G.R. No. 89989 January 28, 1991 EDEN D. PAREDES, petitioner, vs. SANDIGANBAYAN, respondent. Rolando A.

Suarez and Generoso S. Sansaet for petitioner.

GRIO-AQUINO, J.:p The issues in this habeas corpus case are: (1) whether the arrest and detention of the petitioner after a preliminary investigation that was conducted by the Tanodbayan without notice to him, are valid, and (2) whether the crime charged against him has already prescribed. On anuary 21, 1!"#, $eferino %. &aredes, r., then the &rovincial 'ttorney of 'gusan del %ur, applied for a free patent for (ot )o. *+!",', &(%,#", with an area of 1,*!1 s-uare meters, located beside the .ashington /ighway in %an 0rancisco, 'gusan del %ur. /is application was favorably acted upon by the (and 1nspector, 'rmando (uison. On 2ay 11, 1!"#, O$T )o. &,3*"! was issued to him (p. 1!, Rollo). 4ight (3) years later, on une 2", 1!35, the %angguniang 6ayan of the 2unicipality of %an 0rancisco passed 7esolution )o. 5+, re-uesting the %angguniang &anlalawigan of 'gusan del %ur to assist it in recovering (ot )o. *+!" from 'ttorney &aredes because the land had been designated and reserved as a school site. The %angguniang 6ayan re-uested the provincial fiscal to file a per8ury charge against 'ttorney &aredes, r. (p. 19, Rollo). The resolution was approved by the %angguniang &anlalawigan (p. 1#, Rollo). On 2arch 23,1!39, $ivil $ase )o. 912, for annulment of 'ttorney &aredes: title, was filed by the 7epublic in the 7egional Trial $ourt, 6ranch #, 'gusan del %ur (p. 1", Rollo). ;uring the pendency of $ivil $ase )o. 912, Teofilo <elacio, former vice,mayor of %an 0rancisco, 'gusan del %ur, filed with the Tanodbayan on October 23, 1!3#, a criminal complaint charging 'ttorney &aredes with having violated %ection *(a) of the 'nti,<raft = $orrupt &ractices 'ct (7.'. *+1!) because he allegedly used his office as &rovincial 'ttorney to influence, persuade, and induce 'rmando (uison, (and 1nspector of the ;istrict (and Office in 'gusan del %ur, to favorably indorse his free patent application. %ection *(a) of the 'nti,<raft (aw provides:
%ec. *. Corrupt practices of public officers. > 1n addition to acts or omissions of public officers already penali?ed by e@isting law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful:

(a) &ersuading, inducing or influencing another public officer to perform an act constituting a violation of rules and regulations duly promulgated by competent authority or an offense in connection with the official duties of the latter, or allowing himself to be persuaded, induced or influenced to commit such violation or offense.

On 0ebruary 2*, 1!3", the Tanodbayan (now Ombudsman) referred the case to 0iscal 4rnesto 6rocoy of 6utuan $ity (T6& $ase )o. 3#,+**#3) for preliminary investigation. 0iscal 6rocoy issued summons to 'ttorney &aredes, r. to appear at the preliminary investigation of the case on 'ugust 2!, 1!3". /owever, the summons were served on )ovember 1!, 1!3" upon the 1)& %tation $ommander of %an 0rancisco, instead of 'tty. &aredes. The summons did not reach 'ttorney &aredes. )evertheless, without waiting for proof of service of the summons on the accused, 0iscal 6rocoy proceeded to conduct the preliminary e@amination of the complainant and his witnesses. On 'ugust 2!, 1!33, the fiscal issued a resolution finding a prima facie case of violation of %ection *(a) of 7.'. *+1! committed by the accused. The 0iscal:s resolution was approved by Tanodbayan &rosecutor osephine 0ernande? on une 2#, 1!3! (p. 22, Rollo). 'ttorney &aredes filed a motion for reconsideration of the Tanodbayan:s resolution. /e assailed the validity of the preliminary investigation that was conducted by 0iscal 6rocoy without notice to him (pp. 2*,29, Rollo). /is motion for reconsideration was denied. 1n the local elections on anuary 13, 1!33, 'ttorney &aredes was elected governor of 'gusan del %ur. On 2ay 2+, 1!33, the 7egional Trial $ourt of 'gusan del %ur rendered a decision in $ivil $ase )o. 912, annulling <overnor &aredes: 0ree &atent )o. (A, 3) 129* and his O$T )o. &,3*"! and restoring the land Bto the mass of public domainB (pp. 39,!3, Rollo). On 'ugust 23,1!33, an information was filed against <overnor &aredes in the %andiganbayan ($rim. $ase )o. 1*3++) and a warrant for his arrest, fi@ing bail of &2+,+++ for his provisional liberty, was issued on 'ugust *+, 1!3! and served upon him (p. 12, Rollo). /e refused to post bail in Bprotest against the in8ustice to him as <overnor,B (p. #3, Rollo). $onse-uently, he was detained in the municipal 8ail of %an 0rancisco. On %eptember 2+, 1!3!, this petition for habeas corpus was filed by his wife, 2rs. 4den &aredes, against the %andiganbayan. %he alleged that the warrant for her husband:s arrest was void because the preliminary investigation was void, and, that the crime charged in the information against him had already prescribed.

1n his return of the .rit, the %olicitor <eneral, as counsel for the %andiganbayan, agreed that lacC of notice to <overnor &aredes of the preliminary investigation was Ba fatal defectB invalidating not only the preliminary investigation, but also the information prepared by the Tanodbayan, and the warrant of arrest issued by the %andiganbayan (p. 95, Rollo). The %olicitor <eneral agreed with the petitioner:s contention that the ten year prescriptive period of the offense under %ection 11 of 7.'. *+1!, assuming it was committed on anuary 21, 1!"#, e@pired on anuary 21, 1!3#. 'lthough the prescriptive period was increased to fifteen (19) years under %ection 5, 6.&. 6lg. 1!9 of 2arch 1#, 1!32, the %olicitor <eneral opined that the new law may not be applied retroactively to &aredes. On the other hand, the Ombudsman argued that the %andiganbayan was improperly made respondent in this case because it does not have custody of <overnor &aredesD that the lacC of preliminary investigation did not affect the validity of the information nor the 8urisdiction of the %andiganbayanD and, that the crime has not yet prescribed because the period of prescription commences to run not on the day the crime was committed but on the day it was discovered by the offended party, the authorities, or their agents ('rt. !1, 7evised &enal $ode). 't the hearing of the petition of %eptember 2", 1!3!, the $ourt directed the petitioner to implead the Tanodbayan, through the %pecial &rosecutor, as well as the Ombudsman, as respondents. The $lerC of $ourt was instructed to furnish them with copies of the petition and to re-uire them to answer within ten (1+) days. The hearing of this case was reset on October 13, 1!3! at !:*+ o:clocC in the morning and provisional liberty was granted <overnor $eferino &aredes, r. on his own recogni?ance pending the determination of the petition. On October #, 1!3!, the Office of the %pecial &rosecutor filed its comment on the petition for habeas corpus. The %pecial &rosecutor argued that since &aredes was charged in the %andiganbayan for violation of 7epublic 'ct *+1!, and as the %andiganbayan has 8urisdiction over that offense, it is authori?ed to issue a warrant for his arrest and a writ of habeas corpus may not issue to free him from the custody of the law. 'fter careful deliberation over the petition and the comments thereon of the %olicitor <eneral, the %pecial &rosecutor and the OmbudsmanETanodbayan, the $ourt finds insufficient merit in the petition. The settled rule is that the writ of habeas corpus will not issue where the person alleged to be restrained of his liberty is in custody of an officer under a process issued by the court which has 8urisdiction to do so ((una vs. &la?a, 2# %$7' *1+D $eleste vs. &eople, *1 %$7' *!1D $anary vs. ;irector of &risons, *# %$7' *!D Fentura vs. &eople, (, 5#9"#, )ovember #, 1!"3). The petitioner alleges that the information against <overnor &aredes is invalid because the preliminary investigation was invalid and the offense charged has already prescribed. Those circumstances do not constitute valid grounds for the

issuance of a writ of habeas corpus. The absence of a preliminary investigation does not affect the court:s 8urisdiction over the case nor impair the validity of the information or otherwise render it defective (&eople vs. $asiano, (,19*+!, 0ebruary 1#, 1!#1D &eople vs. 0igueroa, (,252"*, 'pril *+, 1!#!). The remedy of the accused in such a case is to call the attention of the court to the lacC of a preliminary investigation and demand, as a matter of right, that one be conducted. The court, instead of dismissing the information, should merely suspend the trial and order the fiscal to conduct a preliminary investigation. Thus did we rule in Ilagan vs. Enrile, 1*! %$7' *5!.
1f the detained attorneys -uestion their detention because of improper arrest, or that no preliminary investigation has been conducted, the remedy is not a petition for a rit of !abeas Corpus but a "otion before the trial court to #uash the arrant of Arrest, and$or the Information on grounds provided by the Rules, or to as% for an investigation $ reinvestigation of the case . !abeas corpus would not lie after the .arrant of commitment was issued by the $ourt on the basis of the 1nformation filed against the accused. %o it is e@plicitly provided for by %ection 15, 7ule 1+2 of the 7ules of $ourt. . . . (4mphasis supplied).

1lagan was a reiteration of this $ourt:s ruling in &eople vs. Casiano, 1 %$7' 5"3 (1!#1) that:
The absence of a preliminary investigation does not affect the court:s 8urisdiction over the case. )or does it impair the validity of the information or otherwise render it defective. 1f there was no preliminary investigation and the defendant, before entering his plea, calls the attention of the court to the absence of a preliminary investigation, the court, instead of dismissing the information, should conduct such investigation, order the fiscal to conduct it or remand the case to the inferior court so that the preliminary investigation may be conducted.

The same rule was reiterated in the decision of this court in 'oromal vs. Sandiganbayan, G.R. (o. )*+,), September -, ./)/. The defense of prescription of the offense charged in the information should be pleaded in the criminal action otherwise it would be deemed waived (G.%. vs. %erapio, 2* &hil. 935, 9!3 citing 'ldeguer vs. /osCyn, 2 &hil. 9++D ;omingo vs. Osorio, " &hil. 5+9D 2a@ilom vs. Tabotabo, ! &hil. *!+D /arty vs. (una, 1* &hil. *1D %unico vs. 7amire?, 15 &hil. 9++). 1t is a proper ground for a motion to -uash which should be filed before the arraignment of the accused (%ecs. 1 = 2, 7ule 11", 1!39 7ules of $riminal &rocedureD &eople vs. $astro, (,#5+", uly 2!, 1!95) for whether the crime may still be prosecuted and penali?ed should be determined in the criminal case not in a special proceeding of habeas corpus.
'll -uestions which may arise in the orderly course of a criminal prosecution are to be determined by the court to whose 8urisdiction the defendant has been sub8ected by the law, and the fact that a defendant has a good and sufficient defense to a criminal charge on 0hich he is held 0ill not entitle him to his discharge on habeas corpus. (12 7.$.(. 12+#.) (4mphasis ours)

./4740O74, finding no merit in the petition, the same is hereby denied. The accused, $eferino &aredes, r. should file a bail bond of &2+,+++, fi@ed by the %andiganbayan for his provisional liberty. $osts against the petitioner. %O O7;474;. (arvasa, Cruz, Gancayco and "edialdea, 11., concur.