THIRD DIVISION

[G.R. No. 134744. January 16, 2001.]

GIAN PAULO VILLAFLOR , petitioner, vs . DINDO VIVAR y GOZON ,

respondent.

V.E. Del Rosario & Partners for petitioner.

Merlo P. Fernandez for respondent.

SYNOPSIS

Two criminal cases were led against the respondent, one for slight physical injuries
and another for grave threats. Subsequently, the earlier charge of slight physical injuries
was withdrawn and another for serious physical injuries was led. Respondent led a
Motion to Quash the Information for grave threats on the ground that the threat should
have been absorbed by the serious physical injuries. The MTC denied the Motion to Quash
considering that the same is prohibited under the Rule on Summary Procedure. The RTC,
however, granted the motion to quash the informations, ruling that the criminal cases
should be dismissed because the informations were led without preliminary
investigation. SETAcC

Hence, this petition, petitioner raising the issue of whether or not the court can motu
propio order the dismissal of the two criminal cases on the ground that the public
prosecutor failed to conduct a preliminary investigation.
Finding the petition meritorious, the Supreme Court held: that the absence of a
preliminary investigation does not impair the validity of the information, does not affect the
jurisdiction of the court, nor does it constitute a ground for quashing the information.
Instead of dismissing the cases, the trial court should have held in abeyance the
proceedings and ordered the public prosecutor to conduct a preliminary investigation. The
Court, however, noted that in fact a preliminary investigation for slight physical injuries was
conducted, but when the information was amended because petitioner's injuries turned out
to be more serious, a new preliminary investigation was not necessary because the change
made was only a formal amendment.

SYLLABUS

1. REMEDIAL LAW; CRIMINAL PROCEDURE; PRELIMINARY INVESTIGATION;

NATURE AND DEFINITION; ABSENCE THEREOF DOES NOT IMPAIR THE VALIDITY OF THE
INFORMATION; CASE AT BAR. — Preliminary investigation is "an inquiry or proceeding to
determine whether there is sufficient ground to engender a well founded belief that a crime
has been committed and the respondent is probably guilty thereof, and should be held for
trial." A component part of due process in criminal justice, preliminary investigation is a
statutory and substantive right accorded to the accused before trial. To deny their claim to
a preliminary investigation would be to deprive them of the full measure of their right to
due process. The absence of a preliminary investigation does not impair the validity of an
information or render it defective. Neither does it affect the jurisdiction of the court or
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 constitute a ground for quashing the information. The trial court, instead of dismissing the
information, should hold in abeyance the proceedings and order the public prosecutor to
conduct a preliminary investigation. Hence, the RTC in this case erred when it dismissed
the two criminal cases for serious physical injuries (Criminal Case No. 23787) and grave
threats (Criminal Case No. 23728) on the ground that the public prosecutor had failed to
conduct a preliminary investigation. AICEDc

2. ID.; ID.; ID.; NEW PRELIMINARY INVESTIGATION IS NOT NECESSARY IF

AMENDED CHARGE IS ESSENTIALLY THE SAME AS THE ORIGINAL CHARGE; CASE AT
BAR. — we do not agree that a preliminary investigation was not conducted. In fact, a
preliminary investigation for slight physical injuries was made by the assistant city
prosecutor of Muntinlupa City. The said Information was, however, amended when
petitioner's injuries turned out to be more serious and did not heal within the period
specified in the Revised Penal Code. We believe that a new preliminary investigation cannot
be demanded by respondent. This is because the change made by the public prosecutor
was only a formal amendment. The ling of the Amended Information, without a new
preliminary investigation, did not violate the right of respondent to be protected from a
hasty, malicious and oppressive prosecution; an open and public accusation of a crime; or
from the trouble, the expenses and the anxiety of a public trial. The Amended Information
could not have come as a surprise to him for the simple and obvious reason that it
charged essentially the same offense as that under the original Information. Moreover, if
the original charge was related to the amended one, such that an inquiry would elicit
substantially the same facts, then a new preliminary investigation was not necessary.
3. ID.; ID.; MOTION TO QUASH; GROUNDS THEREFOR ARE DEEMED WAIVED IF
NOT ASSERTED BEFORE ARRAIGNMENT; CASE AT BAR. — Furthermore, we stress that the
failure of the accused to assert any ground for a motion to quash before arraignment,
either because he had not led the motion or had failed to allege the grounds therefor,
shall be deemed a waiver of such grounds. In this case, he waived his right to le such
motion when he pleaded not guilty to the charge of grave threats. TDcEaH

DECISION

PANGANIBAN , J : p

The absence of a preliminary investigation does not impair the validity of an

information or render it defective. Neither does it affect the jurisdiction of the court or
constitute a ground for quashing the information. Instead of dismissing the information,
the court should hold the proceedings in abeyance and order the public prosecutor to
conduct a preliminary investigation.
The Case
Before us is a Petition for Review under Rule 45 of the Rules of Court, seeking to set
aside the Orders issued by the Regional Trial Court (RTC) of Muntinlupa City (Branch 276)
in Civil Case No. 97 134. 1 Dated January 20, 1998, 2 the rst Order granted the Motion to
Quash the Informations and ordered the dismissal of the two criminal cases. The second
Order dated July 6, 1998, denied the Motion for Reconsideration.
The Facts
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 Culled from the records and the pleadings of the parties are the following
undisputed facts.
An Information 3 for slight physical injuries, docketed as Criminal Case No. 23365,
was led against Respondent Dindo Vivar on February 7, 1997. The case stemmed from
the alleged mauling of Petitioner Gian Paulo Villa or by respondent around 1:00 a.m. on
January 27, 1997 outside the Fat Tuesday Bar at the Ayala Alabang Town Center,
Muntinlupa City. After the severe beating he took from respondent, petitioner decided to
leave the premises together with a friend who was in the restroom when the mauling
incident took place. On his way out, petitioner again met respondent who told him, "Sa
susunod gagamitin ko na itong baril ko" 4 ("Next time, I will use my gun on you").
When the injuries sustained by petitioner turned out to be more serious than they
had appeared at rst, an Information 5 for serious physical injuries, docketed as Criminal
Case No. 23787, was led against respondent. 6 The earlier charge of slight physical
injuries was withdrawn.
At the same time, another Information 7 for grave threats, docketed as Criminal Case
No. 23728, 8 was filed against respondent on March 17, 1997.
On April 14, 1997, respondent posted a cash bond of P6,000 in Criminal Case No.
23787 (for serious physical injuries). 9 Instead of ling a counter-a davit as required by
the trial court, he led on April 21, 1997, a Motion to Quash the Information in Criminal
Case No. 23728 (for grave threats). He contended that the threat, having been made in
connection with the charge of serious physical injuries, should have been absorbed by the
latter. Thus, he concluded, Criminal Case No. 23728 should be dismissed, as the trial court
did not acquire jurisdiction over it. 1 0
In an Order dated April 28, 1997 in Criminal Case No. 23728, the Metropolitan Trial
Court (MTC) denied the Motion to Quash, as follows:
"For consideration is a motion to quash led by accused counsel.
Considering that jurisdiction is conferred by law and the case filed is grave threats
which is within the jurisdiction of this Court and considering further that a motion
to quash is a prohibited [pleading] under the rule on summary procedure, the
motion to quash filed by accused counsel is DENIED.
WHEREFORE, the motion to quash led by accused counsel is hereby
DENIED and let the arraignment of the accused be-set on June 25, 1997 at 2:00 o'
clock in the afternoon." 1 1

The Motion for Reconsideration led by respondent was denied by the MTC on June
17, 1997. 1 2 Thus, he was duly arraigned in Criminal Case No. 23728 (for grave threats),
and he pleaded not guilty.
On July 18, 1997, respondent led a Petition for Certiorari with the RTC of
Muntinlupa City. This was docketed as Civil Case No. 97-134. On January 20, 1998, after
the parties submitted their respective Memoranda, the RTC issued the assailed Order
which reads as follows:
"The Judicial O cer appears to have acted with grave abuse of discretion
amounting to lack of jurisdiction in declaring and denying the MOTION TO
QUASH as a prohibitive motion. The same should have been treated and [should
have] proceeded under the regular rules of procedure. The MOTION TO QUASH
THE INFORMATIONS led without preliminary investigation is therefore granted
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 and these cases should have been dismissed.
Let this Petition be returned to the Metropolitan Trial Court, Branch 80-
Muntinlupa City for appropriate action." 1 3

The RTC, in an Order dated July 6, 1998, denied the unopposed Motion for
Reconsideration, as follows:
"Submitted for resolution is the unopposed Motion for Reconsideration
filed by Private Respondent.
This Court agrees with the contention of private respondent that the
Motion to Quash led by petitioner in the inferior court is a prohibited pleadings
under Rules on Summary Procedure so that its denial is tenable. However, it
would appear that the criminal charges were led without the preliminary
investigation having been conducted by the Prosecutor's O ce. Although
preliminary investigation in cases triable by inferior courts is not a matter of right,
the provision of Sec. 51 par 3(a) of Republic Act 7926 entitled "An Act Converting
the Municipality of Muntinlupa Into a Highly Urbanized City To Be Known as the
City of Muntinlupa" provides that the city prosecutor shall conduct preliminary
investigations of ALL crimes, even violations of city ordinances. This Act
amended the Rules on Criminal Procedure. Since this procedure was not taken
against accused, the Order dated January 20, 1998 stands. ESDHCa

The Motion for Reconsideration is therefore denied." 1 4

Hence, this Petition. 1 5

The Issues
Petitioner submits the following issues for our consideration: 1 6
"I

Can the court motu propio order the dismissal of the two (2) criminal cases
for serious physical injuries and grave threats on the ground that the public
prosecutor failed to conduct a preliminary investigation?
"II

Should the failure of the public prosecutor to conduct a preliminary

investigation be considered a ground to quash the criminal informations for
serious physical injuries and grave threats filed against the accused-respondent?

"III
Should respondent's entry of plea in the [grave] threats case and posting of
cash bond in the serious physical injuries case be considered a waiver of his right,
if any, to preliminary investigation?"

The Court's Ruling

The Petition is meritorious.
First Issue:
Lack of Preliminary Investigation
Preliminary investigation is "an inquiry or proceeding to determine whether there is
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 su cient ground to engender a well founded belief that a crime has been committed and
the respondent is probably guilty thereof, and should be held for trial." 1 7 A component
part of due process in criminal justice, preliminary investigation is a statutory and
substantive right accorded to the accused before trial. To deny their claim to a preliminary
investigation would be to deprive them of the full measure of their right to due process. 1 8
However, the absence of a preliminary investigation does not impair the validity of
the information or otherwise render it defective. 1 9 Neither does it affect the jurisdiction of
the court or constitute a ground for quashing the information. 2 0 The trial court, instead of
dismissing the information, should hold in abeyance the proceedings and order the public
prosecutor to conduct a preliminary investigation. 2 1
Hence, the RTC in this case erred when it dismissed the two criminal cases for
serious physical injuries (Criminal Case No. 23787) and grave threats (Criminal Case No.
23728) on the ground that the public prosecutor had failed to conduct a preliminary
investigation.
Furthermore, we do not agree that a preliminary investigation was not conducted. In
fact, a preliminary investigation for slight physical injuries was made by the assistant city
prosecutor of Muntinlupa City. The said Information was, however, amended when
petitioner's injuries turned out to be more serious and did not heal within the period
specified in the Revised Penal Code.
We believe that a new preliminary investigation cannot be demanded by respondent.
This is because the change made by the public prosecutor was only a formal amendment.
22

The ling of the Amended Information, without a new preliminary investigation, did
not violate the right of respondent to be protected from a hasty, malicious and oppressive
prosecution; an open and public accusation of a crime; or from the trouble, the expenses
and the anxiety of a public trial. The Amended Information could not have come as a
surprise to him for the simple and obvious reason that it charged essentially the same
offense as that under the original Information. Moreover, if the original charge was related
to the amended one, such that an inquiry would elicit substantially the same facts, then a
new preliminary investigation was not necessary. 2 3
Second Issue:
Motion to Quash
As previously stated, the absence of a preliminary investigation does not impair the
validity of the information or otherwise render it defective. Neither does it affect the
jurisdiction of the court over the case or constitute a ground for quashing the information.
24

Section 3, Rule 117 of the Revised Rules of Criminal Procedure, provides the
grounds on which an accused can move to quash the complaint or information. These are:
(a) the facts charged do not constitute an offense; (b) the court trying the case has no
jurisdiction over the offense charged (c) the court trying the case has no jurisdiction over
the person of the accused; (d) the o cer who led the information had no authority to do
so; (e) the information does not conform substantially to the prescribed form; (f) more
than one offense is charged, except in those cases in which existing laws prescribe a
single punishment for various offenses; (g) the criminal action or liability has been
extinguished; (h) the information contains averments which, if true, would constitute a legal
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 excuse or justi cation; and (i) the accused has been previously convicted or is in jeopardy
of being convicted or acquitted of the offense charged. 2 5
Nowhere in the above-mentioned section is there any mention of a lack of a
preliminary investigation as a ground for a motion to quash. Moreover, such motion is a
prohibited pleading under Section 19 of the Revised Rules on Summary Procedure. In the
present case, the RTC therefore erred in granting herein respondent's Motion to Quash.
Furthermore, we stress that the failure of the accused to assert any ground for a
motion to quash before arraignment, either because he had not led the motion or had
failed to allege the grounds therefor, shall be deemed a waiver of such grounds. 2 6 In this
case, he waived his right to le such motion when he pleaded not guilty to the charge of
grave threats.
In view of the foregoing, we nd no more need to resolve the other points raised by
petitioner.
WHEREFORE, the Petition is GRANTED, and the assailed Orders of the Regional Trial
Court of Muntinlupa City are REVERSED. No costs.
SO ORDERED.
Melo, Vitug, Gonzaga-Reyes and Sandoval-Gutierrez, JJ ., concur.

Footnotes
1. The title of the case is "Dindo Vivar, Petitioner, vs. Hon. Judge Jose L. Bautista, in his
capacity as Assisting Judge, Metropolitan Trial Court, Branch LXXX, Muntinlupa City,
and People of the Philippines, Respondents."
2. Both Orders were issued by Judge N. C. Perello; rollo, pp. 48-51 and 52.
3. Signed by Assistant City Prosecutor Dale Dick M. Liban.
4. Rollo, p. 55.
5. Signed by Assistant City Prosecutor Thelma B. Medina.

6. Rollo, p. 65.
7. Signed by Assistant City Prosecutor Thelma B. Medina.
8. Rollo, p. 66.
9. Rollo, p. 69.
10. Rollo, p. 73.
11. Rollo, p. 75.
12. Rollo, p. 78.
13. Rollo, p. 51.
14. Rollo, p. 52.
15. The case was deemed submitted for decision on May 4, 2000, upon the Court's receipt
of respondent's Memorandum, signed by Atty. Merlo P. Fernandez. Filed earlier were
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 petitioner's Memorandum, signed by Atty. Ma Theresa Gonzales of V.E. Del Rosario &
Partners; and that of the Office of the Solicitor General, signed by Sol. Gen. Ricardo P.
Galvez, Asst. Sol. Gen. Magdangal M. De Leon and Sol. Bernard G. Hernandez.
16. Petition, pp. 13-14; rollo, pp. 30-31.
17. Section 1, Rule 112 of the Revised Rules of Criminal Procedure, which became effective
on December 1, 2000. A substantially similar provision is found in the old Rules.
18. Go v. CA, 206 SCRA 138, February 11, 1992.
19. People v. Deang et al., GR No. 128045, August 24, 2000; People v. Gomez, 117 SCRA 72,
September 30, 1982; People v. Casiano, 1 SCRA 478, February 16, 1961.
20. People v. Deang, supra.
21. Paredes v. Sandiganbayan, 193 SCRA 464, January 28, 1991; Sanciangco Jr. v. People,
149 SCRA 1, March 24, 1987.
22. The following have been held to be merely formal amendments, viz.: (1) new
allegations that relate only to the range of the penalty that the court might impose in the
event of conviction; (2) an amendment that does not charge another offense different or
distinct from that charged in the original one; (3) additional allegations that do not alter
the prosecution's theory of the case so as to cause surprise to the accused and affect
the form of defense to be assumed; and (4) an amendment that does not adversely
affect any substantial right of the accused, such as the right to invoke prescription.
Teehankee Jr. v. Madayag, 207 SCRA 134, March 6, 1992. (Emphasis supplied.)
23. Ibid.
24. People v. Deang, supra.
25. The old Rules of Criminal Procedure contained a substantially similar provision.
However, paragraphs (b) and (j) of the Revised Rules were found in paragraph (b) of the
old Rules, which read: "That the court trying the case has no jurisdiction over the offense
charged or the person of the accused."

26. Section 9, Rule 117 of the Revised Rules of Criminal Procedure, provides that the
exceptions — found in paragraphs (a), (b), (i) and (i) of Section 3 of this Rule — are the
grounds of no offense charged, lack of jurisdiction over the offense charged, extinction
of the offense or penalty, and jeopardy. Under Section 8, Rule 117 of the old Rules, the
exceptions were paragraphs (a), (b) (g and (h).

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