THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLANT, VS. BENJAMIN NAPAGAO, ET AL., DEFENDANTS AND APPELLEES.

Arsenio Napagao was charged with homicide in a complaint filed with the
Justice of the Peace Court of Oton, Iloilo. As the accused waived his right to
preliminary investigation, the case was forwarded to the Court of First Instance
of Iloilo. Thereupon the provincial fiscal conducted a preliminary
investigation, with the result that an information was filed not only against
Arsenio Napagao but also against Benjamin Napagao and Bernan Napagao. The latter
two filed a motion to quash, alleging that the preliminary investigation
conducted by the provincial fiscal was irregular and violative of Republic Act
No. 732, in that they were not present at said investigation. Over the
opposition filed by the fiscal, the Court of First Instance of Iloilo dismissed
the information as against Benjamin and Bernan Napagao who were ordered
released. The prosecution has appealed.

In case of Lozada vs. Hernandez, et al., (92 Phil., 1051), decided
on April 29, 1953, we already hinted that the provincial fiscal is not required
to give notice of the preliminary investigation so that the accused may be
present thereat, unless the accused has made the proper request. In the portion
pertinent to the issue herein involved, Republic Act No. 732 provides as
follows:

“A provincial fiscal shall have authority to conduct investigation into the
matter of any crime or misdemeanor and have the necessary information or
complaint prepared or made against persons charged with the commission of the
same. If the offense charged falls within the original jurisdiction of the Court
of First Instance, the defendant shall not be entitled as a matter of right to
preliminary investigation in any case where the provincial fiscal himself, after
due investigation of the facts made in the presence of the accused if the
latter so requested, shall have presented an information against him in
proper form and certified under oath by the said provincial fiscal that he
conducted a proper preliminary investigation. To this end, he may, with due
notice to the accused, summon reputed witnesses and require them to appear
before him and testify and be cross-examined under oath by the accused upon the
latter’s request. The attendance or evidence of absent or recalcitrant witnesses
who may be summoned or whose testimony may be required by the provincial fiscal
under the authority herein conferred shall be enforced by proper process upon
application to be made by the provincial fiscal to any Judge of First Instance
of the Judicial District. But no witness summoned to testify under this section
shall be compelled to give testimony to incriminate himself.”

It is quite obvious from the foregoing provision that the legal duty of the
provincial fiscal to notify the accused of the preliminary investigation, arises
only after the latter expressly requests that said investigation be made in his
presence. Counsel for defendants-appellees, in contending otherwise, stresses
the fact that the above quoted provision recites that “to this end, he may, with
due notice to the accused, summon reputed witnesses and require them to appear
before him and testify and be cross-examined under oath by the accused upon the
latter’s request,” and “that the attendance or evidence of absence or
recalcitrant witnesses who may be summoned or whose testimony may be required by
the provincial fiscal * * * shall be enforced by the proper process upon
application to be made by the provincial fiscal to any Judge of the First
Instance of the Judicial District.” Insamuch, however, as the sentences referred
to by counsel for defendants-appellees, are introduced by the phrase “to this
end”, they are to be construed in relation to the preceding provision, namely,
that the accused should make the corresponding request if he desires to be
present at the investigation. The clause “if the latter so requested,” appearing
in the second sentence of the above quoted provision of Republic Act No. 732
would be meaningless, if in all cases the fiscal is bound4 to notify and require
the presence of the accused.

Wherefore, the appealed order is reversed and the case remanded to the Court
of First Instance of Iloilo for further proceedings. So ordered, without
costs.

Bengzon, Padilla, Montemayor, Reyes, A., Jugo, Bautista Angelo, Labrador,
Concepcion, and Reyes, J.B.L., JJ., concur.