JAIME BANDIALA AND GABRIEL ANDAYA, PETITIONERS, VS. THE COURT OF FIRST INSTANCE OF MISAMIS OCCIDENTAL, PRE­SIDED BY THE HON. MARIANO A. ZOSA AND HON. DIOSDADO BACOLOD, PROVINCIA…

Original action for certiorari and prohibition with preli­minary
injunction.

On April 10, 1962
an amended complaint for robbery in band was filed by the Philippine
Constabulary authorities against the petitioners Jaime Bandiala
and Gabriel Andaya (and two other persons) with the
justice of the peace (now municipal) court of Sapangdalaga
in the province of Misamis Occidental.  The complaint reads as follows:

“That on or about the 23rd day of February 1962, more or less
4:20 o’clock in the afternoon, at Barrio Bitibot,
Municipality of Sapangdalaga, province of Misamis Occidental, Philippines and within the preliminary
jurisdiction of this Honor­able Court, the above-named accused with delibe­rate
intent to gain and with force or intimidation, conspiring and confederating
together, wearing uniform in the guise of PC to afford impunity armed with
assorted firearms, did then and there willfully, unlawfully and feloniously
hold-up Lim Bing San at gunpoint, hogtied him together with one passenger Inocencio Co while riding on a car driven by the other
co-accused Gabriel Andaya, and robbed the said Lim
Bing San of cash paper bills amounting to P60,000.00 … all belonging to Lim
Bing San in the name of Lee Gee & Com­pany, to the damage and prejudice of
the said Lim Bing San of Lee Gee Co. of the aforementioned amount.”

The requisite preliminary investigation, second stage, was
thereafter conducted by the court.  The
petitioners, assisted by counsel, asked for and were given copies of the
affidavits submit­ted to support the complaint. 
One of these affidavits was that of Lim Bing San, one of the alleged
offended parties, which contains a recital that he was carried, with his hands
tied, from Sapang­dalaga to Ozamis City
(a distance of about 90 kilometers) at which latter place he was released.  (Other documentary proof adduced shows that
only two of the alleged offenders were armed).

Only Bandiala went through the second
stage of preliminary investigation, as Andaya waived
the same, and the two other ac­cused were then still at large.

During the investigation, Bandiala
presented one witness, a PC sergeant, who testified on the circumstances
leading to his arrest, and on his alleged confession of criminal
participation.  This supposed confession,
which appears to have been subscribed and sworn to before Judge Joaquin T. Maabong of Cebu
City, re­cites explicitly that one
of the victims was hogtied and carried in­side his car from Sapangdalaga
to Ozamis City.  Bandiala’s re­quest
for a copy of this written confession, made during the inves­tigation, was
refused by the respondent fiscal.

On February 28, 1963
the presiding judge of the municipal court, finding a prima facie
case against the petitioners (accused therein), forthwith remanded the case to
the respondent Court of First Instance for trial on the merits.  The dispositive
portion of the court’s decision reads as follows:

“This Court, after a serious study of the records of this
case, and taking further into con­sideration the circumstances attendant during
the preliminary investigation of this case, FINDS that there is a PRIMA-FACIE
case against the accused herein.”

Thereafter, the respondent Fiscal filed with the respondent CFI
an information dated June 11, 1963
charging the petitioners with “Robbery with Kidnapping.” This
information reads as follows:

“The undersigned accuses Gabriel Andaya
and Jaime Bandiala of the crime of Robbery with
Kidnapping, committed as follows:

“That on or about the 23rd day of February 1962, in barrio Bitibot, municipality of Sapang Da­laga, province of Misamis
Occidental, Philippines, and within the jurisdiction of this Honorable Court,
the said accused, conspiring and confederating together in their common intent
of gain with Francis­co Lacaya and John Doe alias
Tony who are still at large, and simulating public authority as Constabulary
soldiers with uniform, patches and guns, did then and there willfully,
unlawfully, feloniously and by means of violence and intimidation of persons,
stop the automobile of the complainant at the uninhabited section of the
national highway at said barrio, and then hogtied the passengers at gun-point,
after which, the said accused ransacked the car and took posses­sion of the
money therein amounting to Sixty Thou­sand Pesos (P60,000.00) which they
carried away in escaping to Ozamis City in the same
car, to the damage and prejudice of Lee Gee & Co., the owner, in the said
sum of P60,000.00; and then, while thus running away with the rich booty, the
said accused likewise willfully, unlawfully and feloniously took along with
them, kidnapped or deprived of his liber­ty, one Lim Bing San whom they
detained inside the car from Bitibot, Sapang Dalaga to Ozamis City whereat he was released.

“Contrary to par. 4, Art. 294 in connection with Art. 295 and
par. 2, Art. 267 of the Revised Penal Code, with the aggravating circumstances
of (1) disguise and (2) use of motor vehicle; and abuse of confidence as
against Gabriel Andaya only.”

On March 10, 1965,
upon arraignment, the petitioners dis­covered, to borrow their language,
“for the first time and to their great dismay,” that the respondent
Fiscal had filed an information for “Robbery with Kidnapping” instead
of “Robbery in Band.” They therefore moved, in open court, to quash
the said information.  After giving both
parties the opportunity to expound in writing their respective positions, the
respondent CFI issued the order here in dispute, dated March 27, 1965, denying the petitioners’ motion.

Fundamentally, the petitioners’ theory is that the respon­dent
Fiscal altered the substance of the crime of which they were accused before the
municipal court by charging them with the “far more serious and complex
offense of robbery with kidnapping,” without conducting any preliminary
investigation with respect thereto, in violation of section 1687 of the Revised
Administrative Code, as amended by Republic Acts 732 and 1799.^[1]

Upon the other hand, the respondent Fiscal maintains that the
preliminary investigation conducted by the municipal court in­cluded the charge
of kidnapping and that, therefore, no further preliminary investigation on this
point was necessary.  However, the said
respondent Fiscal, while previously vacillating on this aspect of the case, now
admits that “the kidnapping was merely incidental to the principal
criminal purpose which was robbery,” and “is absorbed by the robbery
of which it formed a part.”

We agree with the respondent Fiscal that at the prelimi­nary
investigation by the municipal court the petitioners were adequately informed
that one of the offended parties was hogtied inside his car in Sapangdalaga and thereafter carried to Ozamis City
whereat he was released.  We do not,
however, accord merit to his argument before the lower court that the
transporting of the victim in this case is, by itself, sufficient to establish
the “complex crime of robbery with kidnapping.” Indeed, taking the
recitals of the parties before us as our frame of reference, it would appear
that the alleged temporary detention of the offended Chinese merchant was used
merely as a ploy to give the offenders sufficient time to reach a planned
destination and thereby prevent an early alarm to the police authorities.  The respondent Fiscal himself, who is in a
better position at this stage of the proceed­ings to appreciate the legal
implications of all the evidence avail­able to him, in effect concedes this
point of view.

A preliminary investigation, it must be borne in mind, is a
practical device created by statute and by mandate of our Rules of Court, principally
for the purpose of preventing hasty, mali­cious and ill-advised prosecutions.

The position taken by the Fiscal that because section 13 of Rule
110 of the Rules of Court authorizes him to amend the infor­mation in substance
without leave of court at any time before the defendant pleads, he may
therefore change the nature of the of­fense charged in the amended complaint,
which was the subject of a formal preliminary investigation by the municipal
court, by raising the category of the crime to a higher one, based on the
evidence in his possession, loses sight of the fact that section 13 of Rule 110
was not intended to give a prosecuting official an un­due advantage over the
accused in the sense that he may withhold evidence at the preliminary
investigation conducted by the municipal court only to uncover and reveal it
later for the purpose of raising the category of the offense to be charged by
him in the in­formation.

The Rules of Court on the matter of preliminary investi­gation,
construed in their integrated entirety, direct that, in the circumstances here
obtaining, the Fiscal, if he believes that he should raise the category of the
offense, must conduct a prelimi­nary investigation anew as to the entire
charge.  Fundamental prin­ciples of fair
play dictate this course of action.  The
Fiscal is not allowed by the Rules of Court to wait in ambush; the role of a
Fis­cal is not mainly to prosecute, but essentially to do justice to every man
and to assist the courts in dispensing that justice.

Parenthetically, it will be noted that the information filed by
the respondent Fiscal recites that the malefactors “hogtied the passengers
at gun-point, after which” they committed the robbery, and then fled to Ozamis City,
taking with them the offended party Lim Bing San.  Likewise noteworthy is the fact that while
the in­formation charges that the four accused simulated “public autho­rity
as Constabulary soldiers, with uniform, patches and guns,” from which it
would appear that the crime of robbery was commit­ted by a band, nothing in the
entirety of the evidence adduced at the formal preliminary investigation
conducted by the justice of the peace of Sapangdalaga
supports the inference that all the four accused were armed; upon the contrary,
the said evidence unmis­takably indicates that only two of the four
perpetrators were armed.

On the basis of the foregoing, it is apparent that unless the
respondent Fiscal has new evidence to the contrary, the crime al­legedly
committed is merely that of robbery.

If the respondent Fiscal has new evidence which, added to the
proof which, was already in his hands when the motion to quash was filed with
the respondent court, would justify his charging the petitioners with the crime
of “robbery with kidnapping” (assuming that such complex crime does
exist within the pale of our penal law), he may file what he deems to be the
proper information, al­ways with the injunction that the accused be given ample
opportu­nity at a full-blown preliminary investigation to demonstrate that what
the Fiscal regards as “kidnapping” in the legal sense was merely an
incident of, and is therefore absorbed in, the crime of robbery.

ACCORDINGLY, the disputed order is modified in the sense
that the respondent Fiscal shall grant the petitioners a new preli­minary
investigation; the respondent Court is hereby directed to hold the case below
in abeyance until after the outcome of the said preliminary investigation.  Costs de officio.

Reyes, J.B.L., Acting C.J., Dizon, Makalintal, Zaldivar, Fernando, Barredo, Villamor, and Makasiar, JJ., concur.

Teehankee, J., concurs in a separate opinion.

Concepcion, C.J., on official leave.

^[1]
“SEC. 1687.  Authority of fiscal,
assistant fiscal and special counsel to conduct investigation in criminal
matter.  – A provincial fiscal, an
assistant provincial fiscal and a special counsel appointed under section 1686
of this Code shall have authority to conduct investigation into the matter or
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, or an assistant provincial fiscal, or a
spe­cial counsel, 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 or assistant provincial fiscal or special counsel 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, or
assistant provincial fiscal, or special counsel under the authority herein con­ferred
shall be enforced by proper process upon applica­tion to be made by the
provincial fiscal, or assistant provincial fiscal, or special counsel 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.”

R.A. 5180,
approved on September 8, 1967,
now provides a “uniform system of preliminary investigation” by
provincial and city fiscals and their assistants, and by state attorneys and
their assistants.

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