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Const it ut ion St a t ut es Exec ut ive Issua nc es Judic ia l Issua nc es Ot her Issua nc es Jurisprudenc e Int erna t iona l Lega l Resourc es
AUSL Exc lusive

Republic of t he Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 101837 February 11, 1992

ROLITO GO y TAMBUNTING, pet it ioner,

vs.
THE COURT OF APPEALS, THE HON. BENJAMIN V. PELAYO, Presiding Judge, Branch 168, Regional Trial
Court, NCJR Pasig, M.M., and PEOPLE OF THE PHILIPPINES, respondent s.

FELICIANO, J.:

According to t he findings of t he San Juan Police in t heir Invest igat ion Report , 1 on 2 July 1991, Eldon Maguan was
driving his car along Wilson St ., San Juan, Met ro Manila, heading towards P. Guevarra St . Pet it ioner ent ered
Wilson St ., where it is a one-way st reet and st art ed t ravelling in t he opposit e or "wrong" direct ion. At t he corner
of Wilson and J. Abad Santos St s., pet it ioner's and Maguan's cars nearly bumped each ot her. Pet it ioner alight ed
from his car, walked over and shot Maguan inside his car. Pet it ioner t hen boarded his car and left t he scene. A
securit y guard at a nearby rest aurant was able to t ake down pet it ioner's car plat e number. T he police arrived
short ly t hereaft er at t he scene of t he shoot ing and t here ret rieved an empt y shell and one round of live
ammunit ion for a 9 mm caliber pistol. Verificat ion at t he Land Transport at ion Office showed t hat t he car was
regist ered to one Elsa Ang Go.

T he following day, t he police ret urned to t he scene of t he shoot ing to find out where t he suspect had come
from; t hey were informed t hat pet it ioner had dined at Cravings Bake Shop short ly before t he shoot ing. T he
police obt ained a facsimile or impression of t he credit card used by pet it ioner from t he cashier of t he bake
shop. T he securit y guard of t he bake shop was shown a pict ure of pet it ioner and he posit ively ident ified him as
t he same person who had shot Maguan. Having est ablished t hat t he assailant was probably t he pet it ioner, t he
police launched a manhunt for pet it ioner.

On 8 July 1991, pet it ioner present ed himself before t he San Juan Police St at ion to verify news report s t hat he
was being hunt ed by t he police; he was accompanied by t wo (2) lawyers. T he police fort hwit h det ained him. An
eyewit ness to t he shoot ing, who was at t he police st at ion at t hat t ime, posit ively ident ified pet it ioner as t he
gunman. T hat same day, t he police prompt ly filed a complaint for frust rat ed homicide 2 against pet it ioner wit h
t he Office of t he Provincial Prosecutor of Rizal. First Assist ant Provincial Prosecutor Dennis Villa Ignacio
("Prosecutor") informed pet it ioner, in t he presence of his lawyers, t hat he could avail himself of his right to
preliminary invest igat ion but t hat he must first sign a waiver of t he provisions of Art icle 125 of t he Revised
Penal Code. Pet it ioner refused to execut e any such waiver.

On 9 July 1991, while t he complaint was st ill wit h t he Prosecutor, and before an informat ion could be filed in
court , t he vict im, Eldon Maguan, died of his gunshot wound(s).

Accordingly, on 11 July 1991, t he Prosecutor, inst ead of filing an informat ion for frust rat ed homicide, filed an
informat ion for murder 3 before t he Regional Trial Court . No bail was recommended. At t he bot tom of t he
informat ion, t he Prosecutor cert ified t hat no preliminary invest igat ion had been conduct ed because t he
accused did not execut e and sign a waiver of t he provisions of Art icle 125 of t he Revised Penal Code.

In t he aft ernoon of t he same day, 11 July 1991, counsel for pet it ioner filed wit h t he Prosecutor an omnibus
mot ion for immediat e release and proper preliminary invest igat ion,4 alleging t hat t he warrant less arrest of
pet it ioner was unlawful and t hat no preliminary invest igat ion had been conduct ed before t he informat ion was
filed. Pet it ioner also prayed t hat he be released on recognizance or on bail. Provincial Prosecutor Mauro Cast ro,
act ing on t he omnibus mot ion, wrot e on t he last page of t he mot ion it self t hat he int erposed no object ion to
pet it ioner being grant ed provisional libert y on a cash bond of P100,000.00.

On 12 July 1991, pet it ioner filed an urgent ex-parte mot ion for special raffle 5 in order to expedit e act ion on t he
Prosecutor's bail recommendat ion. T he case was raffled to t he sala of respondent Judge, who, on t he same
dat e, approved t he cash bond 6 post ed by pet it ioner and ordered his release. 7 Pet it ioner was in fact released
t hat same day.

On 16 July 1991, t he Prosecutor filed wit h t he Regional Trial Court a mot ion for leave to conduct preliminary
invest igat ion8 and prayed t hat in t he meant ime all proceedings in t he court be suspended. He st at ed t hat
pet it ioner had filed before t he Office of t he Provincial Prosecutor of Rizal an omnibus mot ion for immediat e
release and preliminary invest igat ion, which mot ion had been grant ed by Provincial Prosecutor Mauro Cast ro,
who also agreed to recommend cash bail of P100,000.00. T he Prosecutor at t ached to t he mot ion for leave a
copy of pet it ioner's omnibus mot ion of 11 July 1991.

Also on 16 July 1991, t he t rial court issued an Order 9 grant ing leave to conduct preliminary invest igat ion and
cancelling t he arraignment set for 15 August 1991 unt il aft er t he prosecut ion shall have concluded it s
preliminary invest igat ion.

On 17 July 1991, however, respondent Judge motu proprio issued an Order, 10 embodying t he following: (1) t he 12
July 1991 Order which grant ed bail was recalled; pet it ioner was given 48 hours from receipt of t he Order to
surrender himself; (2) t he 16 July 1991 Order which grant ed leave to t he prosecutor to conduct preliminary
invest igat ion was recalled and cancelled; (3) pet it ioner's omnibus mot ion for immediat e release and preliminary
invest igat ion dat ed 11 July 1991 was t reat ed as a pet it ion for bail and set for hearing on 23 July 1991.

On 19 July 1991, pet it ioner filed a pet it ion for certiorari, prohibit ion and mandamus before t he Supreme Court
assailing t he 17 July 1991 Order, cont ending t hat t he informat ion was null and void because no preliminary
invest igat ion had been previously conduct ed, in violat ion of his right to due process. Pet it ioner also moved for
suspension of all proceedings in t he case pending resolut ion by t he Supreme Court of his pet it ion; t his mot ion
was, however, denied by respondent Judge.

On 23 July 1991, pet it ioner surrendered to t he police.

By a Resolut ion dat ed 24 July 1991, t his Court remanded t he pet it ion for certiorari, prohibit ion and mandamus to
t he Court of Appeals.

On 16 August 1991, respondent Judge issued an order in open court set t ing t he arraignment of pet it ioner on 23
August 1991.

On 19 August 1991, pet it ioner filed wit h t he Court of Appeals a mot ion to rest rain his arraignment .

On 23 August 1991, respondent judge issued a Commit ment Order direct ing t he Provincial Warden of Rizal to
admit pet it ioner into his custody at t he Rizal Provincial Jail. On t he same dat e, pet it ioner was arraigned. In view,
however, of his refusal to ent er a plea, t he t rial court ent ered for him a plea of not guilt y. T he Trial court t hen set
t he criminal case for cont inuous hearings on 19, 24 and 26 Sept ember; on 2, 3, 11 and 17 October; and on 7, 8, 14,
15, 21 and 22 November 1991. 11

On 27 August 1991, pet it ioner filed a pet it ion for habeas corpus 12 in the Court of Appeals. He alleged that in view of public
respondent's failure to join issues in the petition for certiorari earlier filed by him, after the lapse of more than a month, thus prolonging his detention, he was
entitled to be released on habeas corpus.

On 30 August 1991, t he Court of Appeals issued t he writ of habeas corpus. 13 T he pet it ion for certiorari, prohibit ion
and mandamus, on t he one hand, and t he pet it ion for habeas corpus, upon t he ot her, were subsequent ly
consolidat ed in t he Court of Appeals.

T he Court of Appeals, on 2 Sept ember 1991, issued a resolut ion denying pet it ioner's mot ion to rest rain his
arraignment on t he ground t hat t hat mot ion had become moot and academic.

On 19 Sept ember 1991, t rial of t he criminal case commenced and t he prosecut ion present ed it s first wit ness.
14
On 23 Sept ember 1991, t he Court of Appeals rendered a consolidat ed decision dismissing t he t wo (2)
pet it ions, on t he following grounds:

a. Pet it ioner's warrant less arrest was valid because t he offense for which he was arrest ed and
charged had been "freshly commit t ed." His ident it y had been est ablished t hrough invest igat ion. At
t he t ime he showed up at t he police st at ion, t here had been an exist ing manhunt for him. During t he
confront at ion at t he San Juan Police St at ion, one wit ness posit ively ident ified pet it ioner as t he
culprit .
 b. Pet it ioner's act of post ing bail const it ut ed waiver of any irregularit y at t ending his arrest . He
waived his right to preliminary invest igat ion by not invoking it properly and seasonably under t he
Rules.

c. T he t rial court did not abuse it s discret ion when it issued t he 17 July 1991 Order because t he t rial
court had t he inherent power to amend and cont rol it s processes so as to make t hem conformable
to law and just ice.

d. Since t here was a valid informat ion for murder against pet it ioner and a valid commit ment order
(issued by t he t rial judge aft er pet it ioner surrendered to t he aut horit ies whereby pet it ioner was
given to t he custody of t he Provincial Warden), t he pet it ion for habeas corpus could not be grant ed.

On 3 October 1991, t he prosecut ion present ed t hree (3) more wit nesses at t he t rial. Counsel for pet it ioner also
filed a "Wit hdrawal of Appearance" 15 wit h t he t rial court , wit h pet it ioner's conformit y.

On 4 October 1991, t he present Pet it ion for Review on Certiorari was filed. On 14 October 1991, t he Court issued
a Resolut ion direct ing respondent Judge to hold in abeyance t he hearing of t he criminal case below unt il furt her
orders from t his Court .

In t his Pet it ion for Review, t wo (2) principal issues need to be addressed: first , whet her or not a lawful
warrant less arrest had been effect ed by t he San Juan Police in respect of pet it ioner Go; and second, whet her
pet it ioner had effect ively waived his right to preliminary invest igat ion. We consider t hese issues seriatim.

In respect of t he first issue, t he Solicitor General argues t hat under t he fact s of t he case, pet it ioner had been
validly arrest ed wit hout warrant . Since pet it ioner's ident it y as t he gunman who had shot Eldon Maguan on 2 July
1991 had been sufficient ly est ablished by police work, pet it ioner was validly arrest ed six (6) days lat er at t he San
Juan Police St at ion. T he Solicitor General invokes Nazareno v. Station Commander, etc., et al., 16 one of t he seven
(7) cases consolidat ed wit h In the Matter of the Petition for Habeas Corpus of Roberto Umil, etc., v. Ramos, et al. 17
where a majorit y of t he Court upheld a warrant ees arrest as valid alt hough effect ed fourt een (14) days aft er
t he killing in connect ion wit h which Nazareno had been arrest ed. Accordingly, in t he view of t he Solicitor General,
t he provisions of Sect ion 7, Rule 112 of t he Rules of Court were applicable and because pet it ioner had declined
to waive t he provisions of Art icle 125 of t he Revised Penal Code, t he Prosecutor was legally just ified in filing t he
informat ion for murder even wit hout preliminary invest igat ion.

On t he ot her hand, pet it ioner argues t hat he was not lawfully arrest ed wit hout warrant because he went to t he
police st at ion six (6) days aft er t he shoot ing which he had allegedly perpet rat ed. T hus, pet it ioner argues, t he
crime had not been "just commit t ed" at t he t ime t hat he was arrest ed. Moreover, none of t he police officers
who arrest ed him had been an eyewit ness to t he shoot ing of Maguan and accordingly none had t he "personal
knowledge" required for t he lawfulness of a warrant ees arrest . Since t here had been no lawful warrant less
arrest . Sect ion 7, Rule 112 of t he Rules of Court which est ablishes t he only except ion to t he right to preliminary
invest igat ion, could not apply in respect of pet it ioner.

T he reliance of bot h pet it ioner and t he Solicitor General upon Umil v. Ramos is, in t he circumst ances of t his case,
misplaced. In Umil v. Ramos, by an eight -to-six vot e, t he Court sust ained t he legalit y of t he warrant less arrest s
of pet it ioners made from one (1) to fourt een days aft er t he act ual commission of t he offenses, upon t he
ground t hat such offenses const it ut ed "cont inuing crimes." T hose offenses were subversion, membership in
an out lawed organizat ion like t he New People's Army, et c. In t he inst ant case, t he offense for which pet it ioner
was arrest ed was murder, an offense which was obviously commenced and complet ed at one definit e locat ion
in t ime and space. No one had pret ended t hat t he fat al shoot ing of Maguan was a "cont inuing crime."

Secondly, we do not believe t hat t he warrant ees "arrest " or det ent ion of pet it ioner in t he inst ant case falls
wit hin t he t erms of Sect ion 5 of Rule 113 of t he 1985 Rules on Criminal Procedure which provides as follows:

Sec. 5 Arrest without warrant; when lawful. — A peace officer or a privat e person may, wit hout warrant ,
arrest a person:

(a) When, in his presence, t he person to be arrest ed has commit t ed, is act ually commit t ing, or is
at t empt ing to commit an offense;

(b) When an offense has in fact just been commit t ed, and he has personal knowledge of fact s
indicat ing t hat t he person to be arrest ed has commit t ed it ; and

(c) When t he person to be arrest ed is a prisoner who has escaped from a penal est ablishment or
place where he is serving final judgment or t emporarily confined while his case is pending, or has
escaped while being t ransferred from one confinement to anot her.
 In cases falling under paragraphs (a) and (b) hereof, t he person arrest ed wit hout a warrant shall be
fort hwit h delivered to t he nearest police st at ion or jail, and he shall be proceed against in
accordance wit h Rule 112, Sect ion 7.

Pet it ioner's "arrest " took place six (6) days aft er t he shoot ing of Maguan. T he "arrest ing" officers obviously were
not present , wit hin t he meaning of Sect ion 5(a), at t he t ime pet it ioner had allegedly shot Maguan. Neit her could
t he "arrest " effect ed six (6) days aft er t he shoot ing be reasonably regarded as effect ed "when [t he shoot ing
had] in fact just been commit t ed" wit hin t he meaning of Sect ion 5(b). Moreover, none of t he "arrest ing" officers
had any "personal knowledge" of fact s indicat ing t hat pet it ioner was t he gunman who had shot Maguan. T he
informat ion upon which t he police act ed had been derived from st at ement s made by alleged eyewit nesses to
t he shoot ing — one st at ed t hat pet it ioner was t he gunman; anot her was able to t ake down t he alleged
gunman's car's plat e number which t urned out to be regist ered in pet it ioner's wife's name. T hat informat ion did
not , however, const it ut e "personal knowledge." 18

It is t hus clear to t he Court t hat t here was no lawful warrant less arrest of pet it ioner wit hin t he meaning of
Sect ion 5 of Rule 113. It is clear too t hat Sect ion 7 of Rule 112, which provides:

Sec. 7 When accused lawfully arrested without warrant. — When a person is lawfully arrested without a
warrant for an offense cognizable by the Regional Trial Court t he complaint or informat ion may be filed
by t he offended part y, peace officer or fiscal wit hout a preliminary invest igat ion having been first
conduct ed, on t he basis of t he affidavit of t he offended part y or arrest ing office or person

However, before the filing of such complaint or information, the person arrested may ask for a preliminary
investigation by a proper officer in accordance wit h t his Rule, but he must sign a waiver of t he
provisions of Art icle 125 of t he Revised Penal Code, as amended, wit h t he assist ance of a lawyer
and in case of non-availabilit y of a lawyer, a responsible person of his choice. Notwithstanding such
waiver, he may apply for bail as provided in t he corresponding rule and t he invest igat ion must be
t erminat ed wit hin fift een (15) days from it s incept ion.

If the case has been filed in court without a preliminary investigation having been first conducted, the
accused may wit hin five (5) days from t he t ime he learns of t he filing of t he informat ion, ask for a
preliminary investigation wit h t he same right to adduce evidence in his favor in t he manner
prescribed in t his Rule. (Emphasis supplied)

is also not applicable. Indeed, pet it ioner was not arrest ed at all. When he walked into San Juan Police St at ion,
accompanied by t wo (2) lawyers, he in fact placed himself at t he disposal of t he police aut horit ies. He did not
st at e t hat he was "surrendering" himself, in all probabilit y to avoid t he implicat ion he was admit t ing t hat he had
slain Eldon Maguan or t hat he was ot herwise guilt y of a crime. When t he police filed a complaint for frust rat ed
homicide wit h t he Prosecutor, t he lat t er should have immediat ely scheduled a preliminary invest igat ion to
det ermine whet her t here was probable cause for charging pet it ioner in court for t he killing of Eldon Maguan.
Inst ead, as not ed earlier, t he Prosecutor proceed under t he erroneous supposit ion t hat Sect ion 7 of Rule 112
was applicable and required pet it ioner to waive t he provisions of Art icle 125 of t he Revised Penal Code as a
condit ion for carrying out a preliminary invest igat ion. T his was subst ant ive error, for pet it ioner was ent it led to a
preliminary invest igat ion and t hat right should have been accorded him wit hout any condit ions. Moreover, since
pet it ioner had not been arrest ed, wit h or wit hout a warrant , he was also ent it led to be released fort hwit h
subject only to his appearing at t he preliminary invest igat ion.

Turning to t he second issue of whet her or not pet it ioner had waived his right to preliminary invest igat ion, we
not e t hat pet it ioner had from t he very beginning demanded t hat a preliminary invest igat ion be conduct ed. As
earlier point ed out , on t he same day t hat t he informat ion for murder was filed wit h t he Regional Trial Court ,
pet it ioner filed wit h t he Prosecutor an omnibus mot ion for immediat e release and preliminary invest igat ion. T he
Solicitor General cont ends t hat t hat omnibus mot ion should have been filed wit h t he t rial court and not wit h t he
Prosecutor, and t hat t he pet it ioner should accordingly be held to have waived his right to preliminary
invest igat ion. We do not believe t hat waiver of pet it ioner's st at utory right to preliminary invest igat ion may be
predicat ed on such a slim basis. T he preliminary invest igat ion was to be conduct ed by t he Prosecutor, not by
t he Regional Trial Court . It is t rue t hat at t he t ime of filing of pet it ioner's omnibus mot ion, t he informat ion for
murder had already been filed wit h t he Regional Trial Court : it is not clear from t he record whet her pet it ioner was
aware of t his fact at t he t ime his omnibus mot ion was act ually filed wit h t he Prosecutor. In Crespo v. Mogul, 19
t his Court held:

T he preliminary invest igat ion conduct ed by t he fiscal for t he purpose of det ermining whet her a
prima facie case exist s to warrant ing t he prosecut ion of t he accused is t erminat ed upon t he filing
of t he informat ion in t he proper court . In t urn, as above st at ed, the filing of said information sets in
motion the criminal action against the accused in Court. Should the fiscal find it proper to conduct a
reinvestigation of the case, at such stage, the permission of the Court must be secured. After such
reinvestigation the finding and recommendations of the fiscal should be submitted to the Court for
appropriate action. While it is t rue t hat t he fiscal has t he quasi-judicial discret ion to det ermine
 whet her or not a criminal case should be filed in court or not , once t he case had already been
brought to Court what ever disposit ion t he fiscal may feel should be proper in t he case t hereaft er
should be addressed for t he considerat ion of t he Court . T he only qualificat ion is t hat t he act ion of
t he Court must not impair t he subst ant ial right s of t he accused., or t he right of t he People to due
process of law.

xxx xxx xxx

T he rule t herefore in t his jurisdict ion is t hat once a complaint or information is filed in Court any
disposition of the case [such] as its dismissal or the conviction or acquittal of the accused rests in the sound
discretion of the Court. Alt hough t he fiscal ret ains t he direct ion and cont rol of t he prosecut ion of
criminal cases even while t he case is already in Court he cannot impose his opinion on t he t rial
court . T he Court is t he best and sole judge on what to do wit h t he case before it . . . . 20 (Cit at ions
omit t ed; emphasis supplied)

Nonet heless, since pet it ioner in his omnibus mot ion was asking for preliminary invest igat ion and not for a
re-invest igat ion (Crespo v. Mogul involved a re-investigation), and since t he Prosecutor himself did file wit h
t he t rial court , on t he 5t h day aft er filing t he informat ion for murder, a mot ion for leave to conduct
preliminary invest igat ion (at t aching to his mot ion a copy of pet it ioner's omnibus mot ion), we conclude
t hat pet it ioner's omnibus mot ion was in effect filed wit h t he t rial court . What was cryst al clear was t hat
pet it ioner did ask for a preliminary invest igat ion on t he very day t hat t he informat ion was filed wit hout
such preliminary invest igat ion, and t hat t he t rial court was five (5) days lat er apprised of t he desire of t he
pet it ioner for such preliminary invest igat ion. Finally, t he t rial court did in fact grant t he Prosecutor's prayer
for leave to conduct preliminary invest igat ion. T hus, even on t he (mist aken) supposit ion apparent ly made
by t he Prosecutor t hat Sect ion 7 of Rule 112 of t he Revised Court was applicable, t he 5-day reglement ary
period in Sect ion 7, Rule 112 must be held to have been subst ant ially complied wit h.

We believe and so hold t hat pet it ioner did not waive his right to a preliminary invest igat ion. While t hat right is
st at utory rat her t han const it ut ional in it s fundament , since it has in fact been est ablished by st at ut e, it is a
component part of due process in criminal just ice. 21 T he right to have a preliminary invest igat ion conduct ed
before being bound over to t rial for a criminal offense and hence formally at risk of incarcerat ion or some ot her
penalt y, is not a mere formal or t echnical right ; it is a substantive right . T he accused in a criminal t rial is inevit ably
exposed to prolonged anxiet y, aggravat ion, humiliat ion, not to speak of expense; t he right to an opport unit y to
avoid a process painful to any one save, perhaps, to hardened criminals, is a valuable right . To deny pet it ioner's
claim to a preliminary invest igat ion would be to deprive him t he full measure of his right to due process.

T he quest ion may be raised whet her pet it ioner st ill ret ains his right to a preliminary invest igat ion in t he inst ant
case considering t hat he was already arraigned on 23 August 1991. T he rule is t hat t he right to preliminary
invest igat ion is waived when t he accused fails to invoke it before or at the time of entering a plea at arraignment . 22
In t he inst ant case, pet it ioner Go had vigorously insist ed on his right to preliminary invest igat ion before his
arraignment. At t he t ime of his arraignment , pet it ioner was already before t he Court of Appeals on certiorari,
prohibit ion and mandamus precisely asking for a preliminary invest igat ion before being forced to st and t rial.

Again, in t he circumst ances of t his case, we do not believe t hat by post ing bail pet it ioner had waived his right to
preliminary invest igat ion. In People v. Selfaison, 23 we did hold t hat appellant s t here had waived t heir right to
preliminary invest igat ion because immediat ely aft er t heir arrest , t hey filed bail and proceeded to t rial "without
previously claiming that they did not have the benefit of a preliminary investigation." 24 In t he inst ant case, pet it ioner Go
asked for release on recognizance or on bail and for preliminary invest igat ion in one omnibus mot ion. He had
t hus claimed his right to preliminary invest igat ion before respondent Judge approved t he cash bond post ed by
pet it ioner and ordered his release on 12 July 1991. Accordingly, we cannot reasonably imply waiver of preliminary
invest igat ion on t he part of pet it ioner. In fact , when t he Prosecutor filed a mot ion in court asking for leave to
conduct preliminary invest igat ion, he clearly if impliedly recognized t hat pet it ioner's claim to preliminary
invest igat ion was a legit imat e one.

We would clarify, however, t hat cont rary to pet it ioner's cont ent ion t he failure to accord preliminary invest igat ion,
while const it ut ing a denial of t he appropriat e and full measure of t he st at utory process of criminal just ice, did
not impair t he validit y of t he informat ion for murder nor affect t he jurisdict ion of t he t rial court . 25

It must also be recalled t hat t he Prosecutor had act ually agreed t hat pet it ioner was ent it led to bail. T his was
equivalent to an acknowledgment on t he part of t he Prosecutor t hat t he evidence of guilt t hen in his hands was
not st rong. Accordingly, we consider t hat t he 17 July 1991 order of respondent Judge recalling his own order
grant ing bail and requiring pet it ioner to surrender himself wit hin fort y-eight (48) hours from not ice, was plainly
arbit rary considering t hat no evidence at all — and cert ainly no new or additional evidence — had been submit t ed
to respondent Judge t hat could have just ified t he recall of his order issued just five (5) days before. It follows
t hat pet it ioner was ent it led to be released on bail as a mat t er of right .
T he final quest ion which t he Court must face is t his: how does t he fact t hat , in t he inst ant case, t rial on t he
merit s has already commenced, t he Prosecutor having already present ed four (4) wit nesses, impact upon,
first ly, pet it ioner's right to a preliminary invest igat ion and, secondly, pet it ioner's right to be released on bail?
Does he cont inue to be ent it led to have a preliminary invest igat ion conduct ed in respect of t he charge against
him? Does pet it ioner remain ent it led to be released on bail?

Turning first to t he mat t er of preliminary invest igat ion, we consider t hat pet it ioner remains ent it led to a
preliminary invest igat ion alt hough t rial on t he merit s has already began. Trial on t he merit s should be suspended
or held in abeyance and a preliminary invest igat ion fort hwit h accorded to pet it ioner. 26 It is t rue t hat t he
Prosecutor might , in view of t he evidence t hat he may at t his t ime have on hand, conclude t hat probable cause
exist s; upon t he ot her hand, t he Prosecutor conceivably could reach t he conclusion t hat t he evidence on hand
does not warrant a finding of probable cause. In any event , t he const it ut ional point is t hat pet it ioner was not
accorded what he was ent it led to by way of procedural due process. 27 Pet it ioner was forced to undergo
arraignment and lit erally pushed to t rial wit hout preliminary invest igat ion, wit h ext raordinary hast e, to t he
applause from t he audience t hat filled t he court room. If he submit t ed to arraignment at t rial, pet it ioner did so
"kicking and screaming," in a manner of speaking . During t he proceedings held before t he t rial court on 23
August 1991, t he dat e set for arraignment of pet it ioner, and just before arraignment , counsel made very clear
pet it ioner's vigorous prot est and object ion to t he arraignment precisely because of t he denial of preliminary
invest igat ion. 28 So energet ic and det ermined were pet it ioner's counsel's prot est s and object ions t hat an
obviously angered court and prosecutor dared him to wit hdraw or walkout , promising to replace him wit h
counsel de oficio. During t he t rial, before t he prosecut ion called it s first wit ness, pet it ioner t hrough counsel once
again reit erat ed his object ion to going to t rial wit hout preliminary invest igat ion: pet it ioner's counsel made of
record his "continuing objection." 29 Pet it ioner had prompt ly gone to t he appellat e court on certiorari and
prohibit ion to challenge t he lawfulness of t he procedure he was being forced to undergo and t he lawfulness of
his det ent ion.30 If he did not walk out on t he t rial, and if he cross-examined t he prosecut ion's wit nesses, it was
because he was ext remely loat h to be represent ed by counsel de oficio select ed by t he t rial judge, and to run t he
risk of being held to have waived also his right to use what is frequent ly t he only t est of t rut h in t he judicial
process.

In respect of t he mat t er of bail, we similarly believe and so hold t hat pet it ioner remains ent it led to be released
on bail as a mat t er of right . Should t he evidence already of record concerning pet it ioner's guilt be, in t he
reasonable belief of t he Prosecutor, st rong, t he Prosecutor may move in t he t rial court for cancellat ion of
pet it ioner's bail. It would t hen be up to t he t rial court , aft er a careful and object ive assessment of t he evidence
on record, to grant or deny t he mot ion for cancellat ion of bail.

To reach any ot her conclusions here, t hat is, to hold t hat pet it ioner's right s to a preliminary invest igat ion and to
bail were effect ively oblit erat ed by evidence subsequent ly admit t ed into t he record would be to legit imize t he
deprivat ion of due process and to permit t he Government to benefit from it s own wrong or culpable omission
and effect ively to dilut e import ant right s of accused persons well-nigh to t he vanishing point . It may be t hat to
require t he St at e to accord pet it ioner his right s to a preliminary invest igat ion and to bail at t his point , could t urn
out ult imat ely to be largely a ceremonial exercise. But t he Court is not compelled to speculat e. And, in any case,
it would not be idle ceremony; rat her, it would be a celebrat ion by t he St at e of t he right s and libert ies of it s own
people and a re-affirmat ion of it s obligat ion and det erminat ion to respect t hose right s and libert ies.

ACCORDINGLY, t he Court resolved to GRANT t he Pet it ion for Review on Certiorari. T he Order of t he t rial court
dat ed 17 July 1991 is hereby SET ASIDE and NULLIFIED, and t he Decision of t he Court of Appeals dat ed 23
Sept ember 1991 hereby REVERSED.

T he Office of t he Provincial Prosecutor is hereby ORDERED to conduct fort hwit h a preliminary invest igat ion of
t he charge of murder against pet it ioner Go, and to complet e such preliminary invest igat ion wit hin a period of
fift een (15) days from commencement t hereof. T he t rial on t he merit s of t he criminal case in t he Regional Trial
Court shall be SUSPENDED to await t he conclusion of t he preliminary invest igat ion.

Meant ime, pet it ioner is hereby ORDERED released fort hwit h upon post ing of a cash bail bond of One Hundred
T housand Pesos (P100,000.00). T his release shall be wit hout prejudice to any lawful order t hat t he t rial court
may issue, should t he Office of t he Provincial Prosecutor move for cancellat ion of bail at t he conclusion of t he
preliminary invest igat ion.

No pronouncement as to cost s. T his Decision is immediat ely executory.

SO ORDERED.

Narvasa, C.J., Bidin, Medialdea, Romero and Nocon, JJ., concur.

T he abolit ion of t he deat h penalt y did not make t he right to bail absolut e, for persons charged wit h offenses
punishable by reclusion perpetua, when evidence of guilt is st rong, are not bailable (Sec. 3, Art . III, 1987
Const it ut ion). In People vs. Dacudao, 170 SCRA 489, we called down t he t rial court for having grant ed t he mot ion
for bail in a murder case wit hout any hearing and wit hout giving t he prosecut ion an opport unit y to comment or
file object ions t hereto.

Similarly t his Court held in People vs. Bocar, 27 SCRA 512:

. . . due process also demands that in the matter of bail the prosecution should be afforded full opportunity
to present proof of the guilt of the accused. T hus, if it were t rue t hat t he prosecut ion in t his case was
deprived of t he right to present it s evidence against t he bail pet it ion, or t hat t he order grant ing
such pet it ion was issued upon incomplet e evidence, t hen t he issuance of t he order would really
const it ut e abuse of discret ion t hat would call for t he remedy of certiorari. (Emphasis supplied.)

T he pet it ioner may not be released pending t he hearing of his pet it ion for bail for it would be incongruous to
grant bail to one who is not in t he custody of t he law (Feliciano vs. Pasicolan, 2 SCRA 888).

I respect fully t ake except ion to t he st at ement s in t he ponencia t hat t he "pet it ioner was not arrest ed at all" (p.
12) and t hat "pet it ioner had not been arrest ed, wit h or wit hout a warrant " (p. 130). Arrest is t he t aking of t he
person into t he custody in order t hat he may be bound to answer for t he commission of an offense (Sec. 1, Rule
113, Rules of Court ). An arrest is made by an act ual rest raint of t he person to be arrest ed, or by his submission
to t he custody of t he person making t he arrest (Sec. 2, Rule 113, Rules of Court ). When Go walked into t he San
Juan Police St at ion on July 8, 1991, and placed himself at t he disposal of t he police aut horit ies who clamped
him in jail aft er he was ident ified by an eyewit ness as t he person who shot Maguan, he was act ually and
effect ively arrest ed. His filing of a pet it ion to be released on bail was a waiver of any irregularit y at t ending his
arrest and estops him from quest ioning it s validit y (Callant a vs. Villanueva, 77 SCRA 377; Bagcal vs. Villaraza,
120 SCRA 525).

I vot e to dismiss t he pet it ion and affirm t he t rial court 's order of July 17, 1991.

Melencio-Herrera, Paras, Padilla, Regalado and Davide, Jr., JJ., concur.

Footnotes

1 Annex "A" of Pet it ion; Rollo, pp. 29-32.

2 Rollo, p. 28.

3 Annex "B" of Pet it ion, Rollo, pp. 33-34.

4 Annex "C" of Pet it ion, Rollo, pp. 35-43.

5 Annex "D" of Pet it ion, Rollo, pp. 44-45.

6 Annexes "E" and "E-1" of Pet it ion, Rollo, pp. 46-48.

7 Annex "F" of Pet it ion, Rollo, p. 49.

8 Annex "G" of Pet it ion, Rollo, pp. 50-51.

9 Annex "G-1" of Pet it ion, Rollo, p. 52.

10 Annex "H" of Pet it ion, Rollo, pp. 54-55.

11 Annex "J" of Pet it ion, Rollo, pp. 57-58

12 Annex "K" of Pet it ion, Rollo, pp. 59-66.

13 Annex "K-1" of Pet it ion, Rollo, pp. 67-68.

14 Annex "N" of Pet it ion, Rollo, pp. 109-120.

15 Annex "A" of Comment , Rollo, p. 154.

16 G.R. No. 86332.