Republic of the Philippines
SUPREME COURT
Manila

Judges of Regional Trial Courts (formerly Courts of First Instance) no longer have authority to conduct preliminary investigations. That authority, at one time reposed in them under Sections 13, 14 and 16, Rule 112 of the Rules of Court of 1964, ¹ was removed from them by the 1985 Rules on Criminal Procedure, effective on January 1, 1985, ² which deleted all provisions granting that power to said Judges. We had occasion to point this out in Salta v. Court of Appeals, 143 SCRA 228, and to stress as well certain other basic propositions, namely: (1) that the conduct of a preliminary investigation is "not a judicial function ... (but) part of the prosecution's job, a function of the executive," (2) that wherever "there are enough fiscals or prosecutors to conduct preliminary investigations, courts are counseled to leave this job which is essentially executive to them," and the fact "that a certain power is granted does not necessarily mean that it should be indiscriminately exercised."

The 1988 Amendments to the 1985 Rules on Criminal Procedure, declared effective on October 1, 1988 ³ did not restore that authority to Judges of Regional Trial Courts; said amendments did not in fact deal at all with the officers or courts having authority to conduct preliminary investigations.

This is not to say, however, that somewhere along the line RTC Judges also lost the power to make a preliminary examination for the purpose of determining whether probable cause exists to justify the issuance of a warrant of arrest (or search warrant). Such a power — indeed, it is as much a duty as it is a power — has been and remains vested in every judge by the provision in the Bill of Rights in the 1935, the 1973 and the present (1987) Constitutions securing the people against unreasonable searches and seizures, ⁴ thereby placing it beyond the competence of mere Court rule or statute to revoke. The distinction must, therefore, be made clear while an RTC Judge may no longer conduct preliminary investigations to ascertain whether there is sufficient ground for the filing of a criminal complaint or information, ⁵ he retains the authority, when such a pleading is filed with his court, to determine whether there is probable cause justifying the issuance of a warrant of arrest. ⁶ It might be added that this distinction accords, rather than conflicts, with the rationale of Salta because both law and rule, in restricting to judges the authority to order arrest, recognize that function to be judicial in nature. ⁷

The proceedings at bar have reference to the law in 1971, at which time a preliminary investigation (now in question) was conducted by respondent Judge of the Circuit Criminal Court. ⁸ He did so with respect to a complaint dated July 9, 1971 (and Joint Affidavit dated July 21, 1971) filed directly with his Court by Renato Montes and Jose de Silva against Manuel Laconico The complaint charged the latter with estafa in the amount of P1,000.00. The investigation culminated in the issuance by respondent Judge of an Order on July 28, 1971 ⁹ containing the following dispositive portion:

Notice of the Order was served on the Provincial Fiscal of Rizal, herein petitioner, on July 29, 1971, but he failed to file the information required within the time appointed, or at any time thereafter. Consequently, on October 1, 1971, he was directed by His Honor to explain within ten (10) days "why he should not be punished for contempt of court for delaying the speedy administration of justice for disobeying a lawful order of the Court." ¹⁰ The Fiscal filed a motion for reconsideration, ¹¹ but this was denied, by Order dated October 19, 1971. ¹² Hence, this petition for certiorari and prohibition was presented by petitioner Fiscal, seeking annulment of the aforesaid orders.

Petitioner submits that-

During the time that it existed, ¹³ the Circuit Criminal Court had the same power as a Court of First Instance to conduct preliminary investigations of offenses cognizable by it. So we have ruled in two (2) cases: Collector of Customs v. Villaluz, 71 SCRA 356, ¹⁴ and de Guzman v. Villaluz, 117 SCRA 182. ¹⁵

The Judge is mistaken. It is the fiscal who is given by law "direction and control" of all criminal actions. ¹⁶ It is he who initiates all prosecutions in the name of the People of the Philippines, by information or complaint, against all persons who appear to be responsible for the offense involved. ¹⁷ It is he (or other public prosecutor), therefore, who is primarily responsible for ascertaining through a preliminary inquiry or proceeding "whether there is reasonable ground to believe that an offense has been committed and the accused is probably guilty thereof." ¹⁸ That function, to repeat, is not judicial but executive. When a preliminary investigation is conducted by a judge, the judge performs a non-judicial function, as an exception to his usual judicial duties. The assignment of that function to judges of inferior courts and to a very limited extent to courts of first instance was dictated by "necessity and practical considerations," and the consequent policy, as we said in Salta, was that "wherever there were enough fiscals or prosecutors to conduct preliminary investigations, courts were to leave that job which is essentially executive to them." It follows that the conclusions derived by a judge from his own investigation cannot be superior to and conclusively binding on the fiscal or public prosecutor, in whom that function is principally and more logically lodged. These considerations argue against giving the term "refer" used in Section 13 of the former Rule 112-which provided that if the judge, after conducting a preliminary investigation finds probable cause against a defendant," ... be shall issue a warrant for his arrest, and thereafter refer the case to the fiscal for the filing of the corresponding information"-the effect of imposing upon the fiscal the mandatory duty to file an information merely upon such reference being made; and this, even without regard to the fact that in its ordinary sense, the word "refer" conveys no such import nor connotes any compulsion. And it was no doubt on account of these obvious considerations that, as Salta further observes, Section 37 of Batas Pambansa Blg. 129 reiterated" the removal from Judges of Metropolitan Trial Courts in the National Capital Region of the authority to conduct preliminary investigations" and "Section 2 of Rule 112 of the 1985 Rules on Criminal Procedure no longer authorizes Regional Trial Judges to conduct preliminary investigations." It may not be amiss to point out, in this connection, that the 1988 Amendments to the 1985 Rules on Criminal Procedure (Sec. 5, Rule 112) explicitly provide inter alia that "(s)hould the provincial or city fiscal disagree with the findings of the investigating judge on the existence of probable cause, the fiscal's ruling shall prevail." ¹⁹

Be it noted, however, that once the fiscal files an information with the Court and the Court thereby acquires jurisdiction over the case, the case may not be dismissed at the fiscal's instance except only by consent of the Court, which may grant or withhold it in its discretion. ²⁰

It was therefore grave abuse of discretion amounting to lack of jurisdiction on His Honor's part to seek to foreclose the petitioner fiscal's prerogative to conduct his own preliminary investigation to determine for himself the existence or nonexistence of probable cause, and to require him to show cause for not filing the information within twenty-four (24) hours, on the sole basis of the Judge's conclusions. The fiscal was not bound to a blind, uncritical and unavoidable acceptance of those conclusions. He had the duty to satisfy himself of the existence of probable cause, and could not shirk or be made to evade it by an unreasoning and indiscriminate reliance on the judge's investigation.

Since the controversy at bar arose, many years have passed during which Circuit Criminal Courts were abolished, as already stated, ²¹ the petitioner Fiscal's public service was ended by compulsory retirement, and the respondent's stint as Judge, ended by his promotion to a higher court. It is time, too, that this case is ended.

WHEREFORE, the challenged Orders are hereby annulled and set aside. This resolution is immediately executory. No costs.

Separate Opinions

CRUZ, J., concurring:

I concur as long it is understood that the fiscal prevails over the judge only in the determination of the existence of a prima facie case to justify the filing of a complaint or information. This task is concededly executive. But the determination of probable cause to justify the issuance of a search warrant or a warrant of arrest is the constitutional prerogative of the judge and may not be withdrawn from him or even only limited by statute or the Rules of Court. This task is undoubtedly judicial. The findings of the fiscal in the preliminary investigation do not control or foreclose the exercise of the power conferred personally on the judge under Section 2 of the Bill of Rights. That power is his alone.