PEOPLE OF THE PHILIPPINES, PETITIONER, VS. THE COURT OF APPEALS, CHIEF INSPECTOR JOSE T. PRING, RESPONDENTS.

On October 23, 1992, herein public respondent Court of Appeals in
CA-G.R. No. 28933, entitled “Chief Inspector Jose T. Pring v. Honorable
Apolinario B. Santos as Judge of RTC of Pasig, Metro Manila, Branch 67 and
People of the Philippines, et al.,” annulled and set aside the Order of
the lower court granting the prosecution’s motion to discharge accused Nonilo
Arile to turn state witness. Subject
decision of October 23, 1992 held that:

“x x x                                                    x
x x                                         x x x

In the case at bar, prior to the discharge of accused Nonilo Arile
on September 8, 1992, there was no hearing by the court on the motion to
discharge. Records of the proceedings
of the trial court on September 4, 1992, as reflected in the order of the same
date, merely show that the motion to discharge was deemed submitted for
resolution, without any hearing thereon. x x x.”

The People of the Philippines, thru the instant petition now
assails the abovestated Decision, claiming that respondent appellate court
committed grave abuse of discretion in annulling and setting aside the
discharge of accused Nonilo Arile from the information in order to allow him to
testify as state witness in the hearing for admission to bail of private
respondent Jose Pring and the trial in Criminal Case No. 94159 before the lower
court.

Criminal Case No. 94159 is entitled “People of the
Philippines v. Nonilo Arile, Jaime Serrano, Edmund Divinagracia, Jose Pring,
Timoteo Zarcal, Reynaldo Fernandez, Danilo Fernandez, Eddie Chang, Jose Sy and
John Does.” In said case, private respondent herein, Jose Pring was among
those charged with violation of Article 267 (Kidnapping for Ransom) of the
Revised Penal Code, in an information filed on August 21, 1992 with the lower
court.

Subsequent to the filing of the information, private respondent
Jose Pring submitted his petition for bail, its hearing scheduled on August 31,
1992 and September 2, 1992 at 2:00 P.M.

On August 28, 1992, the prosecution filed a motion to discharge
accused Nonilo Arile to be a state witness, with notice of hearing on September
4, 1992 at 8:30 A.M.

Another motion for issuance of bail, with notice of hearing on
September 4, 1992 at 8:30 A.M. was filed on August 31, 1992 by private
respondent Jose Pring thru his counsel.

On the scheduled hearing of the petition for bail on August 31,
1992, private respondent Jose Pring failed to appear although his lawyers
did. Upon joint motion by the
prosecution and defense, the arraignment, pre-trial conference and hearing on
the petition for bail were re-set at 2:00 P.M. of September 4, 1992.

On September 1, 1992, the prosecution filed an opposition to the
petition for bail and asked to defer the hearing thereof until the resolution
of the trial court of the motion to discharge accused Nonilo Arile, whose
testimony is allegedly necessary to establish that the evidence of guilt
against private respondent Jose Pring is strong.

On September 4, 1992, counsels of private respondent Jose Pring
filed his opposition to the motion to discharge accused Nonilo Arile. At 2:00 P.M. of the same day, Criminal Case
No. 94159 was called for arraignment, pre-trial and petition for bail, but only
accused Nonilo Arile appeared. Thus,
the trial court issued the following order:

“WHEREFORE, in view of the absence of the other accused, let
the arraignment and pre-trial conference be reset on September 10, 11, 17, 18,
24 and 25, 1992, all at 2:00 o’clock in the afternoon. The motion to discharge accused Nonilo Arile
to be state witness is hereby considered submitted for resolution.

x x x                                                    x
x x                                         x x x.”

Having submitted for resolution the motion to discharge, thru the
Order of September 4, 1992, the trial court on September 8, 1992 issued an
Order granting said motion. In
discharging accused Nonilo Arile to be a state witness, the trial court
ratiocinated:

“Upon a careful examination of the Sworn Statement made by the
accused Nonilo Arile and the other evidence of the prosecution including other
Sworn Statements of Jaime Serrano, accused Edmund Divinagracia, witness Rogelio
A. Morales (driver of the kidnapped victim) Chin Yi Tsou (father of the
victim), this Court is satisfied that the averment of the Government in its
Motion to Discharge Accused Arile are borne out and fully supported by the
facts and relevant evidence.”

The court, thus, found that the conditions for discharge as
required under Sec. 9, Rule 119 of the 1985 Revised Rules on Criminal Procedure
have been satisfied.

Private respondent Jose Pring assailed the Order of discharge,
filing a special civil action for Certiorari and Prohibition with the
Court of Appeals.

In the hearing conducted by the appellate court on September 22,
1992, counsels of private respondent Jose Pring emphatically stressed the trial
court’s failure to comply with the required hearing in support of the discharge
as mandated in Section 9, Rule 119 of the 1985 Rules on Criminal Procedure, as
amended.

On October 23, 1992, the Court of Appeals rendered the questioned
Decision ruling that “before effecting the discharge the court should
require the prosecution to present evidence and the sworn statement of the
proposed witness at a hearing in support of the discharge.” Finding that
the lower court immediately resolved the motion to discharge without a hearing
thereon, the Court of Appeals annulled and set aside the Order of discharge
dated September 8, 1992.

Hence, the filing of the present petition by the
prosecution. Comment by private
respondent Jose Pring was filed on February 1, 1993. Prior to said comment, the lower court issued an Order of January
21, 1993, which among others considered the petition for bail of private
respondent Pring submitted for resolution with or without the opposition filed
by the prosecution. This prompted the
prosecution to file with this Court an Urgent Motion For the Immediate Issuance
of a Temporary Restraining Order and Resolution of the Petition. The prosecution, in praying for the issuance
of a temporary restraining order, sought to enjoin the trial court from hearing
private respondent Jose Pring’s motion for bail, pending resolution before this
Court, of the petition on whether the annulment of the Order of discharge by
the appellate court is proper. The
state, argued the prosecution, shall have no leg to stand on in opposing the release
on bail of private respondent Jose Pring, without the testimony of accused
Arile, that will show the evidence of guilt against private respondent Jose
Pring is strong.

Thus, on March 30, 1993, the temporary restraining order was
issued by this Court En Banc, ordering Judge Apolinario Santos to cease and
desist from resolving or granting the motion for bail of private respondent
Pring in Criminal Case No. 94159 until the present petition is resolved.

The petition raises a single issue: can the trial court without conducting a hearing pursuant to
Section 9, Rule 119 of the 1985 Rules on Criminal Procedure, as amended,
resolve the prosecution’s Motion to Discharge Nonilo Arile where the records
show that the latter’s sworn statement together with the prosecution’s other
evidence were already in the possession of the court and had been challenged by
private respondent in his Opposition to Discharge Nonilo Arile and in his
Petition For Bail?

Favoring an affirmative ruling thereon is the State, represented
by the Solicitor General arguing that evidence of the prosecution consisting of
(a) sworn statement of proposed witness Nonilo Arile; (b) resolution of the
investigating prosecutors; (c) affidavits of Rogelio Morales, driver of the
kidnapped Chinese children; (d) affidavits of accused Jaime Serrano and Edmund
Divinagracia have all been submitted before the trial court to form part of the
records of the case and thus, made available for the scrutiny of private
respondent Jose Pring who controverted in detail the statements of proposed
witness Nonilo Arile, both in his Opposition to the Motion To Discharge and
Petition For Bail. It is the Solicitor
General’s theory that this submission of evidence to prove that the conditions
for discharge as required by law exist, amounts to the presentation thereof in
open court and the opportunity to rebut the same, well afforded to private
respondent Jose Pring assuredly satisfies due process requirement contemplated
by law in mandating a hearing. Under
these circumstances, concludes counsel for the State, at no instance was there
ever a violation of said provision of law; rather, the requirement of holding
an actual hearing in support of the discharge was substantially complied with.

Strongly opposed to such proposition is private respondent Jose
Pring, advocating strict adherence to the letter of the law. In his Comment, he emphatically stressed
that Nonilo Arile’s exclusion from the information is not valid, since it is
based on an Order of Discharge, the issuance of which is fatally flawed for
failure of the trial court to conduct a hearing in support of his discharge.

To further obtain the dismissal of the petition, private
respondent contends that the State’s filing of a petition for certiorari
under Rule 65 is improper, where upon analysis of the single issue raised in
the petition, the only inquiry it presents before this Court is one of
law. Under our laws on procedure,
claims private respondent, a decision of the Court of Appeals involving a pure
question of law may be elevated to the Supreme Court only by a petition for
review on certiorari under Rule 45 and not under Rule 65.

The elevation of this case to the Supreme Court thru a special
civil action for certiorari is deemed legally permissible. Settled is the rule that:

“Certiorari may be availed of where an appeal would be
slow, inadequate, insufficient, and will not promptly relieve a party from the
injurious effects of the judgment complained of, or in order to avoid further
litigation.”^[1]

In Jaca v. Davao Lumber Company^[2]
cited in Lansang, Jr. v. Court of Appeals,^[3]
it was held that:

“The availability of the ordinary course of appeal does not
constitute sufficient ground to prevent a party from making use of the
extraordinary remedy of certiorari where the appeal is not an adequate
remedy or equally beneficial, speedy and sufficient. It is the inadequacy – not the mere absence of all other legal
remedies and the danger of failure of justice without the writ, that must
usually determine the propriety of certiorari.”

In the case at bar, the decision of the Court of Appeals setting
aside the Order of Discharge of accused Nonilo Arile effectively crippled the
prosecution’s bid to oppose private respondent’s application for bail. It was the intention of the prosecution, had
not the Order of Discharge been annulled, to utilize the testimony of Nonilo
Arile to show that evidence of guilt against private respondent Jose Pring is
strong. But since the prosecution has
been warned by the trial court that it will soon decide the petition for bail
of private respondent Jose Pring, with or without the intended opposition to be
filed by the prosecution, the latter was left without choice and was thus
compelled under justified circumstances to file a special civil action for certiorari
to annul the judgment of the Court of Appeals, such action filed being an
extraordinary and speedy remedy. The
prosecution, which is in immediate need of the reinstatement of the Order of
Discharge resorted to this remedy not as a substitute for appeal but as the
proper remedy that can with dispatch address its predicament.

On the basis of the foregoing, there is no procedural impediment
barring this Court from entertaining the instant petition and resolving the
issue before us.

Prior to the 1985 Rules on Criminal Procedure, as amended,
Section 9, Rule 119 provided that:

“SEC. 9. Discharge
of one of several defendants to be
witness for the prosecution. – When two or more
persons are charged with the commission of a certain offense, the competent
court, at any time before they have entered upon their defense, may direct one
or more of them to be discharged with the latter’s consent that he or they may
be witnesses for the government when in the judgment of the court:

(a)    There
is absolute necessity for the testimony of the defendant whose discharge is
requested;

(b)    There is no other direct evidence available
for the proper prosecution of the offense committed, except the testimony of
said defendant;

(c)    The
testimony of said defendant can be substantially corroborated in its material
points;

(d)    Said defendant does not appear to be the
most guilty;

(e)    Said
defendant has not at any time been convicted of any offense involving moral
turpitude.”

On the other hand, Section 9, Rule 119 of the 1985 Rules on Criminal
Procedure, as amended, now provides that:

“SEC. 9. Discharge
of accused to be state witness. –
When two or more persons are jointly charged with the commission of any
offense, upon motion of the prosecution before resting its case, the court may
direct one or more of the accused to be discharged with their consent so that
they may be witnesses for the state when after requiring the prosecution to
present evidence and the sworn statement of each proposed state witness at a
hearing in support of the discharge, the court is satisfied that:

(a)    There
is absolute necessity for the testimony of the accused whose discharge is
requested;

(b)    There is no other direct evidence available
for the proper prosecution of the offense committed, except the testimony of
said accused;

(c)    The
testimony of said accused can be substantially corroborated in its material
points;

(d)    Said accused does not appear to be the most
guilty;

(e)    Said accused has not at any time been
convicted of any offense involving moral turpitude.

Evidence adduced in support of the discharge shall automatically
form part of the trial. If the court
denies the motion for discharge of the accused as state witness, his sworn
statement shall be inadmissible in evidence.”

The present rule thus amends the old rule by categorically
requiring a hearing where the prosecution shall present the sworn statement of
the proposed witness and its other evidence for the purpose of proving to the
satisfaction of the court that the conditions for discharge as above-enumerated
exist. The rationale behind this
amendment is to avoid a repetition of the case of Flores v. Sandiganbayan^[4]
where the Supreme Court set aside the Order of Discharge of the Sandiganbayan because
said court merely relied on the information furnished by the fiscal in forming
its conclusion of whether the conditions for discharge have been met.^[5]
The Supreme Court in Flores (supra) said that since it is the
Court’s exclusive responsibility to discharge an accused from the information,
it must see to it that:

“x x x the requisites prescribed by the rules exist,
particularly the requisite that there is absolute necessity for the testimony
of the defendant whose discharge is requested. Under this requisite, the fiscal must show that there is absolute
necessity for the testimony of the defendant whose discharge he seeks, in order
to be a witness for the prosecution. This requirement is aimed to curtail miscarriage of justice, before too common,
through the abuse of the power to ask for the discharge of one or more
defendants. Absolute necessity of the
testimony of the defendant, whose discharge is requested must now be shown if
the discharge is to be allowed, and the power to determine the necessity is
lodged upon the court. x x x.”

Thus, the term “hearing in support of the discharge” as
contemplated by said law refers to a proceeding, separate from the trial
itself, where the prosecution presents its evidence proving the existence of the
conditions for discharge and the sworn statement of the proposed witness. Necessarily, it does not foreclose; rather,
it affords an opportunity for the defense to enter its opposition against the
motion to discharge. All of this is
intended to aid the court in fulfilling its mandated duty of determining the
propriety or impropriety of the sought-after discharge. In requiring therefore, a “hearing in
support of the discharge,” the essential objective of the law is for the
court to receive or possess evidence for or against the discharge which will
serve as tangible and concrete basis, independent of the fiscal’s or
prosecution’s persuasions, in granting or denying the motion for discharge.

Hence, in resolving the issue in this petition, the proper question
we should address is: Was there a
failure to observe the spirit and intent of Sec. 9, Rule 119 in the case at
bar? We rule in the negative. The prosecution has submitted the sworn
statement of accused Nonilo Arile and its evidence showing that the conditions
for discharge have been met. Neither
can it be denied that the defense was able to oppose the motion to discharge
Nonilo Arile. With both litigants able
to present their side, the lack of actual hearing was not fatal enough to
undermine the court’s ability to determine whether the conditions prescribed
under Section 9, Rule 119 were satisfied. Having received evidence for and against the discharge, the Court
avoided a repetition of the case of Flores v. Sandiganbayan
(Supra).

Nor was there a violation of due process as private respondent
Jose Pring insists. As held in the case
of Juanita Yap Say and William Lim v.
Intermediate Appellate Court, et al.^[6]

” x x x ‘To be heard’ does not only mean verbal arguments in
court. Where a party was given the
opportunity to be heard, either through oral arguments or pleadings, there can
be no denial of procedural due process. ‘Due process is not semper et ubique judicial
process.'”

We reiterate: private respondent Jose Pring has filed his opposition to the motion
to discharge Nonilo Arile and even discussed the material points of the
latter’s testimony in his petition for bail. His assertion then that there was a denial of due process for failure to
conduct a hearing in support of the discharge is unfounded and not
substantiated after a perusal of the records of the case.

WHEREFORE, the petition is hereby GRANTED and the decision
of the Court of Appeals in CA G.R. No. 28933 rendered on October 23, 1992 is
SET ASIDE. Accordingly, the Order of
Discharge of Nonilo Arile issued by the trial court in Criminal Case No. 94159
on September 8, 1992 is thus REINSTATED. The temporary restraining order of March 30, 1993 issued by the Court En
Banc is hereby LIFTED.

SO ORDERED.

Narvasa, C.J., Cruz, Feliciano, Bidin, Griño-Aquino, Regalado,
Davide, Jr., Nocon, Bellosillo, Melo, and
Quiason, JJ., concur.

Padilla, J., on leave.

^[1]
Presco v. Court of Appeals, G.R. No. 82215, December 10, 1990, 192 SCRA
232 citing De la Cruz v. IAC, G.R. No. 63612, January 31, 1985, 134 SCRA
417; Balagtas Realty Corp. v. Romillo, G.R. Nos. L-48376-85, July 16,
1984, 130 SCRA 415; Lobete v. Sundiam, G.R. No. L-38278, June 28, 1983,
123 SCRA 95; Velasco v. Segundo, G.R. No. 58187, September 30, 1982, 117
SCRA 573.

^[2]
No. L-25771, March 29, 1982, 113 SCRA 107, 129.

^[3]
G.R. No. 76028, April 6, 1990, 184 SCRA 230, 235.

^[4]
G.R. No. L-63677, August 12, 1983, 124 SCRA 109.

^[5]
Pamaran, Manuel R., “The 1985 Rules on Criminal Procedure Annotated,”
1991 ed., pp. 400-401.

^[6]
G.R. No. L-73451, March 28, 1988, 159 SCRA 325.