THE ASSISTANT PROVINCIAL FISCAL OF BATAAN, PETITIONER, VS. AMBROSIO T. DOLLETE, JUDGE, COURT OF FIRST INSTANCE, BATAAN, RESPONDENT.

This is a petition by the Assistant Provincial Fiscal of Bataan for
certiorari to annul the order of respondent Judge, dated February 19, 1957, in
Criminal Case No. 5046 of the Court of First Instance of Bataan, denying
petitioner’s motion to dismiss the case, at the same time ordering him to file
the corresponding information within a period of five days.

The facts are
not disputed. In Criminal Case No. 278 of the Justice of the Peace Court of
Dinalupihan, Bataan, several persons were charged with “Offending the Religious
Feeling”, under Article 133 of the Revised Penal Code. It was alleged in the
complaint filed by the Chief of Police, that while devotees of the Iglesia Ni
Cristo were holding ceremony in a certain house in Dinalupihan, the accused
stopped in front thereof, made unnecessary noise, and shouted derogatory words
against the Iglesia Ni Cristo and its members, and even stoned the house. The
Justice of the Peace conducted the preliminary investigation and reduced to
writing the entire proceedings, wherein he made his findings of fact, after
which he elevated the case to the Court of First Instance of Bataan, being of
the opinion that “the crime has in fact been committed and that the accused are
probably guilty thereof”.

Upon receiving the record of the case, which was docketed in the Court of
First Instance as Criminal Case No. 5046, petitioner Assistant Provincial Fiscal
summoned the offended parties and prosecution witnesses who were represented by
a private prosecutor, to appear before him and testify for the purpose of
gathering the necessary evidence and to convince himself of the sufficiency
thereof, before going ahead with the prosecution. The offended parties and the
private prosecutor appeared, but declined to give any testimony, contending that
said Assistant Provincial Fiscal had no right to require them to do so, but that
they were reserving their testimonies when the case was tried before the Court
of First Instance. The petitioner, considering the attitude of the offended
parties, filed a motion for dismissal of the case. Said motion was opposed by
the private prosecutor. It was set for hearing, later actually heard, after
which respondent Judge issued the order subject of the present petition for
certiorari, not only denying said motion for dismissal, but ordering petitioner
to file the corresponding information. After failing to secure a reconsideration
of the said order, petitioner tried to appeal said order, but the appeal was
denied by respondent Judge on the ground that it was a mere interlocutory order
and consequently, not appealable. Hence this petition for certiorari.

There seerns to be a series of misunderstandings, if not errors, on the part
of the parties involved in this case. When a Fiscal or prosecuting attorney
receives a criminal case, elevated to the Court of First Instance by the Justice
of the Peace Court which has conducted the corresponding preliminary
investigation, and on the ground that there was probable cause, the said Fiscal
has the right to conduct his own investigation to convince himself of the
sufficiency of said evidences for the prosecution. Said this Court in People vs.
Ovilla, 65 Phil, 722:

“From the foregoing, it may be clearly inferred that after a criminal case
has been remanded by the justice of the peace to the Court of First Instance
which has jurisdiction to try it on the merits and before the provincial fiscal
has filed the necessary information the latter not only has the power but also
the duty to investigate the facts upon which the complaint filed in the justice
of the peace court was based, examine the evidence submitted to the justice of
the peace and such other evidences as the parties may deem proper to submit on
their own free will or on demand of the fiscal, for the purpose of determining
whether there is at least prima facie evidence establishing the guilt of the
accused and overcoming the presumption of innocence in his favor. If after he
has done all this and considering all the circumstances of the case, the fiscal
believes that the evidence is not sufficient to establish prima facie the giailt
of the accused, he should submit to the court before which the ease is pending
the corresponding motion for dismissal.” * * *

Later, in the case of Villanueva vs. Hon. Primitivo Gonzales, 99 Phil, 679,
52 Off. Gaz., [12], 5497, we slightly modified the above ruling. We said:

“Said Republic Act No. 732, governs preliminary investigations conducted by
provincial fiscal in cases originally instituted by them in courts of first
instance. It does not apply to cases begun in justice of the peace courts and,
thereafter, forwarded to the corresponding court of first instance, either after
the second phase of the preliminary investigation required in the Rules of Court
had been conducted before said justice of the peace courts, or after a waiver by
the accused of their right to said preliminary investigation. The reason is
obvious. In those cases the provincial fiscal is under no obligation to make
such preliminary investigation. He may rely upon the evidence introduced in, and
the facts found by, the justice of the peace court, at the preliminary
investigation therein conducted.”

But there is no question that a prosecuting attorney has the right to conduct
his own investigation. Because of said right, naturally, there is the
corresponding duty or obligation of the prosecution witness, specially the
offended parties, to submit to said investigation. Consequently, said offended
parties and their legal counsel, the private prosecution, were not justified in
refusing to submit to the same and to give their testimony. Because of their
refusal, the petitioner was in part justified in filing his motion to dismiss on
the ground that he was in no position, much less was he convinced, that he could
go on with the prosecution of the case. We say that petitioner was in part
justified, because he was not fully justified in asking for dismissal. Full
justification comes only after his investigation shall have convinced him that
the evidence available to him would not be sufficient to secure conviction. In
the case of U. S. vs. Barredo, 32 Phil., 444, this Tribunal said:

“We agree with the contentions of counsel that a conscientious prosecuting
official, whose investigations have satisfied him as to the innocence of persons
charged with the commission of crime, should not institute criminal proceedings
against such persons. But we are of the opinion that in the event that criminal
proceedings have been instituted and the investigations of the provincial fiscal
have satisfied him that the accused person is innocent, or that evidence
sufficient to secure conviction will not be forthcoming at the trial despite the
exercise of due diligence to that end, it then becomes his duty to advise the
court wherein the proceedings are pending as to the result of his
investigations, and to move the court to dismiss the proceedings, leaving it to
the court to take such action .as may be proper in the
premises.”

What the petitioner should have done was to advise respondent Judge of the
attitude and conduct of the offended parties and to request that they be ordered
to submit to an investigation by him. On his part, respondent Judge had the
right to deny the motion for dismissal. His action on similar motions is
discretionary. He may grant the motion to dismiss or deny the same. In the
present case, he denied the motion to dismiss on the ground that judging from
the record of the case in the Justice of the Peace Court, wherein the
proceedings were reduced in writing, there was sufficient evidence to sustain
the prosecution. In this, respondent Judge was right. As to the right of a Judge
to deny a motion for dismissal of a criminal case, we said in U.S. vs. Barredo,
supra:

“Upon a motion of the provincial fiscal to dismiss a complaint upon which an
accused person has been remanded for trial by a justice of the peace, it rests
in the sound discretion of the judge whether to aecede to such motion or not.
Ordinarily of course he will dismiss the action in accordance with the
suggestion of an experienced fiscal who has personally investigated the facts.
But if he is not satisfied with the reason assigned by the fiscal, or if it
appears to him from the record of the proceedings in the court of the justice of
the peace, or as a result of information furnished by the private prosecutor, or
otherwise, that the case should not be dismissed, he may deny the
motion.”

But there was no need for respondent Judge in his order denying the motion
for dismissal, to direct the Fiscal (petitioner) to file the information within
five days. The denial of the motion to dismiss implied the prosecution of the
case, although not necessarily by the same fiscal who moved for dismissal. It is
rather embarrassing for a prosecuting attorney to be compelled to prosecute a
case when he is in no position to do so, because in his opinion, he does not
have the necessary evidence to secure conviction, or he is not convinced of the
merits of the case. Now, if the Assistant Provincial Fiscal fails or refuses to
file said information within a reasonable time, then either the offended parties
or the court could invoke Section 1679 of the Revised Administrative Code, so
that the Department of Justice could designate one to act as Provincial Fiscal
and file the corresponding complaint or information.

Another error was
the attempt of the petitioner to appeal the order denying his motion to dismiss.
Aside from said order being discretionary, it is interlocutory in character and
not appealable.

In view of the foregoing, the writ is granted in part, and in part denied. We
cannot and we will not annul the order complained of in so far as it denies the
motion for dismissal filed by petitioner Assistant Provincial Fiscal, for the
reason that that action of the respondent Judge was wholly within his right and
discretion, but we can and do set it aside in so far as it orders petitioner to
file the corresponding information. It is suggested that the respondent Judge
either order the offended parties to submit to an investigation to be conducted
by petitioner, so that the latter may gather the necessary evidence to support
the prosecution, or to convince himself of the merits of the case, from the
point of view of the Government; or else, considering the attitude of the
petitioner and to avoid embarrassment, to have either the trial court or the
offended parties make manifestations to the Department of Justice for the
designation of an Acting Provincial Fiscal. No costs.

Paras, C.J., Bengzon, Reyes A., Bautista Angelo, Labrador, Concepcion,
Reyes, J.B.L., and Endencia, JJ., concur.