THIRD DIVISION

AAA,* G.R. No. 171465

Petitioner,
Present:
- versus - Ynares-Santiago, J. (Chairperson),
Austria-Martinez,
Chico-Nazario, and
Nachura, JJ.
HON. ANTONIO A. CARBONELL,
in his capacity as Presiding Judge,
Branch 27, Regional Trial Court, Promulgated:
San Fernando City, La Union and
ENGR. JAIME O. ARZADON,
Respondents. June 8, 2007

x ---------------------------------------------------------------------------------------- x

DECISION
YNARES-SANTIAGO, J.:

[1] [2]
This petition for certiorari assails the December 16, 2005 Order of the Regional Trial
Court, Branch 27, San Fernando, La Union in Criminal Case No. 6983, dismissing the rape case
filed against private respondent Jaime O. Arzadon for lack of probable cause; and its February
[3]
3, 2006 Order denying petitioners motion for reconsideration.

Petitioner worked as a secretary at the Arzadon Automotive and Car Service Center from
February 28, 2001 to August 16, 2001. On May 27, 2001 at about 6:30 p.m., Arzadon asked her
to deliver a book to an office located at another building but when she returned to their office,
the lights had been turned off and the gate was closed. Nevertheless, she went inside to get her
handbag.

On her way out, she saw Arzadon standing beside a parked van holding a pipe. He told
her to go near him and upon reaching his side, he threatened her with the pipe and forced her to
lie on the pavement. He removed her pants and underwear, and inserted his penis into her
vagina. She wept and cried out for help but to no avail because there was nobody else in the
premises.

Petitioner did not report the incident because Arzadon threatened to kill her and her
family. But when she discovered that she was pregnant as a consequence of the rape, she
narrated the incident to her parents. On July 24, 2002, petitioner filed a complaint for rape
against Arzadon.

[4]
On September 16, 2002, Assistant City Prosecutor Imelda Cosalan issued a Resolution
finding probable cause and recommending the filing of an information for rape. Arzadon moved
for reconsideration and during the clarificatory hearing held on October 11, 2002, petitioner
testified before the investigating prosecutor. However, she failed to attend the next hearing
hence, the case was provisionally dismissed.

[5]
On March 5, 2003, petitioner filed another Affidavit-Complaint with a comprehensive
account of the alleged rape incident. The case was assigned to 2nd Assistant Provincial
Prosecutor Georgina Hidalgo. During the preliminary investigation, petitioner appeared for
[6]
clarificatory questioning. On June 11, 2003, the investigating prosecutor issued a Resolution
finding that a prima facie case of rape exists and recommending the filing of the information.

Arzadon moved for reconsideration and requested that a panel of prosecutors be constituted to
review the case. Thus, a panel of prosecutors was created and after the clarificatory questioning,
[7]
the panel issued on October 13, 2003 a Resolution finding probable cause and denying
Arzadons motion for reconsideration.
 [8]
An Information for rape was filed before the Regional Trial Court, Branch 27, San Fernando,
La Union on February 6, 2004, docketed as Criminal Case No. 6415. Thereafter, Arzadon filed
a Motion to Hold in Abeyance All Court Proceedings Including the Issuance of a Warrant of
[9]
Arrest and to Determine Probable Cause for the Purpose of Issuing a Warrant of Arrest. On
March 18, 2004, respondent Judge Antonio A. Carbonell granted the motion and directed
petitioner and her witnesses to take the witness stand for determination of probable cause.
Arzadon also appealed the Resolution of the panel of prosecutors finding probable cause
before the Department of Justice. On July 9, 2004, then Acting Secretary of Justice Merceditas
Gutierrez found no probable cause and directed the withdrawal of the Information in Criminal
[10]
Case No. 6415.

Upon motion for reconsideration by petitioner, however, Secretary of Justice Raul

[11]
Gonzales reversed the July 9, 2004 Resolution and issued another Resolution finding that
[12]
probable cause exists. Thus, a new Information for rape was filed against Arzadon docketed
as Criminal Case No. 6983.

Consequently, Arzadon filed an Urgent Motion for Judicial Determination of Probable Cause
[13]
for the Purpose of Issuing a Warrant of Arrest. In an Order dated August 11, 2005,
respondent Judge Carbonell granted the motion and directed petitioner and her witnesses to take
the witness stand.

Instead of taking the witness stand, petitioner filed a motion for reconsideration claiming
that the documentary evidence sufficiently established the existence of probable cause. Pending
[14]
resolution thereof, she likewise filed a petition with this Court for the transfer of venue of
Criminal Case No. 6983. The case was docketed as Administrative Matter No. 05-12-756-RTC
and entitled Re: Transfer of Venue of Criminal Case No. 6983, formerly Criminal Case No.
6415, from the Regional Trial Court, Branch 27, San Fernando City, La Union, to any Court in
Metro Manila.

[15]
In a Resolution dated January 18, 2006, the Court granted petitioners request for
transfer of venue. The case was raffled to the Regional Trial Court of Manila, Branch 25, and
docketed as Criminal Case No. 06-242289. However, the proceedings have been suspended
pending the resolution of this petition.

Meanwhile, on December 16, 2005, respondent Judge Carbonell issued the assailed Order
dismissing Criminal Case No. 6983 for lack of probable cause. Petitioners motion for
reconsideration was denied hence, this petition.

[16]
Petitioner raises the following issues:

RESPONDENT JUDGE ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO

LACK OF OR IN EXCESS OF JURISDICTION WHEN IT GRANTED THE MOTION FOR
DETERMINATION OF PROBABLE CAUSE FILED BY THE PRIVATE RESPONDENT AND
THE SUBSEQUENT DENIAL OF THE MOTION FOR RECONSIDERATION

II

RESPONDENT JUDGE COMMITTED FURTHER ACTS CONSTITUTING GRAVE ABUSE

OF DISCRETION AMOUNTING TO LACK OR IN EXCESS OF JURISDICTION WHEN IT
ORDERED THE COMPLAINANT AND WITNESSES TO TAKE THE STAND FOR THE
PURPOSE OF DETERMINING PROBABLE CAUSE

III

RESPONDENT JUDGE ACTED WITH GRAVE ABUSE OF DISCRETION WHEN HE

REFUSED TO INHIBIT FROM FURTHER HANDLING THE CASE DESPITE WHISPERS OF
DOUBT ON HIS BIAS AND PARTIALITY
IV

RESPONDENT JUDGE ACTED WITH GRAVE ABUSE OF DISCRETION WHEN IT ISSUED

THE ORDER OF FEBRUARY 3, 2006, DENYING THE MOTION FOR RECONSIDERATION,
DESPITE THE SUPREME COURT RESOLUTION OF JANUARY 18, 2006, GRANTING THE
TRANSFER OF VENUE
Petitioner contends that the judge is not required to personally examine the complainant and her
witnesses in satisfying himself of the existence of probable cause for the issuance of a warrant
of arrest. She argues that respondent Judge Carbonell should have taken into consideration the
documentary evidence as well as the transcript of stenographic notes which sufficiently
established the existence of probable cause.

Arzadon claims that the petition should be dismissed outright for being the wrong mode of
appeal, it appearing that the issues raised by petitioner properly fall under an action for
certiorari under Rule 65, and not Rule 45, of the Rules of Court.

[17]
Respondent Judge Carbonell argues in his Comment that the finding of probable
cause by the investigating prosecutor is not binding or obligatory, and that he was justified in
requiring petitioner and her witnesses to take the witness stand in order to determine probable
cause.

The issues for resolution are 1) whether the petition should be dismissed for being the
wrong mode of appeal; and 2) whether respondent Judge Carbonell acted with grave abuse of
discretion in dismissing Criminal Case No. 6983 for lack of probable cause.

The petition has merit.

A petition for review on certiorari under Rule 45 is distinct from a petition for certiorari
under Rule 65 in that the former brings up for review errors of judgment while the latter
concerns errors of jurisdiction or grave abuse of discretion amounting to lack or excess of
jurisdiction. Grave abuse of discretion is not an allowable ground under Rule 45. However, a
petition for review on certiorari under Rule 45 may be considered a petition for certiorari under
Rule 65 where it is alleged that the respondents abused their discretion in their questioned
[18]
actions, as in the instant case. While petitioner claims to have brought the instant action
under Rule 45, the grounds raised herein involve an alleged grave abuse of discretion on the
part of respondent Judge Carbonell. Accordingly, the Court shall treat the same as a petition for
certiorari under Rule 65.

However, we must point out the procedural error committed by petitioner in directly
filing the instant petition before this Court instead of the Court of Appeals, thereby violating the
principle of judicial hierarchy of courts. It is well-settled that although the Supreme Court,
Court of Appeals and the Regional Trial Courts have concurrent jurisdiction to issue writs of
certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunction, such
[19]
concurrence does not give the petitioner unrestricted freedom of choice of court forum. In
this case, however, the gravity of the offense charged and the length of time that has passed
since the filing of the complaint for rape, compel us to resolve the present controversy in order
[20]
to avoid further delay.

We thus proceed to the issue of whether respondent Judge Carbonell acted with grave
abuse of discretion in dismissing Criminal Case No. 6983 for lack of probable cause.

We rule in the affirmative.

Respondent Judge Carbonell dismissed Criminal Case No. 6983 for lack of probable
cause on the ground that petitioner and her witnesses failed to comply with his orders to take
the witness stand. Thus

In RESUME therefore, as indubitably borne out by the case record and considering that the
Private Prosecutor, despite several admonitions contumaciously nay contemptuously refused to
comply/obey this Courts Orders of March 18, 2004, August 11, 2005 and eight (8) other similar
Orders issued in open Court that directed the complainant/witnesses to take the witness stand to be
asked probing/clarificatory questions consonant with cited jurisprudential rulings of the Supreme
Court, this Court in the exercise of its discretion and sound judgment finds and so holds that NO
probable cause was established to warrant the issuance of an arrest order and the further
prosecution of the instant case.

Record also shows in no unclear terms that in all the scheduled hearings of the case, the
accused had always been present. A contrario, the private complainant failed to appear during the
last four (4) consecutive settings despite due notice without giving any explanation, which to the
mind of the Court may indicate an apparent lack of interest in the further prosecution of this case.
That failure may even be construed as a confirmation of the Defenses contention reflected in the
case record, that the only party interested in this case is the Private prosecutor, prodded by the
accuseds alleged hostile siblings to continue with the case.

WHEREFORE, premises considered, for utter lack of probable cause, the instant case is
[21]
hereby ordered DISMISSED.

He claims that under Section 2, Article III of the 1987 Constitution, no warrant of arrest shall
issue except upon probable cause to be determined personally by the judge after examination
under oath or affirmation of the complainant and the witnesses he may produce.

[22]
However, in the leading case of Soliven v. Makasiar, the Court explained that this
constitutional provision does not mandatorily require the judge to personally examine the
complainant and her witnesses. Instead, he may opt to personally evaluate the report and
supporting documents submitted by the prosecutor or he may disregard the prosecutors report
and require the submission of supporting affidavits of witnesses. Thus:

The addition of the word personally after the word determined and the deletion of the grant
of authority by the 1973 Constitution to issue warrants to other responsible officers as may be
authorized by law, has apparently convinced petitioner Beltran that the Constitution now requires
the judge to personally examine the complainant and his witnesses in his determination of probable
cause for the issuance of warrants of arrest. This is not an accurate interpretation.

What the Constitution underscores is the exclusive and personal responsibility of the
issuing judge to satisfy himself of the existence of probable cause. In satisfying himself of the
existence of probable cause for the issuance of a warrant of arrest, the judge is not required to
personally examine the complainant and his witnesses. Following established doctrine and
procedure, he shall: (1) personally evaluate the report and the supporting documents submitted by
the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of
arrest; or (2) if on the basis thereof he finds no probable cause, he may disregard the fiscals report
and require the submission of supporting affidavits of witnesses to aid him in arriving at a
conclusion as to the existence of probable cause.

Sound policy dictates this procedure, otherwise judges would by unduly laden with the
preliminary examination and investigation of criminal complaints instead of concentrating on
[23]
hearing and deciding cases filed before their courts.

[24]
We reiterated the above ruling in the case of Webb v. De Leon, where we held that
before issuing warrants of arrest, judges merely determine the probability, not the certainty, of
guilt of an accused. In doing so, judges do not conduct a de novo hearing to determine the
existence of probable cause. They just personally review the initial determination of the
[25]
prosecutor finding a probable cause to see if it is supported by substantial evidence.

It is well to remember that there is a distinction between the preliminary inquiry which
determines probable cause for the issuance of a warrant of arrest and the preliminary
investigation proper which ascertains whether the offender should be held for trial or be
released. The determination of probable cause for purposes of issuing the warrant of arrest is
made by the judge. The preliminary investigation proper whether or not there is reasonable
ground to believe that the accused is guilty of the offense charged is the function of the
[26]
investigating prosecutor.

True, there are cases where the circumstances may call for the judges personal
examination of the complainant and his witnesses. But it must be emphasized that such personal
examination is not mandatory and indispensable in the determination of probable cause for the
issuance of a warrant of arrest. The necessity arises only when there is an utter failure of the
[27]
evidence to show the existence of probable cause. Otherwise, the judge may rely on the
report of the investigating prosecutor, provided that he likewise evaluates the documentary
evidence in support thereof.

Indeed, what the law requires as personal determination on the part of the judge is that he
[28]
should not rely solely on the report of the investigating prosecutor. In Okabe v. Gutierrez,
we stressed that the judge should consider not only the report of the investigating prosecutor but
also the affidavit and the documentary evidence of the parties, the counter-affidavit of the
accused and his witnesses, as well as the transcript of stenographic notes taken during the
preliminary investigation, if any, submitted to the court by the investigating prosecutor upon the
[29]
filing of the Information. If the report, taken together with the supporting evidence, is
sufficient to sustain a finding of probable cause, it is not compulsory that a personal
examination of the complainant and his witnesses be conducted.

In this case, respondent Judge Carbonell dismissed Criminal Case No. 6983 without
taking into consideration the June 11, 2003 Resolution of 2nd Assistant Provincial Prosecutor
Georgina Hidalgo, the October 13, 2003 Resolution of the panel of prosecutors, and the July 1,
2005 Resolution of the Department of Justice, all of which sustain a finding of probable cause
against Arzadon. Moreover, he failed to evaluate the evidence in support thereof. Respondent
judges finding of lack of probable cause was premised only on the complainants and her
witnesses absence during the hearing scheduled by the respondent judge for the judicial
determination of probable cause.

Petitioner narrated in detail the alleged rape incident both in her Sinumpaang
[30] [31]
Salaysay dated July 24, 2002 and Complaint-Affidavit dated March 5, 2003. She
attended several clarificatory hearings that were conducted in the instant case. The transcript of
[32]
stenographic notes of the hearing held on October 11, 2002 shows that she positively
identified Arzadon as her assailant, and the specific time and place of the incident. She also
claimed that she bore a child as a result of the rape and, in support of her contentions, presented
the child and her birth certificate as evidence. In contrast, Arzadon merely relied on the defense
of alibi which is the weakest of all defenses.

After a careful examination of the records, we find that there is sufficient evidence to
establish probable cause. The gravamen of rape is the carnal knowledge by the accused of the
private complainant under any of the circumstances provided in Article 335 of the Revised
[33]
Penal Code, as amended. Petitioner has categorically stated that Arzadon raped her,
recounting her ordeal in detail during the preliminary investigations. Taken with the other
evidence presented before the investigating prosecutors, such is sufficient for purposes of
establishing probable cause. It is well-settled that a finding of probable cause need not be based
on clear and convincing evidence beyond reasonable doubt. Probable cause is that which
engenders a well-founded belief that a crime has been committed and that the respondent is
probably guilty thereof and should be held for trial. It does not require that the evidence would
[34]
justify conviction.

It is clear therefore that respondent Judge Carbonell gravely abused his discretion in
dismissing Criminal Case No. 6983 for lack of probable cause on the ground that petitioner and
her witnesses failed to take the witness stand. Considering there is ample evidence and
sufficient basis on record to support a finding of probable cause, it was unnecessary for him to
take the further step of examining the petitioner and her witnesses. Moreover, he erred in
holding that petitioners absences in the scheduled hearings were indicative of a lack of interest
in prosecuting the case. In fact, the records show that she has relentlessly pursued the same.

[35]
Needless to say, a full-blown trial is to be preferred to ferret out the truth. As it were,
the incidents of this case have been pending for almost five years without having even passed
the preliminary investigation stage. Suffice to say that the credibility of petitioner may be tested
during the trial where the respective allegations and defenses of the complainant and the
accused are properly ventilated. It is only then that the truth as to Arzadons innocence or guilt
can be determined.

WHEREFORE, the petition is GRANTED. The Orders of the Regional Trial Court,
Branch 27, San Fernando, La Union dated December 16, 2005, and February 3, 2006
dismissing Criminal Case No. 6983 for lack of probable cause are REVERSED and SET
ASIDE, and the Information in the said case is hereby REINSTATED. The Regional Trial
Court, Branch 25, Manila is DIRECTED to take cognizance of the case and let the records
thereof be REMANDED to the said court for further proceedings.

SO ORDERED.

CONSUELO YNARES-SANTIAGO
Associate Justice

WE CONCUR:

MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice

MINITA V. CHICO-NAZARIO ANTONIO EDUARDO B. NACHURA

Associate Justice 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 Courts Division.

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson, Third Division
 CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairpersons
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 Courts Division.

LEONARDO A. QUISUMBING
Acting Chief Justice

* Pursuant to Section 44 of Republic Act No. 9262 (AN ACT DEFINING VIOLENCE AGAINST WOMEN AND THEIR CHILDREN
PROVIDING FOR PROTECTIVE MEASURES FOR VICTIMS, PRESCRIBING PENALTIES THEREFOR, AND FOR OTHER
PURPOSES), All records pertaining to cases of violence against women and their children including those in the barangay shall be
confidential and all public officers and employees and public or private clinics or hospitals shall respect the right to privacy of the victim.
Whoever publishes or causes to be published, in any format, the name, address, telephone number, school, business address, employer, or
other identifying information of a victim or an immediate family member, without the latters consent shall be liable to the contempt power
of the court.
Any person who violates this provision shall suffer the penalty of one (1) year imprisonment and a fine of not more than Five Hundred
Thousand Pesos (P500,000.00).

Section 63, Rule XI of the RULES AND REGULATIONS IMPLEMENTING REPUBLIC ACT NO. 9262 also provides: During the
investigation, prosecution and trial of an offense under the Act, law enforcement officials, prosecution, judges, court personnel and medical
practitioners, as well as parties to the case, shall recognize the right to privacy of the victim-survivor of violence. Law enforcement officers
and prosecutors shall conduct closed-door investigations and shall not allow the media to have access to any information regarding the
victim-survivor. The adult victim, however, may choose to go public or speak with the media, preferably with the assistance of her counsel.
The barangay officials, law enforcers, prosecutors and court personnel shall not disclose the names and personal circumstances of the
victim-survivors or complainants or any other information tending to establish their identities to the media or to the public or compromise
her identity.
It shall be unlawful for any editor, publisher, reporter or columnist in case of printed materials, announcer or producer in case of television
or radio, director and editor of a film in case of the movie industry, or any person utilizing try-media or information technology to cause
publicity of the name of identity of the victim-survivor or complainant without her consent. Identities of children shall not in any way be
disclosed to the public without the conformity of the DSWS officer of the city or province.
Any person who violates this provision shall suffer the penalty of one (1) year imprisonment and a fine of not more than Five Hundred
Thousand Pesos (P500,000.00).
[1]
Rollo, pp. 4-18.
[2]
Id. at 20-22. Penned by Judge Antonio A. Carbonell.
[3]
Id. at 24-26.
[4]
Id. at 28-29.
[5]
Id. at 168-170.
[6]
Id. at 31-35.
[7]
Id. at 37-38.
[8]
Id. at 40.
[9]
Id. at 42-46.
[10]
Id. at 149-156.
[11]
Id. at 79-82.
[12]
Id. at 85.
[13]
Id. at 87-90.
[14]
Records, Vol. 2, pp. 69-78.
[15]
Rollo, p. 98.
[16]
Id. at 12.
[17]
Id. at 230-234.
[18]
People v. Court of Appeals, 438 Phil. 215, 231 (2002); GCP-Manny Transport Services, Inc. v. Principe, G.R. No. 141484, November
11, 2005, 474 SCRA 555, 561-562.
[19]
Yared v. Ilarde, 391 Phil. 722, 733 (2000).
[20]
See Ouano v. PGTT International Investment Corporation, 434 Phil. 28, 35 (2002).
[21]
Rollo, p. 22.
[22]
G.R. Nos. L-82585, L-82827, and L-83979, November 14, 1988, 167 SCRA 393.
[23]
Id. at 398.
[24]
317 Phil. 758 (1995).
[25]
Id. at 793.
[26]
People v. Inting, G.R. No. 88919, July 25, 1990, 187 SCRA 788, 792-793.
[27]
Webb v. De Leon, supra note 24 at 794.
[28]
G.R. No. 150185, May 27, 2004, 429 SCRA 685.
[29]
Id. at 707.
[30]
Records, Vol. 1, pp. 13-16.
[31]
Id. at 8-10.
[32]
Id. at 81-93.
[33]
People v. Sabardan, G.R. No. 132135, May 21, 2004, 429 SCRA 9, 19.
[34]
Sarigumba v. Sandiganbayan, G.R. Nos. 154239-41, February 16, 2005, 451 SCRA 533, 550.
[35]
Abugotal v. Tiro, 160 Phil. 884, 890 (1975).