THE PEOPLE OF THE PHILIPPINES, PLAINTIFF?APPELLANT, VS. JULIAN MONTON, ENRIQUE MONSALE, SALVADOR MONSALE, SA­TURNINO MONSALE, JUAN LINO-ON, ALBANO PATAGNI, PABLO NABONG AND ALFO…

On May 15, 1957, a criminal complaint for libel was filed with
the Justice of the Peace Court (now municipal court) of Miagao,
Iloilo, against the above-named defendants-appellees,
for having prepared, signed, and sent a communication to the then President of the Philippines, denouncing certain
illegal and oppressive acts allegedly committed by Jose J. Monte­claro
as City Fiscal of Iloilo, thereby placing him to public hatred, contempt,
dishonor, discredit and ridi­cule,

The complaint was dismissed by the Justice of the Peace Court on
the ground that there was no probable cause to believe that the crime of
libel charged therein has been committed.

Subsequently, or on May
8, 1968, the provincial fiscal of Iloilo
filed a new information before the Court of First
Instance of Iloilo, charging the same accused with the same crime.  A motion to quash was filed by counsel for
the accused on two grounds:  (a) that the
information contained averments which, if true, would constitute a legal excuse
or justification; and (b) that it was filed without due process of law for want
of pre­liminary investigation.  The
motion was granted for the reason that “the said letter cannot be
considered libelous because it is a private communication made by the
defendants to the highest magistrate of the land in the performance of their
legal, moral or social duties.”

Failing to obtain a reconsideration of the said order of
dismissal, the prosecution appealed to this Court (G.R. No. L-16772) presenting
as issue the ques­tion of whether or not the privileged character of the
alleged libelous communication constituted a legal basis for the dismissal of
the information based thereon.  Dis­posing
of that first appeal, this Court set aside the dismissal order with the holding
that “the prosecution is entitled to go to trial and present the necessary
evidence to prove malice and the denial to it of the opportunity to do so, upon
defendant’s motion to quash, constitutes reversible
error.” With respect to the second ground of the motion to quash, that the
informa­tion was filed by the Provincial Fiscal without preli­minary
investigation, in remanding the case to the court below for further
proceedings, this Court said that it was “without prejudice to such action
as the lower court may take, after appropriate findings, on the additional
ground relied upon by appellees on their motion to
quash.”

Accordingly, the trial court conducted a hearing on the subject
of whether or not a preliminary investi­gation had been held, receiving
evidence from both parties.  The
prosecution offered in evidence, the affida­vit of the offended party which, as
admitted, was made the basis for the filing of the information, and a cer­tificate
of Asst.  Provincial Fiscal, Eugenio M. Gison, to the effect
that he had conducted the preliminary in­vestigation in the case.  The accused, on the other hand, presented
evidence to show fact of dismissal of the
original complaint by the Justice of the Peace Court, after preliminary investigation, and that none of the accused had
been summoned or notified by the office of the provincial fiscal to appear for
preliminary investigation.

The trial court ruled, after consideration of such evidence, that
there was no preliminary investi­gation held in the case because the affidavit
of the offended party does not show that the latter was examined personally and
asked “searching questions” by Fiscal Gison;
and that the certificate of Asst. Fiscal Gison does
not state that “a preliminary investigation has been conducted in this
case under my direction hav­ing examined the witnesses under oath.”

The State has appealed for a second time, con­tending that a
preliminary investigation has been con­ducted in this case, and that said
preliminary investi­gation, anyway, was unnecessary.

Of the two issues raised in this appeal, We
first shall dwell upon the latter, that is,
whether upon the dismissal of the charge by the Justice of the Peace on
the ground of lack of cause of action, a preliminary investigation is still necessary for the prosecution
of the case by the fiscal under a new information.  Our jurisprudence on this point is settled that –

“When the complaint or informa­tion is dismissed after the
prelimi­nary investigation, and a new infor­mation is
filed, the accused cannot be brought to trial unless another preliminary
investigation is made of the crime charge in the new informa­tion.  The right of the accused not to be brought to
trial except when remanded therefor as a result of a
preliminary examination before a com­mitting magistrate, it has been held, is a substantial
one.  Its denial over the objections of
the accused is prejudicial error in that it sub­jects the accused to the loss
of life, liberty or property without due process of law.” (Conde vs. Judge of Court of First Instance of Taya­bas, 45 Phil. 173, 176.)

To
this effect is the ruling laid down in the latter case of People vs. Perves, 110 Phil. 214, 1960, where it was further
explained:

“x x x that if
the charge for the 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 aforesaid
Republic Act 1799 (amending Republic Act 732) taking it in the presence of the
accused if and when the lat­ter so request.”

We cannot yield to
prosecution’s suggestion to dispense with preliminary investigation in this
case for the mere reason that unlike in other offenses, in libel, the
declaration of witnesses need not be taken, for the document itself, if found
defamatory, and the authors definitely identified, is sufficient for fil­ing
the information.  There is nothing in the law that pronounces an
exception to the requirement which is substantial insofar as the rights of the
accused are concerned.  It is a basic
rule that when the law does not distinguish neither
should the court distinguish.

Of course, there is no
dispute as to the lati­tude of discretion that the fiscal may exercise in the determination
of what constitutes sufficient evidence as will establish “probable
cause” for filing information against a supposed offender.  But the same is by no means absolute and does
not in any manner grant the said investigating officer the license to dispense
with pre­liminary investigation altogether. 
The record of preli­minary investigation is significant in cases where
it would serve as a basis for
the judge to later on exer­cise his own discretion on whether or not to dismiss the case.

“Whether a criminal action should be instituted is a matter
addressed to the sound discretion of the fiscal who must determine whether or
not to file a complaint (or follow that pre­sented by the offended party)
accord­ing to whether the evidence is in his opinion sufficient to establish
the guilt of the accused beyond a reason­able doubt.  (Gonzales vs. Court of First Instance of Bulacan, 63 Phil. 846) Of course, the disposition of a
motion by a provincial fiscal address­ed to a Court of First Instance seek­ing
permission to dismiss criminal proceedings rests in the court‘s dis­cretion.  The judge may properly deny the motion where,
judging from the record of the preliminary investiga­tion there appears to be
sufficient evidence to sustain prosecution (Asst. Prov.
Fiscal of Bataan vs. Dollete, 103 Phil., 914; 56 Off. Gaz. [11] 2371, cited in Jacinto,
Revised Rules of Court, 1965 ed. p. 126).

Emphatically the right to the oft-repeated preli­minary
investigation has been intended to protect the accused from hasty, malicious
and oppressive prosecution (U. S.
vs. Grant, 18 Phil. 122).  This, of
course, with­out any express provision of the law, cannot be denied, and the
omission thereof is a grave irregularity which nullify
the proceedings because it violates the right to due process guaranteed by
section 1, Article III of our Constitution.

Coming now to the question as to the fact of hold­ing a
preliminary investigation, the prosecution would want the court to rely on the
mere certification under oath in the information that a preliminary
investigation had actually been conducted.

The manner of conducting
preliminary investiga­tion is defined or described in section 6, Rule 108 of
the old Rules of Court, applicable to this case, which reads –

“The justice of the peace or the officer who is to
conduct the preliminary investigation must take under oath either in the
presence or absence of the defendant the testimony of the complainant and the
witnesses to be presented by him or by the fiscal, but only the testimony
of the complainant shall be reduced to writing.  He shall, however, make an abstract or brief
statement of the substance of the testimony of the complainant and the
witnesses to be presented by him or by the fiscal, but only the testimony of
the complainant shall be reduced to writing. 
He shall, however, make an abstract or brief statement of the substance
of the testimony of the other witnesses.”

There is nothing in the
evidence for the prosecu­tion that can reasonably support its claim that Asst.
Pro­vincial Fiscal Gison had conducted the requisite
prelimi­nary investigation.  Exhibit
“1” is the affidavit of the complainant, dated May 7,
1958, subscribed and
sworn to before the Clerk of Court which was the basis for the filing of the
information against the accused.  This
piece of evidence does not show on its face that the of­fended party was
personally investigated by the said Fiscal as the Rules require.  As a matter of fact, it was not before him
that the statement was subscribed and sworn to.

Exhibit 2-A, the certification to the effect that Asst. Fiscal Gison had conducted a preliminary investi­gation in
accordance with Republic Act 1799, is not supported by any other evidence.  The court’s order deny­ing reconsideration of
the quashal of the information states that during the
hearing of the incident, the court required the provincial fiscal to produce
the records of preliminary investigation, but the fiscal could not pro­duce the
same alleging that the records were lost in his office.

We believe that section 1687 of the Revised Admi­nistrative Code,
as amended, giving the provincial fis­cal authority to file an information on
the basis of a certification made by him
to the effect that he had con­ducted a proper preliminary investigation
presupposes the existence of good faith – that no such certification would be
made without actual conduct of the same – so that where evidence adduced do not
support such a claim, then, such a certification would not suffice to dispense
with the preliminary investigation to which the defendant is entitled.

Whereas in this instance, the two stages of a preliminary
investigation become indefinable and merged as is the effect of a preliminary
investigation conduct­ed by a provincial
fiscal, where the Court of First In­stance may, upon filing of the
information, issue the warrant of arrest and set the case for trial on the
merits, without necessity of conducting the preliminary investigation proper,
the need for vigilance in the pro­tection of the rights of the accused becomes
more pro­nounced.  Considering the
Official position of complain­ant, who himself is a government prosecutor, it
would seem doubly imperative that the provincial fiscal hand­ling the case
prove good faith by presenting to the court the record required to be
submitted.  In failing to so present such
an important record, or more convin­cing evidence that the provincial fiscal or
his assist­ant had personally conducted an investigation, the prosecution has
utterly failed to show its impartiality and objectiveness so essential to the
dispensation of justice.

As there has been in this case no renunciation or waiver of the
right to preliminary investigation, and as, on the contrary, the whole
proceeding has been punctuated with the sustained clamor for the right so withheld, the court a quo
committed no mistake in granting the accused’s motion
to quash.

WHEREFORE, the questioned order of dismissal is hereby
affirmed.  No costs at this instance.

Concepcion, C.J., Dizon,
Makalintal, Zaldivar,
Sanchez and Castro, JJ.,
concur.

Reyes, J., in the result.

Fernando, J., did not take
part.