ANTONIO MARINAS, ANTONIO MONTANO AND GREGORIO RUPISAN, PETITIONERS, VS. HON. ANDRES S. SIOCHI, PRESIDING JUDGE OF THE MUNICIPAL COURT OF PASIG, RIZAL, VICTORIA LASIN VDA. DE ATI…

Before us is a Petition
for Certiorari with Pre­liminary Injunction seeking to annul the
proceedings held in Criminal Cases Nos. 12943 and 12945 for Theft, and Criminal
Case No. 12944 for Grave Coercion, before the Municipal Court of Pasig, Rizal; to annul the
warrants of arrest issued in the said cases; and to declare as unconstitutional
and void Section 5, Rule 112 of the Rules of Court in so far as it denies the
accused the right of notice and opportunity to be heard in the preliminary
examination.

The present controversy
arose out of the issuance by the Municipal Court of Pasig,
Rizal, of a Writ of Execution in Civil Case No. 938
for Ejectment, entitled Jose C. Zulueta vs. Gregorio Atienza.  On December 13, 1965, petitioner Antonio Marinas, Deputy Sheriff
of Rizal, with his co–petitioners Antonio Montano and Gregorio Rupisan,
enforced said Writ of Execution by levying upon the personal properties and
chattels of private respondents Victoria Lasin
Vda. de Atienza
and Rosario L. Atienza, and taking out said properties from their (respondents’) rented house at #23
General Malvar St., Antonio
Village, Pasig, Rizal.  Respondents were also ejected from said
house.  On the same
date, respond­ent Victoria Lasin Vda.
de Atienza reported to the
police authorities of Pasig
that her jewelry worth P590.00 had been taken by petitioners without issuing
any receipt therefor,^[1]
and in connection therewith, she executed a written Statement which was sworn to before Special Counsel Lucila P. Alcoba.^[2]

On January
28, 1966,
respondents re-entered the house they had been ejected from after securing a Court Order for that purpose. 
Respondent Rosario L. Atienza then discovered
that several pieces of her jewelry and other personal items, with a total value
of P1,018.00, were missing.  She reported the loss to the authorities on February 2, 1966, and her Statement was taken.  She subscribed and swore to the same before respondent Municipal Judge
Andres S. Siochi.^[3]

On February
3, 1966,
respondents, armed with a Court Order authorizing them to enter the premises
of the said house, did so again to get their remaining un­levied
properties.  They claimed, however, that
on the said date petitioners and their companions forcibly compelled them to deliver the unlevied
personal pro­perties found therein, hauled said articles into a truck and
left.  Private respondents reported the
incident to the police authorities at Pasig.^[4] Victoria Lasin
executed a Statement^[5] alleging that the personal properties
forcibly taken from them by petitioners, amounting to P2,645.00,
were not included in the levy.  Her son, Tranquilino Atienza, also
executed an Affidavit corroborating her declaration.^[6] Both Statements were subscribed and sworn to
before respondent Judge.

On February 7, 1966,
two separate charges for Theft, docketed as Criminal Cases Nos. 12943 and
12945, were filed against petitioners and Carlos Quintana before the Municipal Court of Pasig,
Rizal, respondent Judge, pre­siding.^[7] A Complaint for Grave Coercion (Crim. Case No. 12944) was also lodged against petitioners
and three Does on the same date.^[8] The three Complaints were filed by Lt. Jose
S. Lontoc, Chief of the Criminal Investigation
Section of the Police Department of Pasig, Rizal, for and on behalf of the Chief of Police.  These Complaints con­tained an annotation on
the lower left hand corner read­ing: 
“APPROVED AFTER PRELIMINARY EXAMINATION:  (SGD) Lucila P. Alcoba, Special
Counsel.” The Complaints in Criminal Cases Nos. 12943 and 12944 for Theft
and Grave Coercion, respectively, were subscribed and sworn to by Lt. Jose S. Lontoc before respondent Judge.  The Complaint in Criminal Case No. 12945 for
Theft does not show the jurat on its face, but respondents state that it was also attested to by Lt. Lontoc before re­spondent Judge and that this appears on
the dorsal side of the Complaint.  On February
8, 1966, warrants
for the arrest of petitioners were issued by respondent Judge in all three
cases^[9] after preliminary examination conducted by
him in Criminal Cases Nos. 12943 and 12944, and by Special Counsel Lucila P. Alcoba in Criminal Case
No. 12945.

Petitioners took
exception to the issuance of the warrants of arrest against them and instituted
the present Petition raising the following issues:

1.    When Section 87, Republic Act No. 296, as amended by Republic Act No. 3828, provides that when the penalty provided by law does not
exceed prision correccional,
then the Municipal Judge in the capitals of the provinces shall have “like
jurisdiction as the Court of First Instance” to try the offense, does the
Municipal Court in such cases follow the procedure for Municipal Courts or that
for Courts of First Instance?

2.    Is preliminary
investigation a part of due process?

3.    Can there be due process without the
presence of the accused during the preliminary
investigation?^[10]

On February 23, 1966,
we required respondents to file an Answer, and ordered the issuance of a Writ
of Preliminary Injunction restraining
respondent Judge from enforcing the warrants of arrest issued in Criminal Cases
Nos. 12943, 12944 and 12945.

Section 87, paragraph 4
of the Judiciary Act of 1948 (R.A. 296),
as amended by Republic Acts Nos. 2613 and 3828, provides:

“Municipal judges in the capitals of provinces and judges of
city courts shall have like jurisdiction as the Court of First Instance to try
parties charged with an offense committed within their respective jurisdiction,
in which the pe­nalty provided by law does not exceed prision
correccional or imprisonment for not more than six
years or fine not exceeding six thousand pesos or both, and in the absence of
the district judge, shall have like jurisdiction within the province as the
Court of First Instance to hear appli­cation for bail.”

Pursuant
to the foregoing provision, both Criminal Cases Nos. 12943 and 12945, for Theft of P590.00 and P1,018.00, respectively, fall under the
concurrent jurisdiction of the Municipal Court of Pasig
and the Court of First Instance of Rizal, as the
penalty provided for said crimes, pursuant to Article 309 (3) of the Revised
Penal Code, is prision correccional in its minimum and
medium periods.

Criminal Case No. 12944
for Grave Coercion, with a penalty, under Article 286 of the Revised Penal
Code, of arresto mayor and a fine not
exceeding P500.00, also falls under the concurrent jurisdiction of the
Municipal Court of Pasig and the Court of First
Instance of Rizal.^[11]

It is petitioners’ submission that because of this concurrent
jurisdiction, a Municipal Court acts in reality as a Court of First Instance
and, consequently, it cannot issue warrants of arrest without first giving the
accused a chance to be heard; and that the Information filed should carry a
certification under oath that defendant was given a chance to appear in person
at said examination and
investigation.  Continuing, petitioners
argue that since Special Counsel Lucila P. Alcoba of the Office of the Provincial Fiscal of Rizal, in Criminal Cases Nos. 12943 and 12945, merely
signed the Complaints for these two cases below the notation, “Approved
after preliminary examination”, her failure to make the certification
under oath to the effect that the accused were given a chance to appear in
person or by counsel at said examination and investigation, was violative of the due process clause, and, therefore, the
warrants of arrest issued thereafter should be quashed.

Section 14, Rule 112 of
the Rules of Court, relied upon by petitioners, provides:

“Section 14.  Preliminary examination
and investigation by provincial or city fiscal or by state attorney in cases
cognizable by the Court of First Instance.  – Except when an investigation has been
conducted by a judge of first instance, justice of the peace or other officer
in accordance with the provisions of the preceding sections, no inform­ation
for an offense cognizable by the Court of First Instance shall be filed by the
provincial or city fiscal, or state attor­ney, without first giving the accused
a chance to be heard in a preliminary investigation conducted by him or by his assistant by issuing a corres­ponding
subpoena.  If the accused appears, the
investigation shall be conducted in his presence and he shall have the right to
be heard, and to cross-examine the complainant and his witnesses, and to adduce
evidence in his favor.  If he cannot be
subpoenaed, or if subpoenaed he does not appear before the fiscal, the
investigation shall proceed without him.

The fiscal or state
attorney shall certify under oath in the information to be filed by him that
the defendant was given a chance to appear in person or by counsel at said
investigation and examination.”

On the other hand,
respondents contend that the governing proviso is the second paragraph of
Section 10, Rule 112, referring to the right of an
accused to pre­liminary investigation after arrest, reading:  “in cases triable
in the municipal or city courts, the accused shall not be entitled as a matter
of right to a preliminary investigation in accordance with this section”
and that this rule applies whether the case is within the exclusive original
jurisdiction of the Municipal Court or within its concurrent jurisdiction with
the Court of First Instance.

The issue of whether or
not an accused is entitled to appear and present evidence in a preliminary
investi­gation in cases falling within the concurrent juris­diction of the
Municipal Court and the Court of First Instance has been squarely resolved in
the negative by this Court, speaking through Mr. Justice Claudio Teehankee, in the cases of People vs. Abejuela
and People vs. Endan,^[12] reiterated in the case of Banzon vs. Cabato, 64 SCRA 419 (1975), which decisively held, that even though
the offense be one falling within the concurrent jurisdiction of the City
Courts and Courts of First Instance, the accused is not entitled as a matter of
right to be heard in a preliminary investigation under section 10, Rule
112.  The reason is because the case goes to trial already after the
arrest of the accused and his delivery to the Court.^[13] “The ensuing trial on the merits takes
the place of preliminary in­vestigation, without needless waste or duplication
of time and effort, and a final verdict on the innocence (or guilt) of the
accused is thereupon rendered, rather than an inconclusive dismissal of the
charge by the fiscal in a preliminary investigation which would not constitute
jeopardy.”^[14] To reiterate and to re-state the rule,
therefore, there is no right of preliminary investigation in cases triable by
inferior Courts, with­out distinction as to whether such case be of their exclusive or concurrent jurisdiction.^[15]

What was conducted by the respondent Judge in these cases is the
preliminary examination before the issuance of a warrant of arrest pursuant to section 1, Rule
112.  The 1935 Constitution, in section 1
(3), Article III, provides that no warrant shall issue but upon probable cause
to be determined by the Judge after examination of witnesses under oath or
affirmation of the complainant and the witnesses he may produce.  Conformably there­to, Section 87, paragraph
3, of the Judiciary Act, as amended by Republic Act No. 3828, provides
that:  before a Municipal Judge may issue
a warrant of arrest, the following conditions must first be fulfilled:  (1) he
must examine the witness or witnesses personally; (2) the examination must be under oath; and (3) the
examination must be reduced to writing in the form of searching questions and
answers.

These requirements have
been met in the three criminal cases involved herein.  As explained by re­spondent Judge in his
Answer:

“Before the warrants of arrest were issued by the respondent
Judge in Criminal Cases Nos. 12944 and 12945 (actually 12943 and 12944), he
first conducted, on February 8, 1966, the necessary preliminary examination
required by Section 1 of Rule 112 by adopting, as his own questions, and by
asking the complainants and their witnesses, the same or identical questions
asked of them by the Investigating Police officer in their written state­ments
before the said Police Investi­gator, Annexes ‘4’, ‘5’, and ‘7’ hereof, and
thereafter the respondent Judge required them (the complainants and their
witnesses) to subscribe before and make oath to him as to the truth of the
answers given by them to the Police Investigator as shown by the fact that in
said Annexes ‘4’, ‘5’, and ‘7’, the deponents signed their respec­tive names
twice, once before the Investigating Police Officer and the second time before
the respondent Judge who also
required them to take the jurat to the oath, thereby
complying to the requirements of Section 87 of the Judiciary Act of 1948, as
amended, providing therein that ‘no warrant of arrest shall be issued by any
justice of the peace in any criminal case filed with him unless he first
examines the witness or witnesses personally, and the examination shall be
under oath and reduced to writing in the form of searching questions and
answers.”^[16]

By “searching
questions and answers” is
meant:

“the term ‘searching questions and
answers’ means only, taking into consideration the purpose of the preliminary
examination which is to determine ‘whether there is a reasonable ground to
believe that an offense has been
committed and the accused is
probably guilty thereof so that a warrant of arrest may be issued and the accused held for trial’,
such questions as have tendency to show the commission of a crime and
the perpetrator thereof.  What would be
searching questions would depend on
what is sought to be in­quired into, such as: 
the nature of the
offense, the date, time, and place of its commission, the possible motives for
its commission; the sub­ject, his age, education, status, financial and social circumstances, his attitude toward the investigation,
social attitudes, opportunities to commit the offense; the victim, his age,
status, family responsibilities, financial and social circumstances,
characteristics, etc.  The points that
are the subject of inquiry may dif­fer from case to case.  The questions, therefore, must to a great
degree depend upon the Judge making the investigation.  At any rate, the court a quo found that respondent Judge was ‘satisfied that the questions
and answers contained in the sworn statements taken by T-Sgt. Patosa partake of the nature of his searching questions and
answers as required by law,’ so the respondent Judge adopted them.”^[17]

In the language of this
Court in De Mulata vs. Irizari, 61 SCRA 210, 213 (1974):

“The requirement that the investigating judge must examine the
witnesses personally, which examination shall be under oath and reduced to
writing in the form of searching questions and answers, is fulfilled where the
municipal judge examined under oath the witnesses by asking questions that were
adopted from a previous investigation and considered by him as sufficient­ly
searching and, which questions and the answers thereto, were in writing and
sworn to before him prior to his issuance of the order of arrest.”

In regards Criminal Case
No. 12945 for Theft, respondent Judge had this to say:

“As regards Criminal Case No. 12943 (actually 12945), although
the respondent Judge did not take the oath of the complainant and her witness
on the statement given by them to the Police Investigator, Annexes ‘1’ and ‘2’
hereof, Special Counsel Lucila P. Alcoba
of the Office of the Provincial Fiscal of Rizal
conducted the necessary prelimi­nary examination required by Section 1 of Rule
112 in that, as can be seen from said
Annexes ‘1’ and ‘2’, she asked the same or identical questions appearing in
said annexes to the deponents and adopted the questioning of the Police Investigator
as her own interrogations of the com­plainant and her witness, and thereafter
she required them to subscribe their respective names and to swear before her
as to the truth of the answers given by them to each and every question appear­ing
in said Annexes ‘1’ and ‘2’ and, although there was no certi­fication, in the
exact form required by law, by Special Counsel Lucila
P. Alcoba that she conducted the required preliminary
examination of the complainant and her witness, it is admitted that her certi­fication
in the body of the complaint stating ‘Approved after preliminary examination’,
accompanied by the oath taken by her before the respondent Judge after making
such certi­fication, is a substantial compliance to the requirements of the law
although it can be said that the same is somewhat defective in form”.  (pp. 46-47, Rollo)

x          x          x          x

From the foregoing
explanation, it may be deduced that respondent Judge was satisfied that the
questions and answers in a previous investi­gation by Special Counsel Alcoba partook of the nature of his searching questions and
answers and made them his own.  As held
in Luna vs. Plaza, supra, the
Judiciary Act as amended by Republic Act No. 3828, does not prohibit the
Municipal Judge from adopting the questions asked by a previous investi­gator.  For, in the final analysis, whether or not
probable cause exists or not depends upon the judg­ment and discretion of the
Judge issuing the warrant of arrest (De Mulata vs. Irizari, supra).  In
Crim­inal Case No. 12945 below, respondent Judge had con­vinced himself that
probable cause existed before he issued the warrant of arrest.  Under the attendant circumstances, respondent
Judge may not be said to have acted arbitrarily.

We reiterate, however,
the reminder in the Luna case (supra), reading:

“We wish to stress, however, that what has been stated in this
opinion is certainly not intended to sanction the return to the former practice
of municipal judges of simply relying upon affidavits or sworn statements that
are made to accompany the complaints that are
filed before them, in determining whether there is a probable cause for the
issuance of a warrant of arrest. 
That practice is precisely what is sought to be voided by the amendment
of Section 87(c) of Republic Act 296 (Judiciary Act of 1948) which requires
that before a municipal judge issues a warrant of arrest he should first
satisfy himself that there is a probable cause by examining the witnesses
personally, and that the examination
must be under oath and reduced to writing in the form of searching
questions and answers.  It is obvious
that the purpose of this amendment is to
prevent the issuance of a warrant of arrest against a person based simply upon
affidavits of witnesses who made, and swore to, their statements before a person
or persons other than the judge before whom the criminal complaint is
filed.  We wish to emphasize strict
compliance by municipal or city judges of the provision of Section 87(c) of the
Judiciary Act of 1948, as amended by Republic Act 3828, in order to avoid
malicious and/or unfounded criminal prosecution of persons (Luna vs. Plaza, supra
p. 323).

Petitioners further
maintain that Section 5 of Rule 112 of the Rules of Court, in so far as
it authorizes the Municipal Court to conduct a preliminary examination before
the issuance of a Warrant of Arrest without pre­vious notice to the accused, is unconstitutional as it violates the
guarantee of equal protection of the laws, and Section 1 (15), Art. III of the 1935 Constitution which states,
“No person shall be held to answer for a criminal offense without due process of law.”
Section 5, Rule 112 provides:

“The municipal, the city judge, the fiscal or the municipal
mayor who conducts the preliminary
examination as provided in these rules must take under oath, either in the presence or in the ab­sence of the
accused, the testimony of the complainant and his witnesses.  The testimony of the complain­ant and his
witnesses shall be reduced to writing and signed by them.”

 The preliminary examination referred to is defined,
under Section 1 of Rule 112, as
a previous inquiry or examination made before the arrest of the
accused by a Judge or officer authorized to conduct the
same, with whom a Complaint or Information has
been filed imputing the commission of an offense cognizable by the Court of First Instance, for the purpose of determining whether there is a reasonable ground to believe that an offense has been
committed and the accused is probably guilty thereof, so that a warrant of
arrest may be issued and the accused held for trial.  This section does not refer to the
preliminary investigation proper provided for under Section 10, Rule 112, in
which the accused is given access to the testimony and evidence presented
against him at the preliminary examination, and to present evidence
if he so desires.

From Section 5 of Rule 112, supra, it is clear that,
unlike in the preliminary investigation proper, an accused is not
entitled as a matter of right to be present,
during the preliminary examination nor to cross-examine the witnesses
presented against him before his arrest, the purpose of said examination being
merely to determine whether or
not there is sufficient reason to issue
a warrant of arrest.^[18]
Section 1 (3), Article III of the 1935 Constitution commanding the determination
of probable cause prior to issuance of a warrant arrest, requires no notice to
an accused.  A preliminary exami­nation
is generally a proceeding ex-parte in which
the person charged has no right to participate or be present.  The right to confrontation of witnesses
neither applies to a preliminary hearing. 
The reason therefor has been explained thus:

“x x x It
can not be serious­ly contended that an accused person has a right to be
present during this stage of the proceedings. 
To hold that he had such a right and to re­verse a judgment of
conviction on this ground would have the effect of destroying the very purpose
of that part of the criminal law.  It
would be against public policy.  It is
fre­quently essential that such investi­gations be kept secret and that the
accused should have no suspicion of any complaint against him, otherwise he
might avoid punishment for his crime by escaping before arrest.” (U.S.
vs. Grant, et al., 18 Phil. 122, 147)

“x x x it
is often the only means of discovering the persons who may reasonably be
charged with the crime so as to enable the fiscal to prepare his complaint or
information, x x x.”
(People vs. Badilla,
48 Phil., 719, 731)

While
section 1(3) Art. III of the 1935 Constitution does require, before the issuance of a
warrant of arrest, the determination of probable cause by the Judge after examination of witnesses under oath or affirmation of the complainant and the witnesses he may produce, the
curtailment of the presence of an accused during that preliminary examination
entails no infringement of the constitutional right to due process of law nor
to equal protection of the laws.  Thus, in Manzano
vs. Villa,^[19] this
Court categorically held:

“The preliminary examination conducted by the municipal judge
was essentially a procedural matter and no substantial rights of the accused
were violated just because he had not been given an opportunity to examine the
witnesses against him.  The first stage of the pre­liminary
investigation is ‘not the occasion for full and exhaustive presentation of
parties’ evidence but only such as may engender well-grounded belief
that an offense has been committed and that the accused is probably guilty
thereof.’ The proceed­ing is usually held ex-parte,
for under section 5 of Rule 112 all that is required is for the judge
conducting such examination to ‘take under oath, either in the presence or
absence of the accused, the testimony of the complainant and his witnesses,’
said testi­mony to be reduced to writing and signed by them.  Hence, the absence of the accused during the
preliminary examination was not a denial of due process of law.”

Neither can the
withholding of the right of preliminary investigation from the accused in cases
triable by inferior Courts be termed an unjust or
unfair dis­tinction, as explained in People vs. Abejuela,
supra:

“x x x The
loss of time entailed in the conduct of preliminary investigations, with the
consequent extension of deprivation of the accused’s
liberty, in case he fails to post bail, which at times outlasts the period of
the penalty provided by law for the offense, besides the mental anguish
suffered in protracted litigations, are eliminated with the assurance of a
speedy and expeditious trial for the accused, upon his arraign­ment (without
having to undergo the second stage of the preliminary investigation), and of a
prompt verdict on his guilt or innocence. 
On the other hand, the so-called first stage of preliminary investigation or the preliminary examination,
conducted by the duly authorized officer, as borne out by the examination and
sworn written statements of the complainants and their wit­nesses, generally
suffices to establish the existence of reasonable ground to charge the accused
with having committed the offense complained of.”

Attention
should also be called to the fact that neither the 1935 nor the 1973
Constitution requires the holding of a preliminary investigation.  It is settled doctrine that the right thereto
is of statutory character and may be invoked only when specifically created by
statute.^[20] It is not a fundamental right and may be
waived expressly or by silence.^[21]

In a nutshell, the proceedings in these three crim­inal cases conformed to
law and jurisprudence.  But even conceding that
petitioners were entitled to a
preliminary investigation, the proper forum before which absence thereof should
have been raised and ventilated was in the trial Court, not in an appellate
Court because the absence of preliminary investigation does not go to the
jurisdiction of the Court but merely to the regularity of the proceedings, and
bearing in mind that preliminary investigation can be waived, as in fact, it is
frequently waived.^[22]

WHEREFORE, the Petition is hereby denied and the Writ
of Preliminary Injunction heretofore issued is hereby lifted.

Costs
against petitioners.

SO ORDERED.

Teehankee, Makasiar,
Fernandez, Guerrero, Abad Santos, and De Castro, JJ., concur.

Fernando, C.J., filed a separate opinion of concurrence with a
partial dissent.

Barredo, J., concurs in the above opinion and joins the opinion of Justice Aquino.

Aquino, J., see concurring opinion.

Concepcion, Jr., J., on leave.

^[1]
p. 60, Rollo.

^[2]
pp. 57-58, ibid.

^[3]
pp. 67-69, ibid.

^[4]
pp. 65-66, ibid.

^[5]
pp. 61-63, ibid.

^[6]
p. 64, ibid.

^[7]
pp. 16 & 17, ibid.

^[8]
p. 18, ibid.

^[9]
pp. 19-21, ibid.

^[10]
pp. 2-3,
Petitioners’ Memorandum, pp. 115-116, Rollo.

^[11]
People vs. Fernando, 23 SCRA
867 (1968).

^[12]
38 SCRA 324 (1971).

^[13]
People vs. Abejuela, supra.

^[14]
Banzon vs.
Cabato, supra.

^[15]
People vs. Abejuela, supra.

^[16]
pp. 45-46, Rollo.

^[17]
Luna vs. Plaza, 26 SCRA 313, 320-321 (1968).

^[18]
De Mulata vs. Irizari, 61 SCRA 210 (1974).

^[19]
46 SCRA 711 (1972).

^[20]
People vs. Abejuela, supra.

^[21]
People vs. Mabuyo, 63 SCRA 532
(1975).

^[22]
Medina vs. Orozco, 18 SCRA 1168 (1966).

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