CRIMPRO RULE 112

Title G.R. No. 101837

Go vs CA Date: Feb 11, 1992
Ponente: ROMERO, J p:
ROLITO GO Y TAMBUNTING, petitioner THE COURT OF APPEALS, THE HON. BENJAMIN V. PELAYO,
PRESIDING JUDGE, BRANCH 168, REGIONAL TRIAL COURT,
NCJR, PASIG, METRO MANILA and THE PEOPLE OF THE
PHILIPPINES, respondents
This is a Motion for Reconsideration of this Court's Resolution dated September 23, 1992 denying petitioner's Petition and
affirming the Decision and Resolution promulgated on March 9, 1992 and June 26, 1992, respectively, of the Court of Appeals
in CA-G.R. SP No. 26305.
FACTS

Petitioner, while traveling in the wrong direction on a one-way street, almost had a collision with another vehicle.
Petitioner thereafter got out of his car, shot the driver of the other vehicle, and drove off. An eyewitness of the
incident was able to take down petitioner’s plate number and reported the same to the police, who subsequently
ordered a manhunt for petitioner.

Accordingly, on 11 July 1991, the Prosecutor, instead of filing an information for frustrated homicide, filed an
information for murder before the Regional Trial Court. No bail was recommended. At the bottom of the
information, the Prosecutor certified that no preliminary investigation had been conducted because the accused did
not execute and sign a waiver of the provisions of Article 125 of the Revised Penal Code.

11 July 1991, counsel for petitioner filed with the Prosecutor an omnibus motion for immediate release and proper
preliminary investigation, alleging that the warrantless arrest of petitioner was unlawful and that no preliminary
investigation had been conducted before the information was filed. Petitioner also prayed that he be released on
recognizance or on bail. Provincial Prosecutor Mauro Castro, acting on the omnibus motion, wrote on the last page
of the motion itself that he interposed no objection to petitioner being granted provisional liberty on a cash bond of
P100,000.00.

On 12 July 1991, petitioner filed an urgent ex-parte motion for special raffle in order to expedite action on the
Prosecutor's bail recommendation. The case was raffled to the sala of respondent Judge, who, on the same date,
approved the cash bond posted by petitioner and ordered his release. Petitioner was in fact released that same day.

On 16 July 1991, the Prosecutor filed with the Regional Trial Court a motion for leave to conduct preliminary
investigation and prayed that in the meantime all proceedings in the court be suspended.

Also on 16 July 1991, the trial court issued an Order granting leave to conduct preliminary investigation and
cancelling the arraignment set for 15 August 1991 until after the prosecution shall have concluded its preliminary
investigation.

On 17 July 1991, however, respondent Judge motu proprio issued an Order, embodying the following: (1) the 12 July
1991 Order which granted bail was recalled; petitioner was given 48 hours from receipt of the Order to surrender
himself; (2) the 16 July 1991 Order which granted leave to the prosecutor to conduct preliminary investigation was
recalled and cancelled; (3) petitioner's omnibus motion for immediate release and preliminary investigation dated
11 July 1991 was treated as a petition for bail and set for hearing on 23 July 1991.

Petitioner’s contention:
Upon omnibus motion for immediate release on recognizance or on bail and proper preliminary investigation on the
ground that his warrantless arrest was unlawful and no preliminary investigation was conducted before the
information was filed, which is violative of his rights.

Hence, the petitioner filed this present petition for review on certiorari before the Supreme Court.

ISSUE/S
(1) Whether or Not warrantless arrest of petitioner was lawful.
(2) Whether or Not petitioner effectively waived his right to preliminary investigation.
RATIO

The general rule on arrest provides that the same is legitimate if effected with a valid warrant. However, there are instances
specifically enumerated under the law when a warrantless arrest may be considered lawful. However, the warrantless arrest
of herein petitioner Rolito Go does not fall within the terms of said rule.

SC do not believe that the warrantees "arrest" or detention of petitioner in the instant case falls within the terms of Section 5
of Rule 113 of the 1985 Rules on Criminal Procedure which provides as follows:

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

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit
an offense;

(b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person
to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is
serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one
confinement to another.

In cases falling under paragraphs (a) and (b) hereof, the person arrested without a warrant shall be forthwith delivered to the
nearest police station or jail, and he shall be proceed against in accordance with Rule 112, Section 7.

The police were not present at the time of the commission of the offense, neither do they have personal knowledge on the
crime to be committed or has been committed not to mention the fact that petitioner was not a prisoner who has escaped
from the penal institution. In view of the above, the allegation of the prosecution that petitioner needs to sign a waiver of the
provisions of Article 125 of the Revised Penal Code before a preliminary investigation may be conducted is baseless. In this
connection, petitioner has all the right to ask for a preliminary investigation to determine whether is probable cause that a
crime has been committed and that petitioner is probably guilty thereof as well asto prevent him from the hassles, anxiety
and aggravation brought by a criminal proceeding. This reason of the accused is substantial, which he should not be deprived
of.

On the other hand, petitioner did not waive his right to have a preliminary investigation contrary to the prosecutor's claim.
The right to preliminary investigation is deemed waived when the accused fails to invoke it before or at the time of entering a
pleas at arraignment. The facts of the case show that petitioner insisted on his right to preliminary investigation before his
arraignment and he, through his counsel denied answering questions before the court unless they were afforded the proper
preliminary investigation.

We believe and so hold that petitioner did not waive his right to a preliminary investigation. While that right is statutory
rather than constitutional in its fundament, since it has in fact been established by statute, it is a component part of due
process in criminal justice. The right to have a preliminary investigation conducted before being bound over to trial for a
criminal offense and hence formally at risk of incarceration or some other penalty, is not a mere formal or technical right; it is
a substantive right.

ACCORDINGLY, the Court resolved to GRANT the Petition for Review on Certiorari. The Order of the trial court dated 17 July
1991 is hereby SET ASIDE and NULLIFIED, and the Decision of the Court of Appeals dated 23 September 1991 hereby
REVERSED.
RULING
The Office of the Provincial Prosecutor is hereby ORDERED to conduct forthwith a preliminary investigation of the charge of
murder against petitioner Go, and to complete such preliminary investigation within a period of fifteen (15) days from
commencement thereof. The trial on the merits of the criminal case in the Regional Trial Court shall be SUSPENDED to await
the conclusion of the preliminary investigation.

Meantime, petitioner is hereby ORDERED released forthwith upon posting of a cash bail bond of One Hundred Thousand
Pesos (P100,000.00).
SO ORDERED
2S 2016-17 (MATABUENA)