Preliminary investigation; when deemed waived - G.R. No. 175289

G.R. No. 175289

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"x x x.

Records show that the investigating prosecutor received a criminal complaint charging Sudaria, Latayada, Baillo and Boyatac with violation of Section 68 of P.D. No. 705, as amended.[38] The said complaint did not state the known addresses of the accused. Neither was the notarized joint-affidavit of the complainants attached thereto. The subpoena issued to the accused and the copy of their counter-affidavits were also not part of the record. Moreover, the complaint did not include Villarin as a respondent. However, said infirmities do not constitute denial of due process particularly on the part of Villarin.

It is evidently clear from the Resolution dated March 13, 1996 of the Office of the City Prosecutor that Villarin and all the accused participated in the scheduled preliminary investigation that was conducted prior to the filing of the criminal case.[39] They knew about the filing of the complaint and even denied any involvement in the illegal cutting of timber. They were also given the opportunity to submit countervailing evidence to convince the investigating prosecutor of their innocence.

Foregoing findings considered, there is no factual basis to the assertion that Villarin was not afforded a preliminary investigation. Accordingly, we find no grave abuse of discretion on the part of the Office of the Ombudsman-Mindanao in denying Villarin’s motion for reconsideration. It validly relied on the certification contained in the Information that a preliminary investigation was properly conducted in this case. The certification was made under oath by no less than the public prosecutor, a public officer who is presumed to have regularly performed his official duty.[40] Besides, it aptly noted that “Villarin was implicated by x x x Latayada in his affidavit dated January 22, 1996 before Marcelino B. Pioquinto, Chief, Forest Protection and Law Enforcement Unit. The denial of Villarin cannot prevail over the declaration of witnesses.”[41]

Moreover, the absence of a proper preliminary investigation must be timely raised and must not have been waived. This is to allow the trial court to hold the case in abeyance and conduct its own investigation or require the prosecutor to hold a reinvestigation, which, necessarily “involves a re-examination and re-evaluation of the evidence already submitted by the complainant and the accused, as well as the initial finding of probable cause which led to the filing of the Informations after the requisite preliminary investigation.”[42]

Here, it is conceded that Villarin raised the issue of lack of a preliminary investigation in his Motion for Reinvestigation. However, when the Ombudsman denied the motion, he never raised this issue again. He accepted the Ombudsman's verdict, entered a plea of not guilty during his arraignment and actively participated in the trial on the merits by attending the scheduled hearings, conducting cross-examinations and testifying on his own behalf. It was only after the trial court rendered judgment against him that he once again assailed the conduct of the preliminary investigation in the Motion for Reconsideration.[43] Whatever argument Villarin may have regarding the alleged absence of a preliminary investigation has therefore been mooted. By entering his plea, and actively participating in the trial, he is deemed to have waived his right to preliminary investigation.

Petitioners also contend that Sudaria should also have been included as a principal in the commission of the offense. However, whether Sudaria should or should not be included as co-accused can no longer be raised on appeal. Any right that the petitioners may have in questioning the non-inclusion of Sudaria in the Information should have been raised in a motion for reconsideration of the March 13, 1996 Resolution of the Office of the City Prosecutor which recommended the dismissal of the complaint against Sudaria.[44] Having failed to avail of the proper
procedural remedy, they are now estopped from assailing his non-inclusion.

x x x."