G.R. No. 50720
March 26, 1984
Facts
An information against petitioner alleged that the latter offered, took and arranged bets on the Jai Alai game by “selling illegal tickets known as ‘Masiao tickets’ without any authority from the Philippine Jai Alai & Amusement Corporation or from the government authorities concerned.”
During the hearing of the case, the petitioner discovered that nowhere from the records of the said case could be found the search warrant and other pertinent papers connected to the issuance of the same. Then, he inquired from the City Fiscal its whereabouts, and to which inquiry respondent Judge replied, “it is with the court”. Thereafter, the Judge handed the records to the Fiscal who attached them to the records. With that, the petitioner filed a motion to quash and annul the search warrant but was denied by respondent judge.
In denying the motion to quash, respondent Judge argued that the court made a certification to that effect; and that documents relating to the search warrant were not attached immediately to the record of the criminal case is of no moment, considering that the rule does not specify when these documents are to be attached to the records. Hence, this petition.
Petitioner is questioning the validity of the search warrant issued by respondent Judge for allegedly being violative of the Constitution and the Rules of Court. He contends that the search warrant issued by respondent Judge was based merely on the application for search warrant and a joint affidavit of private respondents which were wrongfully subscribed, and sworn to before the Clerk of Court of respondent Judge. Furthermore, there was allegedly a failure on the part of respondent Judge to attach the necessary papers pertinent to the issuance of the search warrant.
Issue
Whether or not the failure of respondent judge to (1) take the depositions in writing and (2) to attach to the records of the case such depositions makes the search warrant illegal?
Held
Yes. Under the Constitution “no search warrant shall issue but upon probable cause to be determined by the Judge or such other responsible officer as may be authorized by law after examination under oath or affirmation of the complainant and the witnesses he may produce”. Additionally, Section 4 of Rule 126 provides that the judge must before issuing the warrant (1) personally examine on oath or affirmation the complainant and any witnesses he may produce and (2) take their depositions in writing, and (3)attach them to the record, in addition to any affidavits presented to him.
Mere affidavits of the complainant and his witnesses are thus not sufficient. The examining Judge has to take depositions in writing of the complainant and the witnesses he may produce and to attach them to the record. Such written deposition is necessary in order that the Judge may be able (1) to properly determine the existence or non-existence of the probable cause and (2) to hold liable for perjury the person giving it if it will be found later that his declarations are false.
In this case, the search warrant is tainted with illegality by the failure of the Judge to conform with the essential requisites of taking the depositions in writing and attaching them to the record of the case.
Thus, the search warrant is invalid and illegal.
Note
Deposition is described as any written statement verified by oath; but in its more technical and appropriate sense the meaning of the word is limited to written testimony of a witness given in the course of a judicial proceeding in advance of the trial or hearing upon oral examination. A deposition is the testimony of a witness, put or taken in writing, under oath or affirmation before a commissioner, examiner or other judicial officer, in answer to interlocutory and cross interlocutory, and usually subscribed by the witnesses.
The examination or investigation which must be under oath may not be in public. It may even be held in the secrecy of his chambers. Far more important is that the examination or investigation is not merely routinary but one that is thorough and elicit the required information. To repeat, deposition must be under oath and must be in writing.