G.R. No. 128764




Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 128764 July 10, 1998 BIENVENIDO TAN, JR., petitioner, vs. THE HONORABLE SANDIGANBAYAN (THIRD DIVISION), respondent. MARTINEZ, J.: Petitioner was among those charged before the Sandiganbayan with violations of Section 3(e) and (g) of the Anti-Graft law 1 under the following information: 2 That on or about December 22, 1988 and for sometime prior or subsequent thereto in Quezon City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, BIENVENIDO A. TAN, JR., being then the Commissioner, Bureau of Internal Revenue, JUANITO P. URBI, Chief, Prosecution Division, BIR, JAIME MAZA, Asst. Commissioner, Legal Service Division, BIR, all public officers, while in the performance of their official functions, conspiring and confederating with the accused private individuals NAZARIO L. AVENDANO, Senior Vice President/Comptroller San Miguel Corporation and JAIME G. DELA CRUZ, Asst. Vice-President, San Miguel Corporation, through evident bad faith and manifest partiality, did then and there willfully, unlawfully, and criminally cause undue injury to the Government by effecting a compromise of the tax liabilities of San Miguel Corporation in the total amount of THREE HUNDRED TWO MILLION NINE HUNDRED FIFTY ONE THOUSAND, FORTY EIGHT PESOS AND NINETY THREE CENTAVOS (P302,951,048.93), Philippine Currency for TEN MILLION PESOS ONLY (P10,000,000.00), which compromise is grossly disadvantageous to the Government and thus giving unwarranted benefits to San Miguel Corporation in the amount of P292,951,048.93, to the damage and prejudice of the Government in the aforesaid amount. CONTRARY TO LAW. 3 After arraignment, all the accused including petitioner, filed a motion for reinvestigation 4 which was granted by the Sandiganbayan. Upon reinvestigation, the Special Prosecutor found no sufficient probable cause against petitioner's co-accused and moved to drop the charge against them with the exception of petitioner. *5 In its resolution dated November 27, 1995, the Sandiganbayan* granted the said motion. 6** Almost a year later, petitioner filed a motion to dismiss (should be motion to quash) the information arguing that there being no conspiracy as found by the Special Prosecutor, the charge against him of "conspiring and confederating" with others in committing the crime has no more basis. 7 It is petitioner's theory that there cannot be conspiracy if only one person remains charged under the same information. When the Sandiganbayan denied his motion 8 and without filing a motion for reconsideration, petitioner elevated the case to this Court via certiorari under Rule 65 with prayer for preliminary injunction and/or issuance of a temporary restraining order. The petition has no merit. First, the special civil action of certiorari will not lie unless the aggrieved party has no other plain, speedy and adequate remedy in the ordinary course of law. 9 One such remedy which petitioner did not avail is by filing a motion for reconsideration 10 where it could have granted the lower court an opportunity to correct the alleged error. 11 Immediate recourse to certiorari is not proper except if the case falls under the exceptions, 12 none of which, however, concurs in this case. Second, certiorari is not the remedy where a motion to dismiss (quash) an Information is denied 13 — the proper procedure for which has been consistently defined by the court, to wit: an order denying a motion to quash is interlocutory and therefore not appealable, nor can it be the subject of a petition for certiorari. Such order may only be reviewed in the ordinary course of law by an appeal from the judgment after trial. In other words, it cannot be the subject of appeal until the judgment or a final order is rendered. The ordinary procedure to be followed in that event is to enter a plea, go to trial, and if the decision is adverse, reiterate the issue on appeal from the final judgment. 14 The extraordinary remedy of certiorari can be availed of only if the denial of the motion constitutes grave abuse of discretion. 15 In this case, that vitiating error cannot be imputed to respondent court for the following reasons: Contrary to petitioner's argument, the information filed against him is valid. All the material facts and essential elements constituting the crimes defined in Section 3(e) and (g) 16 for which petitioner was charged were alleged therein, i.e. as "public officer" — being then the "Commissioner of the BIR," petitioner committed a crime by entering into a tax "compromise" which was "grossly disadvantageous to the government". 17 Conspiracy is not an element of those crimes and thus, need not even be alleged in the information. Its allegation therein was just to show how the accused incurred criminal liability. The subsequent dismissal of the charge against petitioner's co-accused premised on the non-existence of conspiracy did not render the information defective as to petitioner who remains charged therein and under which he may be tried and even convicted. Petitioner, therefore, cannot validly contend that he was not adequately informed of the nature and cause of the accusation against him in violation of his fundamental right. 18 Moreover, the allegation of conspiracy in the information, if at all, merely became a surplusage as a consequence of the outcome of the reinvestigation. In any case, an information alleging conspiracy can stand even if only one person is charged except that the court cannot pass verdict on the co-conspirators who were not charged in the information. Petitioner also imputes grave abuse of discretion to the Sandiganbayan when it still granted their (with his co-accused) prayer for reinvestigation even if they were already arraigned. The Court is at a loss by such argument. It is ridiculous for petitioner to pray for reinvestigation and then cry grave abuse of discretion when his very prayer is granted. Furthermore, petitioner obviously knew that when they asked for reinvestigation, their arraignment was already finished. Thus, that earlier arraignment is not a valid reason to jettison the court's ruling on the motion for reinvestigation. Next, petitioner assails the Sandiganbayan's refusal to amend the information by deleting the allegation of conspiracy and charging only petitioner. According to him, the lower court will not allow the amendment because it will be forced to dismiss the case since the amendment will allegedly placed petitioner in double jeopardy. This is a preposterous argument. First, the imputation of double jeopardy is premature because there was no amendment made. Second, assuming that there was an amendment, the original information is deemed superseded by the amended information and the proceedings under either information are not separate and distinct from each other but constitute one continuous trial involving only one offense. Third, the requisite of double jeopardy that the first jeopardy must have attached prior to the second is not present 19 considering that petitioner was neither convicted, acquitted, nor the case against him dismissed or otherwise terminated without his express consent. 20 The dismissal of the charge as to his co-accused is not the equivalent of, nor does it operate as petitioner's acquittal for the offense. 21 Fourth, considering that only one information was filed against petitioner and there was as yet no trial on the merits, a second jeopardy cannot possibly arise. And last, following the logic of petitioner's argument, the court in not granting the prayer to amend the information precisely avoided placing him in double jeopardy. As to petitioner's contention that his co-accused should also be charged, it should be noted that the discretion who to prosecute depends on the prosecution's sound assessment whether the evidence before it can justify a reasonable belief that a person has committed an offense. 22 The rule on Criminal Procedure that all criminal actions must be commenced in the name of the People of the Philippines "against all persons who appear to be responsible for the offense involved" 23 does not mean that the prosecuting officer shall have no discretion at all. "What the rule demands is that all persons who appear responsible shall be charged in the information, which conversely implies that those against whom no sufficient evidence exists are not required to be included." 24 The Court cannot compel the prosecution who to charged because: (it) has consistently refrained from interfering with the exercise of the Ombudsman of his constitutionally mandated investigatory and prosecutory powers. It is beyond the ambit of the Court to review the exercise of discretion of the Ombudsman in prosecuting or dismissing a complaint filed before it. 25 The rationale for this is that, Such initiative and independence are inherent in the Ombudsman who, beholden to no one, acts as the champion of the people and preserver of the integrity of the public service. 26 In any case, the non-inclusion of other persons who appear to be responsible for the crime charged is not one of the grounds under Section 3, Rule 117 for which a motion to quash the information may be filed. Moreover, the motion to dismiss (quash) must still be denied for having been filed too late (almost a year had passed since the reinvestigation) and only after petitioner had already been arraigned which contravenes the rule that the failure to assert any ground in a motion to quash before pleading to the information is deemed waived except the grounds of no jurisdiction, no offense charged, extinction of crime or penalty and jeopardy. 27 The dropping of the charge against a co-accused is not covered by the exception; hence, deemed waived. Petitioner also wants to impress on the Court that he cannot be liable for the tax compromise since he merely relied on the recommendation of his subordinates in the office. This is a matter of defense which cannot be proved during the proceedings in a motion to dismiss. 28 WHEREFORE, premises considered, finding no grave abuse of discretion on the part of the Sandiganbayan, the petition is hereby DISMISSED. SO ORDERED. Regalado, Puno and Mendoza, JJ., concur. Melo, J., is on leave. Footnotes 1 R.A. 3019 as amended. 2 Information dated May 19, 1994 in SB Case No. 20685; Annex "R" of Petition; Rollo, pp. 114-115. 3 Annex "A" of the Petition; Rollo, p. 30. 4 Rollo, pp. 113-141. 5 Order dated January 31, 1995 issued by the Special Prosecutor; Rollo, pp. 143-153. 6 Resolution of Sandiganbayan (SB 3rd Division) dated November 27, 1995 in People v. Tan, Jr. et. al., SB Case No. 20685; Rollo, pp. 154-155. 7 Petitioner's Motion to Dismiss filed before the SB on October 22, 1996; Rollo, pp. 156-162. 8 SB Resolution promulgated on March 20, 1997 penned by Justice Cruz with Justices Del Rosario and De Leon, concurring; Rollo, pp. 30-33. 9 Ongsitco v. CA, 325 Phil. 1069, 1076; Heirs of Placido Miranda v. CA, 255 SCRA 368, Filoteo, Jr. v. Sandiganbayan, 263 SCRA 222, Zarate, Jr. v. Olegario, 263 SCRA 1. 10 Luna v. NLRC, 270 SCRA 227; Jariol v. COMELEC, 270 SCRA 255. 11 Tan v. CA, G.R. No. 108634, July 17, 1997. 12 The recognized exceptions where the special civil action for certiorari will lie even without filing a motion for reconsideration includes: (a) where the order is a patent nullity, as where the court a quo has no jurisdiction; (b) where the questions raised in the certiorari proceeding have been duly raised and passed upon by the lower court, or are the same as those raised and passed upon in the lower court; (c) where there is an urgent necessity for the resolution of the question and any further delay would prejudice the interests of the Government or of the petitioner or the subject matter of the action is perishable; (d) where, under the circumstances, a motion for reconsideration would be useless; (e) where petitioner was deprived of due process and there is extreme urgency for relief; (f) where, in a criminal case, relief from an order of arrest is urgent and the granting of such relief by the trial court is improbable; (g) where the proceedings in the lower court are a nullity for lack of due process; (h) where the proceedings was ex parte or in which the petitioner had no opportunity to object; and (i) where the issue raised is one purely of law or where public interest is involved(Tan v. CA, supra.). 13 Lalican v. Vergara, etc., G.R. No. 108679, July 31, 1997. 14 Socrates v. Sandiganbayan, 324 Phil. 151, 176 citing Cruz, Jr. v. CA 194 SCRA 145 and Reyes, Jr., v. Camilon 192 SCRA 445. 15 La Tondeña Distillers, Inc. v. Ponferrada, 264 SCRA 540, 543 (1996) citing Mendoza v. CA, 201 SCRA 343; Cojuangco v. Romillo, Jr., 167 SCRA 751, Acain v. CA, 155 SCRA 100; Vda de Bacang v. CA, 125 SCRA 137. 16 R.A 3019, Section 3 (e) "Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official, administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions. (g) Entering on behalf of the Government, into any contract or transaction manifestly and grossly disadvantageous to the same, whether or not the public officer profits or will profit thereby" 17 Information dated May 19, 1994 in SB Case No. 20685. 18 Sec. 14(2), Article III, 1987 Constitution provides in part that "in all criminal prosecutions, the accused shall . . . enjoy the right . . . to be informed of the nature and cause of the accusation against him . . . ". 19 The other two requisites of double jeopardy are: (a) the first jeopardy must have been validly terminated; and (b) the second jeopardy must be for the same offense as that in the first. (People v. Tampal, 314 Phil. 35 (1995)). 20 The other requisites of a first jeopardy are as follows: (1) upon a valid arraignment, (2) before a competent court, (3) after arraignment, (4) when a valid plea has been entered. (People v. Tampal, supra.). 21 Cunanan v. Arceo, 242 SCRA 88. 22 Socrates v. Sandiganbayan, 324 Phil. 151, 253 SCRA 773 (1996). 23 Sec. 2, Rule 118 of the Rules on Criminal Procedure provides: "The complaint or information. — The complaint or information shall be in writing in the name of the People of the Philippines against all persons who appear to be responsible for the offense involved." 24 People v. Enriquez, 220 SCRA 325 (1993) cited in Socrates v. Sandiganbayan, supra 182. 25 Alba v. Hon. Nitorreda, (Resolution). 325 Phil. 229, 244 (1996). 26 Alba v. Hon. Nitorreda, supra. 27 Sec. 8, Rule 117. "Failure to move to quash or to allege any ground therefor. — The failure of the accused to assert any ground of a motion to quash before he pleads to the complaint or information, either because he did not file a motion to quash or failed to allege the same in said motion shall be deemed a waiver of the grounds of a motion to quash, except the grounds of no offense charged, lack of jurisdiction over the offense charged, extinction of the offense or penalty and jeopardy, as provided in pars. (a), (b), (f) and (h) of Section 3 of this rule." 28 Lopez v. Sandiganbayan, 319 Phil. 387, 398 (1995). The Lawphil Project - Arellano Law Foundation