peace
Court, the Provincial Fiscal could not, under Republic Act No. 1799,
amending Republic Act No. 732, file a new information with the court of
first instance “without first obtaining an order directing the justice
of the peace to conduct another preliminary investigation.” On November
27, 1960, said court of first instance issued the order appealed from,
dismissing the aforementioned information. A reconsideration of this
order having been denied, the prosecution interposed the present appeal.

The only issue in this appeal is whether the provincial fiscal could
validly file said information, after a preliminary investigation made
by him, in which he found that a probable cause exists against the
accused, considering that the complaint filed with the Justice of the
Peace Court had been dismissed by the same, after conducting the second
stage of the preliminary investigation. The Court of First Instance of
Ilocos Norte resolved the question in the negative, relying upon the
cases of U. S. vs. Marfori: (35 Phil., 666) and People vs.
Magbanua (C.A.-G.R. No. 19544- R, 54 Off. Gaz., 4500). We agree with
the’appellant herein that said Court has erred in reaching its
aforementioned conclusion.

The Marfori case is not in point for no preliminary investigation
was conducted therein by the provincial fiscal. The decision of the
Court of Appeals in the Magbanua case was, also, invoked by the accused
in People vs. Pervez, 110 Phil., 214 (November 29, 1960), which
is identical to the one at bar. Like the lower court in the present
case, the court of first instance granted the motion to dismiss the
information in the Pervez case. Yet this Court reversed the order of
dismissal therein upon the ground that:

“* * *if the charge for a crime cognizable by the
Court of First Instance is filed by a competent party or officer in the
Justice of the Peace Court, and the accused waives preliminary
investigation therein, or the Justice of the Peace, after regular
preliminary investigation, finds that a prima facie case
exists, and consequently, elevated the records to the Court of First
Instance, the Provincial Fiscal is not called upon to conduct another
preliminary investigation, and may forthwith file the information in
the Court of First Instance. Republic Act 732 does not apply in such a
case. But if the Justice of the Peace, after due investigation,
dismissed the charge, then, the case stands as if no charge had, been
made, and the Provincial Fiscal may thereafter conduct his own
investigation of the same charge under the aforementioned Republic Act
1799 (amending R. A. 732), making it in the presence of the accused if
and when the latter so requests.”

Upon the authority of our aforementioned decision in the Pervez
case, which was reiterated in People vs. Reginaldo, m Phil., 963 and
Abubakar vs. Arca, L-14916 (December 29, 1962), the order
appealed from should, therefore, be, as it is hereby set aside, and the
records of the present case remanded to the lower court for further
proceedings, with the costs of this instance against
defendant-appellee, Jose Tan.

It is so ordered.

Bengzon, C. J., Bautista Angelo, Labrador, Reyes, J.B.L., Barrera, Paredes, Dizon, Regala and, Makalintal, JJ., concur.