DE MANGUERRA V. RISOS (REMEDIAL)

As provided in the Rules of Criminal Procedure, all criminal actions are prosecuted under the direction and control of the public prosecutor. Therefore, it behooves the petitioners to implead the People of the Philippines as respondent in the CA case o enable the Solicitor General to comment on the petition.

However, this Court has repeatedly declared that the failure to implead an indispensable party in not a ground for the dismissal of the action. In such a case, the remedy is to implead the non-party on motion of the party or on its own initiative at any stage of the action and/or such times as are just. If the petitioner/plaintiff refuses to implead an indispensable party despite the order of the court, the latter may dismiss the complaint/petitioner for such failure to comply.

In this case, the CA disregarded the procedural flaw by allowing the petition to proceed, in the interest of substantial justice. also noteworthy is that, despite the non-joinder of the People of the Philippines as party-respondent, it managed through the office of the Solicitor General to file its Comment on the petition for certiorari. Thus, the People was given the opportunity to refute the respondent's arguments.

On the more important issue of whether Rule 23 of the Rules of Court applies to the case, we rule in the negative.

It is basic that all witnesses shall give their testimonies at the trial of the case in the presence of the judge. This is especially true in criminal cases in order that the accused may be afforded the opportunity to cross-examine the witnesses pursuant to his constitutional right to confront the witnesses face to face. It also gives the parties and their counsel the chance to propound such questions as they deem material and necessary to support their position or to test the credibility of said witnesses. Lastly, this rule enables the judge to observe the witnesses' demeanor.

This rule however, is not absolute. As exceptions, Rules 23 to 28 of the Rules of Court provide for different MODES OF DISCOVERY that may be resorted to by a party to an action. These rules are adopted either to perpetuate the testimonies of witnesses or as modes of discovery.

In criminal proceedings, Sections 12, 13, and 15 of Rule 119, which took effect 1 December 2000, allow the conditional examination of both the defense and prosecution witnesses.

In the case at bench, in issue is the examination of a prosecution witness who according to the petitioners was too sick to travel and appear before the trial court.

Section 15 of Rule 119 comes into play and it provides:

Section 15. Examination of witness for prosecution - When it satisfactorily appears that a witness for the prosecution is too sick or inform to appear at the trial as directed by the court, or has to leave the Philippines with no definite date of returning, he may forthwith be conditionally examined before the court where the case is pending. Such examination, in the presence of the accused, or in his absence, after reasonable notice to attend the examination has been served on him, shall be conducted in the same manner as an examination at the trial. Failure or refusal of the accused to attend the examination after notice shall be considered a waiver. The statement taken may be admitted in behalf of or against the accused.

Petitioners contend that Concepcion's advanced age and health condition exempt her from this application of Section 15, Rule 119 of the Rules on Criminal Procedure and thus, calls for the application of Rule 23 of the Rules of Civil Procedure.

The contention does not persuade.

the very reason offered by the petitioners to exempt Concepcion from the coverage of Rule 119 is at once the ground which places her squarely within the coverage of the same provision. Undoubtedly, the procedure set forth in Rule 119 applies to the case at bar.

In granting Concepcion's motion and in actually taking her deposition, were the rules complied with? The CA answered in the negative. The appellate court considered the taking of deposition before the Clerk of Court of Makati City erroneous and contrary to the clear mandate of the Rules that the same be made before the court where the case is pending. Accordingly, said the CA, the RTC order was issued with grave abuse of discretion.

To reiterate, the conditional examination of a prosecution witness for the purpose of taking his deposition should be made before the court, or at least before the judge where the case is pending. Such is the clear mandate of the Rules of Criminal Procedure.

While we recognize the prosecution's right to preserve its witness; testimony to prove its case, we cannot disregard rules which are designedc mainly for the protection of the accused's constitutional rights. The giving of testimony during trial is the general rule. The conditional examination of a witness outside of the trial is only an exception, and as such, calls for a strict construction of the rules.