THIRD DIVISION
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bernadette l. adasa, petitioner, - versus - cecille s.
abalos,
Respondent. |
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G.R. No. 168617 Present: YNARES-SANTIAGO, J., Chairperson, AUSTRIA-MARTINEZ,
CALLEJO, SR., CHICO-NAZARIO, and NACHURA,*
JJ. Promulgated: |
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CHICO-NAZARIO, J.:
This Petition for Review under Rule
45 of the Rules of Court, filed by petitioner Bernadette L. Adasa,
seeks to nullify and set aside the
The instant case emanated from the two
complaints-affidavits filed by respondent Cecille S. Abalos on
Respondent alleged in the
complaints-affidavits that petitioner, through deceit, received and encashed two checks issued in the name of respondent
without respondent’s knowledge and consent and that despite repeated demands by
the latter, petitioner failed and refused to pay the proceeds of the checks.
On
In her Supplemental Affidavit filed on
29 March 2001, petitioner, however, recanted and alleged instead that it was a
certain Bebie Correa who received the two checks which
are the subject matter of the complaints and encashed
the same; and that said Bebie Correa left the country
after misappropriating the proceeds of the checks.
On
Consequently, two separate criminal
cases were filed against petitioner docketed as Criminal Cases No. 8781 and No.
8782, raffled to Branches 4 and 5,
This instant petition pertains only to
Criminal Case No. 8782.
On
After conducting the reinvestigation,
the Office of the City Prosecutor of Iligan City issued
a resolution dated
Meanwhile, during her arraignment on
Dissatisfied with the finding of the
Office of the City Prosecutor of Iligan City, petitioner
filed a Petition for Review before the DOJ on
In a Resolution dated
The said DOJ resolution prompted the
Office of the City Prosecutor of Iligan City to file
a “Motion to Withdraw Information” on
On 26 July 2002, respondent filed a
motion for reconsideration of said resolution of the DOJ arguing that the DOJ
should have dismissed outright the petition for review since Section 7 of DOJ
Circular No. 70 mandates that when an accused has already been arraigned and
the aggrieved party files a petition for review before the DOJ, the Secretary
of Justice cannot, and should not take cognizance of the petition, or even give
due course thereto, but instead deny it outright. Respondent claimed Section 12 thereof mentions
arraignment as one of the grounds for the dismissal of the petition for review
before the DOJ.
In a resolution dated
Meanwhile, on
Aggrieved by the resolution of the DOJ,
respondent filed a Petition for Certiorari
before the Court of Appeals. Respondent
raised the following issues before the appellate court:
1. Whether or not the Department of Justice gravely
abused its discretion in giving due course to petitioner’s petition for review
despite its having been filed after the latter had already been arraigned;
2. Whether or not there is probable cause that the
crime of estafa has been committed and that
petitioner is probably guilty thereof;
3. Whether or not the petition before the Court of
Appeals has been rendered moot and academic by the order of the Regional Trial
Court dismissing Criminal Case No. 8782.
The Court of Appeals in a Decision
dated
In resolving the first issue, the
Court of Appeals, relying heavily on Section 7 of DOJ Circular No. 70 which states
“[i]f an information has been filed in court pursuant
to the appealed resolution, the petition shall not be given due course if the
accused had already been arraigned,” ruled that since petitioner was arraigned
before she filed the petition for review with the DOJ, it was imperative for
the DOJ to dismiss such petition. It
added that when petitioner pleaded to the charge, she was deemed to have waived
her right to reinvestigation and right to question any irregularity that
surrounds it.
Anent the second issue, the Court of
Appeals declared that the existence of probable cause or the lack of it, cannot
be dealt with by it since factual issues are not proper subjects of a Petition
for Certiorari.
In disposing of the last issue, the
Court of Appeals held that the order of the trial court dismissing the subject
criminal case pursuant to the assailed resolutions of the DOJ did not render
the petition moot and academic. It said
that since the trial court’s order relied solely on the resolutions of the DOJ,
said order is void as it violated the rule which enjoins the trial court to
assess the evidence presented before it in a motion to dismiss and not to rely
solely on the prosecutor’s averment that the Secretary of Justice had
recommended the dismissal of the case.
Dissatisfied by the Court of Appeals’
ruling, petitioner filed a Motion for Reconsideration setting forth the
following grounds:
1. that the over-all language of Sections 7 and 12 of
Department Circular No. 70 is permissive and directory such that the Secretary
of Justice may entertain an appeal despite the fact that the accused had been
arraigned;
2. that the contemporaneous construction by the
Secretary of Justice should be given great weight and respect;
3. that Section 7 of the Circular applies only to
resolutions rendered pursuant to a preliminary investigation, not on a
reinvestigation;
4. that the trial court’s order of dismissal of the
criminal case has rendered the instant petition moot and academic;
5. that her arraignment was null and void it being
conducted despite her protestations; and
6. that despite her being arraigned, the supposed
waiver of her right to preliminary investigation has been nullified or recalled
by virtue of the trial court’s order of reinvestigation.[4]
The Court of Appeals stood firm by
its decision. This time, however, it tried
to construe Section 7 side by side with Section 12 of DOJ Circular No. 70 and
attempted to reconcile these two provisions. According to the appellate court,
the phrase “shall not” in paragraph two, first sentence of Section 7 of subject
circular, to wit:
If an information has been filed in court pursuant to
the appealed resolution, the petition shall not be given due course if the
accused had already been arraigned.
x x x. (Emphasis supplied.)
employed in the circular denotes a
positive prohibition. Applying the
principle in statutory construction - that when a statute or provision contains
words of positive prohibition, such as “shall not,” “cannot,” or “ought not” or
which is couched in negative terms importing that the act shall not be done
otherwise than designated, that statute or provision is mandatory, thus
rendering the provision mandatory – it opined that the subject provision simply
means that the Secretary of Justice has no other course of action but to deny
or dismiss a petition before him when arraignment of an accused had already
taken place prior to the filing of the petition for review.
On the other hand, reading Section 12
of the same circular which reads:
The Secretary may reverse, affirm or modify the
appealed resolution. He may, motu proprio or upon motion,
dismiss the petition for review on any of the following grounds:
x x x x
(e)
That the accused had already been arraigned when the appeal was taken; x x x.
the Court of Appeals opined that the
permissive word “may” in Section 12 would seem to imply that the Secretary of
Justice has discretion to entertain an appeal notwithstanding the fact that the
accused has been arraigned. This
provision should not be treated separately, but should be read in relation to
Section 7. The two provisions, taken
together, simply meant that when an accused was already arraigned when the
aggrieved party files a petition for review, the Secretary of Justice cannot,
and should not take cognizance of the petition, or even give due course
thereto, but instead dismiss or deny it outright. The appellate court added that the word “may”
in Section 12 should be read as “shall” or “must” since such construction is
absolutely necessary to give effect to the apparent intention of the rule as
gathered from the context.
As to the contemporaneous
construction of the Secretary of Justice, the Court of Appeals stated that the
same should not be given weight since it was erroneous.
Anent petitioner’s argument that
Section 7 of the questioned circular applies only to original resolutions that
brought about the filing of the corresponding informations
in court, but not to resolutions rendered pursuant to a motion for
reinvestigation, the appellate court simply brushed aside such contention as
having no basis in the circular questioned.
It also rejected petitioner’s
protestation that her arraignment was forced upon her since she failed to
present any evidence to substantiate the same.
It is petitioner’s contention that despite
her being arraigned, the supposed waiver of her right to preliminary investigation
has been nullified by virtue of the trial court’s order or reinvestigation. On this score, the Court of Appeals rebuffed
such argument stating that there was no “supposed waiver of preliminary
investigation” to speak of for the reason that petitioner had actually
undergone preliminary investigation.
Petitioner remained unconvinced with
the explanations of the Court of Appeals.
Hence, the instant petition.
Again, petitioner contends that the DOJ
can give due course to an appeal or petition for review despite its having been
filed after the accused had already been arraigned. It asserts that the fact of arraignment of an
accused before the filing of an appeal or petition for review before the DOJ “is
not at all relevant” as the DOJ can still take cognizance of the appeal or Petition
for Review before it. In support of this
contention, petitioner set her sights on the ruling of this Court in Crespo v. Mogul,[5] to wit:
The rule therefore in this jurisdiction is that once a
complaint or information is filed in Court any disposition of the case as to its
dismissal or the conviction or acquittal of the accused rests in the sound
discretion of the Court. Although the
fiscal retains the direction and control of the prosecution of criminal cases even
while the case is already in Court he cannot impose his opinion on the trial
court. The Court is the best and sole
judge on what to do with the case before it.
The determination of the case is within its exclusive jurisdiction and
competence. A motion to dismiss the case
filed by the fiscal should be addressed to the Court who has the option to
grant or deny the same. It does not matter if this is done before
or after the arraignment of the accused or that the motion was filed after a
reinvestigation or upon instructions of the Secretary of Justice who reviewed
the records of the investigation. (Emphasis
supplied.)
To bolster her position, petitioner
cites Roberts v. Court of Appeals,[6]
which stated:
There is
nothing in Crespo vs. Mogul which bars the DOJ from
taking cognizance of an appeal, by way of a petition for review, by an accused
in a criminal case from an unfavorable ruling of the investigating prosecutor. It merely
advised the DOJ to, “as far as practicable, refrain from entertaining a
petition for review or appeal from the action of the fiscal, when the complaint
or information has already been filed in Court.
x x x. (Emphasis supplied.)
Petitioner likewise invokes Marcelo v. Court of Appeals[7]
where this Court declared:
Nothing in the said ruling forecloses the power or
authority of the Secretary of Justice to review resolutions of his subordinates
in criminal cases. The Secretary of
Justice is only enjoined to refrain as far as practicable from entertaining a
petition for review or appeal from the action of the prosecutor once a complaint
or information is filed in court. In any
case, the grant of a motion to dismiss, which the prosecution may file after
the Secretary of Justice reverses an appealed resolution, is subject to the
discretion of the court.
The Court is unconvinced.
A cursory reading of Crespo v. Mogul reveals that the ruling
therein does not concern the issue of an appeal or petition for review before
the DOJ after arraignment. Verily, the pronouncement
therein has to do with the filing of a motion to dismiss and the court’s
discretion to deny or grant the same. As
correctly pointed out by respondent, the emphasized portion in the Crespo ruling is
a parcel of the entire paragraph which relates to the duty and jurisdiction of
the trial court to determine for itself whether or not to dismiss a case before
it, and which states that such duty comes into play regardless of whether such
motion is filed before or after arraignment and upon whose instructions. The allusion to the Secretary of Justice as
reviewing the records of investigation and giving instructions for the filing
of a motion to dismiss in the cited ruling does not take into consideration of whether
the appeal or petition before the Secretary of Justice was filed after
arraignment. Significantly, in the Crespo case, the
accused had not yet been arraigned when the appeal or petition for review was
filed before the DOJ. Undoubtedly,
petitioner’s reliance on the said case is misplaced.
Also unavailing is petitioner’s
invocation of the cases of Roberts v.
Court of Appeals and Marcelo v. Court
of Appeals. As in Crespo v. Mogul, neither Roberts v. Court of Appeals nor Marcelo
v. Court of Appeals took into account of whether the appeal or petition
before the Secretary of Justice was filed after arraignment. Just like in the Crespo case, the accused in both Roberts v. Court of Appeals and Marcelo v. Court of Appeals had not yet
been arraigned when the appeal or petition for review was filed before the DOJ.
Moreover, petitioner asserts that the
Court of Appeals’ interpretation of the provisions of DOJ Circular No. 70
violated three basic rules in statutory construction. First, the rule that the provision that
appears last in the order of position in the rule or regulation must prevail. Second, the rule that the contemporaneous
construction of a statute or regulation by the officers who enforce it should
be given weight. Third, petitioner
lifted a portion from Agpalo’s Statutory Construction[8]
where the word “shall” had been construed as a permissive, and not a mandatory
language.
The all too-familiar rule in statutory
construction, in this case, an administrative rule[9] of
procedure, is that when a statute or rule is clear and unambiguous,
interpretation need not be resorted to.[10] Since Section 7 of the subject circular
clearly and categorically directs the DOJ to dismiss outright an appeal or a
petition for review filed after arraignment, no resort to interpretation is
necessary.
Petitioner’s reliance to the
statutory principle that “the last in order of position in the rule or
regulation must prevail” is not applicable.
In addition to the fact that Section 7 of DOJ Circular No. 70 needs no
construction, the cited principle cannot apply because, as correctly observed
by the Court of Appeals, there is no irreconcilable conflict between Section 7
and Section 12 of DOJ Circular No. 70.
Section 7 of the circular provides:
SECTION 7. Action on the petition. – The Secretary of
Justice may dismiss the petition outright if he finds the same to be patently
without merit or manifestly intended for delay, or when the issues raised
therein are too unsubstantial to require consideration. If
an information has been filed in court pursuant to the appealed resolution, the
petition shall not be given due course if the accused had already been
arraigned. Any arraignment made after the filing of the
petition shall not bar the Secretary of Justice from exercising his power of
review. (Italics supplied.)
On the other hand, Section 12 of the
same circular states:
SECTION 12. Disposition of the Appeal. – The Secretary
may reverse, affirm or modify the appealed resolution. He may, motu proprio or upon motion, dismiss
the petition for review on any of the following grounds:
(a) That the petition was filed beyond the period
prescribed in Section 3 hereof;
(b) That the procedure or any of the requirements
herein provided has not been complied with;
(c) That there is no showing of any reversible error;
(d) That the appealed resolution is interlocutory in
nature, except when it suspends the proceedings based on the alleged existence
of a prejudicial question;
(e) That the
accused had already been arraigned when the appeal was taken;
(f) That the offense has already prescribed; and
(g) That other legal or factual grounds exist to
warrant a dismissal. (Emphases
supplied.)
It is noteworthy that the principle
cited by petitioner reveals that, to find application, the same presupposes
that “one part of the statute cannot be reconciled or harmonized with another
part without nullifying one in favor of the other.” In the instant case, however, Section 7 is
neither contradictory nor irreconcilable with Section 12. As can be seen above, Section 7 pertains to
the action on the petition that the DOJ must take, while Section 12 enumerates
the options the DOJ has with regard to the disposition of a petition for review
or of an appeal.
As aptly observed by respondent, Section
7 specifically applies to a situation on what the DOJ must do when confronted
with an appeal or a petition for review that is either clearly without merit,
manifestly intended to delay, or filed after an accused has already been
arraigned, i.e., he may dismiss it
outright if it is patently without merit or manifestly intended to delay, or,
if it was filed after the acccused has already been
arraigned, the Secretary shall not give it due course.
Section 12 applies generally to the
disposition of an appeal. Under said
section, the DOJ may take any of four actions when disposing an appeal, namely:
1. reverse the appealed resolution;
2. modify the appealed resolution;
3. affirm the appealed resolution;
4. dismiss the appeal altogether, depending on the
circumstances and incidents attendant thereto.
As to the dismissal of a petition for
review or an appeal, the grounds are provided for in Section 12 and,
consequently, the DOJ must evaluate the pertinent circumstances and the facts
of the case in order to determine which ground or grounds shall apply.
Thus, when an accused has already
been arraigned, the DOJ must not give the appeal or petition for review due
course and must dismiss the same. This is bolstered by the fact that
arraignment of the accused prior to the filing of the appeal or petition for
review is set forth as one of the grounds for its dismissal. Therefore, in such instance, the DOJ, noting
that the arraignment of an accused prior to the filing of an appeal or petition
for review is a ground for dismissal under Section 12, must go back to Section
7 and act upon as mandated therein. In other
words, the DOJ must not give due course to, and must necessarily dismiss, the
appeal.
Likewise, petitioner’s reliance on
the principle of contemporary construction, i.e.,
the DOJ is not precluded from entertaining appeals where the accused had
already been arraigned, because it exercises discretionary power, and because it
promulgated itself the circular in question, is unpersuasive. As aptly ratiocinated by the Court of
Appeals:
True indeed is the principle that a contemporaneous
interpretation or construction by the officers charged with the enforcement of
the rules and regulations it promulgated is entitled to great weight by the
court in the latter’s construction of such rules and regulations. That does not, however, make such a
construction necessarily controlling or binding. For equally settled is the rule that courts
may disregard contemporaneous construction in instances where the law or rule
construed possesses no ambiguity, where the construction is clearly erroneous,
where strong reason to the contrary exists, and where the court has previously
given the statute a different interpretation.
If through misapprehension of law or a rule an
executive or administrative officer called upon to implement it has erroneously
applied or executed it, the error may be corrected when the true construction
is ascertained. If a contemporaneous construction is found to be erroneous, the
same must be declared null and void. Such principle should be as it is applied in
the case at bar.[11]
Petitioner’s posture on a supposed
exception to the mandatory import of the word “shall” is misplaced. It is petitioner’s view that the language of
Section 12 is permissive and therefore the mandate in Section 7 has been
transformed into a matter within the discretion of the DOJ. To support this stance, petitioner cites a
portion of Agpalo’s Statutory Construction which
reads:
For instance, the word “shall” in Section 2 of
Republic Act 304 which states that “banks or other financial institutions owned
or controlled by the Government shall, subject to availability of funds xxx,
accept at a discount at not more than two per centum for ten years such (backpay) certificate” implies not a mandatory, but a
discretionary, meaning because of the phrase “subject to availability of funds.” Similarly, the word “shall” in the provision
to the effect that a corporation violating the corporation law “shall, upon
such violation being proved, be dissolved by quo warranto proceedings” has been
construed as “may.”[12]
After a judicious scrutiny of the
cited passage, it becomes apparent that the same is not applicable to the
provision in question. In the cited
passage, the word “shall” departed from its mandatory import connotation
because it was connected to certain provisos/conditions: “subject to the availability of funds” and
“upon such violation being proved.” No
such proviso/condition, however, can be found in Section 7 of the subject
circular. Hence, the word “shall”
retains its mandatory import.
At this juncture, the Court of
Appeals’ disquisition in this matter is enlightening:
Indeed, if the intent of Department Circular No. 70
were to give the Secretary of Justice a discretionary power to dismiss or to
entertain a petition for review despite its being outrightly
dismissible, such as when the accused has already been arraigned, or where the
crime the accused is being charged with has already prescribed, or there is no
reversible error that has been committed, or that there are legal or factual
grounds warranting dismissal, the result would not only be incongruous but also
irrational and even unjust. For then,
the action of the Secretary of Justice of giving due course to the petition
would serve no purpose and would only allow a great waste of time. Moreover, to give the second sentence of
Section 12 in relation to its paragraph (e) a directory application would not
only subvert the avowed objectives of the Circular, that is, for the
expeditious and efficient administration of justice, but would also render its
other mandatory provisions - Sections 3, 5, 6 and 7, nugatory.[13]
In her steadfast effort to champion
her case, petitioner contends that the issue as to whether the DOJ rightfully
entertained the instant case, despite the arraignment of the accused prior to
its filing, has been rendered moot and academic with the order of dismissal by
the trial court dated
It must be stressed that the trial
court dismissed the case precisely because of the Resolutions of the DOJ after
it had, in grave abuse of its discretion, took cognizance of the petition for
review filed by petitioner. Having been
rendered in grave abuse of its discretion, the Resolutions of the DOJ are
void. As the order of dismissal of the
trial court was made pursuant to the void Resolutions of the DOJ, said order
was likewise void. The rule in this
jurisdiction is that a void judgment is a complete nullity and without legal
effect, and that all proceedings or actions founded thereon are themselves
regarded as invalid and ineffective for any purpose.[14] That respondent did not file a motion for
reconsideration or appeal from the dismissal order of the trial court is of no
moment. Since the dismissal was void,
there was nothing for respondent to oppose.
Petitioner further asserts that
Section 7 of DOJ Circular No. 70 applies only to appeals from original
resolution of the City Prosecutor and does not apply in the instant case where
an appeal is interposed by petitioner from the Resolution of the City Prosecutor
denying her motion for reinvestigation.
This claim is baseless.
A reading of Section 7 discloses that
there is no qualification given by the same provision to limit its application
to appeals from original resolutions and not to resolutions on reinvestigation. Hence, the rule stating that “when the law
does not distinguish, we must not distinguish”[15]
finds application in this regard.
Petitioner asserts that her
arraignment was null and void as the same was improvidently conducted. Again, this contention is without merit. Records reveal that petitioner’s arraignment
was without any restriction, condition or reservation.[16] In fact she was assisted by her counsels
Atty. Arthur Abudiente and Atty. Maglinao
when she pleaded to the charge.[17]
Moreover, the settled rule is that
when an accused pleads to the charge, he is deemed to have waived the right to
preliminary investigation and the right to question any irregularity that
surrounds it.[18] This
precept is also applicable in cases of reinvestigation as well as in cases of
review of such reinvestigation. In this
case, when petitioner unconditionally pleaded to the charge, she effectively
waived the reinvestigation of the case by the prosecutor as well as the right
to appeal the result thereof to the DOJ Secretary. Thus, with the arraignment of the petitioner,
the DOJ Secretary can no longer entertain the appeal or petition for review because
petitioner had already waived or abandoned the same.
Lastly, while there is authority[19]
permitting the Court to make its own determination of probable cause, such,
however, cannot be made applicable in the instant case. As earlier stated, the
arraignment of petitioner constitutes a waiver of her right to preliminary
investigation or reinvestigation. Such
waiver is tantamount to a finding of probable cause. For this reason, there is no need for the
Court to determine the existence or non-existence of probable cause.
Besides, under Rule 45 of the Rules
of Court, only questions of law may be raised in, and be subject of, a petition
for review on certiorari since this
Court is not a trier of facts. This being the case, this Court cannot review
the evidence adduced by the parties before the prosecutor on the issue of the
absence or presence of probable cause.[20]
WHEREFORE, the
petition is DENIED. The Decision of the Court of Appeals dated
|
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MINITA V. CHICO-NAZARIOAssociate Justice |
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson
Associate Justice Associate Justice
On Leave
ANTONIO EDUARDO B. NACHURA
Associate Justice
ATTESTATION
I attest that the conclusions in the above
Decision were reached in consultation before the case was assigned to the
writer of the opinion of the Court’s Division.
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson, Third Division
CERTIFICATION
Pursuant to Section 13, Article VIII
of the Constitution, and the Division Chairperson’s Attestation, it is hereby
certified that the conclusions in the above Decision were reached in
consultation before the case was assigned to the writer of the opinion of the
Court’s Division.
REYNATO S.
PUNO
Chief Justice
* On leave.
[1] Penned by Associate Justice Edgardo A. Camello with Associate
Justices Estela Perlas M. Bernabe and Arturo G. Tayag,
concurring. Rollo, pp. 40-48.
[2]
[3] Records, pp. 64-65.
[4]
[5] G.R. No. L-53373,
[6] G.R. No. 113930,
[7] G.R. No. 106695,
[8] Agpalo, Statutory Construction (1990), pp. 240-241, citing Diokno v. Rehabilitation Finance Corporation, 91 Phil. 608, 611 (1952) and Government v. El Hogar Filipino, 50 Phil. 399 (1927).
[9] When an administrative agency promulgates rules and regulations, it “makes” a new law with the force and effect of a valid law. (Victorias Milling Co., Inc. v. Social Security Commission, 114 Phil. 555, 558 [1962].)
[10] Rizal Commercial Banking Corporation v. Intermediate Appellate Court,
G.R. No. 74851, 9 December 1999, 320 SCRA 279, 289.
[11] Rollo, p. 58.
[12] Supra note 5.
[13] Rollo,
p. 57.
[14] Gorion v. Regional Trial Court of Cebu, Branch 17, G.R.
No. 102131,
[15] Philippine Free Press, Inc. v. Court of Appeals, G.R. No. 132864, 24 October 2005, 473 SCRA 639, 662.
[16] Records, pp. 64-65.
[17]
[18] Kuizon v. Desierto, G.R. Nos. 140619-24, 9 March 2000, 354 SCRA 158, 176-177; Gonzales v. Court of Appeals, 343 Phil. 297, 304-305 (1997); People v. Baluran, 143 Phil. 36, 44 (1981).
[19] Ark
Travel Express, Inc. v. Abrogar, G.R. No. 137010,
[20] Chan
v. Court of Appeals, G.R. No. 159922,