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The following are submitted before the Court for resolution:

1.an urgent motion to implement petitioners release filed by petitioner on November 3, 1997;

2.a motion for reconsideration of this Courts resolution of October 27, 1997 filed on November 17, 1997 by the counsels for the prosecution in Crim. Case No. CBU-45303 and 45304;

3.a complaint filed by Judge Martin A. Ocampo, Presiding Judge, Regional Trial Court, Branch 7, Cebu City, against petitioners counsels, Attorneys Raymundo A. Armovit, Ramon R. Teleron and Bernardito Florido, for allegedly deliberately withholding from this Court the omnibus order, supplemental order and order of arraignment he issued on October 17, 1997, thus misleading the Court into issuing its resolution of October 27, 1997; and

4.an urgent motion to change the venue and the officers to conduct the preliminary investigation filed by petitioner on November 17, 1997.

The antecedent facts:

Petitioner Francisco Juan Larranaga is charged with two counts of kidnapping and serious illegal detention docketed as CBU-45303 and CBU-45304 pending before the Regional Trial Court (RTC), Branch 7, Cebu City. He is presently detained at the Bagong Buhay Rehabilitation Center.

On October 1, 1997, petitioner, represented by his mother, Margarita G. Larranaga, filed with this Court a petition for certiorari, prohibition and mandamus with writs of preliminary prohibitory and mandatory injunction. Petitioner alleged that he was denied the right to preliminary investigation and sought to annul the informations as well as the warrant of arrest issued in consequence thereof. In the alternative, petitioner prayed that a preliminary investigation be conducted and that he be released from detention pending the investigation.^[1] Petitioner filed a supplemental petition for habeas corpus or bail on October 6, 1997.^[2]

On October 20, 1997, the Solicitor General filed a manifestation and motion in lieu of comment submitting that petitioner should have been given a regular preliminary investigation before the filing of the informations and the issuance of the warrant of arrest. The Solicitor General recommended that petitioner be accorded his right to preliminary investigation and that he be released from detention during the pendency thereof.^[3]

On October 27, 1997, we issued a resolution holding that petitioner was deprived of his right to preliminary investigation when the City Prosecutor of Cebu insisted that he was only entitled to an inquest investigation.^[4] Hence, we resolved:

1. to set aside the inquest investigation of petitioner and to order the Office of the City Prosecutor of Cebu to conduct a regular preliminary investigation of the petitioner in accord with Section 3, Rule 112;

2. to annul the Order for Detention During The Pendency of the Case issued by Executive Judge Priscila Agana against the petitioner in Crim. Case No. CBU-45303 and 45304;

3. to order the immediate release of petitioner pending his preliminary investigation; and

4. to order the Presiding Judge of Br. VII, RTC of Cebu City to cease and desist from proceeding with the arraignment and trial of petitioner in Crim. Case No. CBU-45303 and 45304, pending the result of petitioners preliminary investigation.

On October 30, 1997, petitioner filed with the RTC of Cebu an urgent ex parte motion praying for his immediate release pursuant to our October 27 resolution.^[5]

The following day, on October 31, 1997, Judge Martin A. Ocampo, Presiding Judge of RTC Branch 7, Cebu City, issued an order deferring the resolution of petitioners motion. It stated that it would be premature to act on the motion since the trial court has not yet received an official copy of our October 27 resolution and that said resolution has not yet attained finality. Furthermore, Judge Ocampo called the Courts attention to the fact that petitioner has been arraigned on October 14, 1997 and waived his right to preliminary investigation.^[6]

On November 3, 1997, petitioner filed with this Court an urgent motion praying, among others, that Judge Ocampo be directed to order petitioners immediate release upon receipt of our October 27 resolution.^[7]

Judge Ocampo filed with this Court a letter-complaint dated November 3, 1997 alleging that petitioners counsels, Attorneys Raymundo A. Armovit, Ramon R. Teleron and Bernardito Florido, deliberately withheld from this Court the omnibus order, supplemental order and order of arraignment, all issued by him on October 14, 1997 in connection with Crim. Case No. CBU-45303 and 45304. Judge Ocampo alleged that by withholding said orders, petitioners counsels unwittingly misled the Court in its October 27 resolution.^[8]

On November 17, 1997, the counsels for the prosecution in Crim. Case No. CBU-45303 and 45304 filed a motion for reconsideration of our October 27 resolution.^[9] They raised the following arguments:

1. Petitioner is charged with a continuing offense; hence, his arrest and detention about two months after the abduction of the victims was lawful;

2. Since petitioner was arrested without a warrant, his case comes within the purview of Section 7 of Rule 112, not under Section 3 thereof;

3. The filing of the informations in court and the issuance of the corresponding warrants of arrest by Executive Judge Priscila S. Agana cured whatever defect there was in petitioners arrest and detention;

4. Petitioner was validly arraigned on October 14, 1997 and the validity of such arraignment was not set aside by this tribunal;

5. The case of Sanchez v. Demetriou squarely applies to the instant case; and

6. Petitioner is no longer a minor pursuant to R.A. 6809.

The Solicitor General, meanwhile, in its comment to petitioners urgent motion for release, modified its stance regarding the validity of petitioners detention.^[10] It stated:

Considering that petitioner was arraigned (a supervening event after the filing of the petition and before the issuance of the TRO), petitioner should be kept in detention without prejudice to his right to preliminary investigation.^[11]

Petitioner also filed on November 17, 1997 an urgent motion to transfer the venue of the preliminary investigation from Cebu City to Manila and to replace the Office of the City Prosecutor of Cebu with the Office of the State Prosecutor, Department of Justice, as the authority to conduct the preliminary investigation because of the extensive coverage of the proceedings by the Cebu media which allegedly influenced the peoples perception of petitioners character and guilt.^[12]

The primary issues to be resolved are: (1) whether petitioner is entitled to a regular preliminary investigation, and (2) whether petitioner should be released from detention pending the investigation.

We resolve the first issue in the affirmative.

The prosecutors argue that petitioner is entitled only to an inquest investigation under Section 7 of Rule 112 since he was lawfully arrested without a warrant under Section 5, Rule 113 of the Revised Rules of Court.

The prosecutors argument is bereft of merit. Section 7 of Rule 112^[13] applies only to persons lawfully arrested without a warrant. Petitioner in this case was, in the first place, not arrested either by a peace officer or a private person. The facts show that on September 15, 1997, some members of the Philippine National Police Criminal Investigation Group (PNP CIG) went to the Center for Culinary Arts in Quezon City to arrest petitioner, albeit without warrant. Petitioner resisted the arrest and immediately phoned his sister and brother-in-law. Petitioners sister sought the aid of Atty. Raymundo A. Armovit. Atty. Armovit, over the phone, dissuaded the police officers from carrying out the warrantless arrest and proposed to meet with them at the CIG headquarters in Camp Crame, Quezon City. The police officers yielded and returned to the CIG headquarters. Petitioner, together with his sister and brother-in-law also went to the CIG headquarters aboard their own vehicle. Atty. Armovit questioned the legality of the warrantless arrest before CIG Legal Officer Ruben Zacarias. After consulting with his superiors, Legal Officer Zacarias ordered to stop the arrest and allowed petitioner to go home. Atty. Armovit made an undertaking in writing that he and petitioner would appear before the Cebu City Prosecutor on September 17, 1997 for preliminary investigation.

An arrest is defined as the taking of a person into custody in order that he may be bound to answer for the commission of an offense.^[14] It is made by an actual restraint of the person to be arrested, or by his submission to the custody of the person making the arrest.^[15] An arrest signifies restraint on person, depriving one of his own will and liberty, binding him to become obedient to the will of the law.^[16] The foregoing facts show no restraint upon the person of petitioner. Neither do they show that petitioner was deprived of his own will and liberty. Hence, Section 7 of Rule 112 does not apply to petitioner.

To be sure, even if petitioner were arrested by the PNP CIG personnel, such arrest would still be illegal because of the absence of a warrant. Section 5 of Rule 113 states when a warrantless arrest is deemed lawful, thus:

Sec. 5.    Arrest without a warrant; when lawful.-A peace officer or a private person may, without a warrant, arrest a person:

(a)When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;

(b)When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and

(c)When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

In cases falling under paragraphs (a) and (b) hereof, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail, and he shall be proceeded against in accordance with Rule 112, Section 7.

It does not appear in the case at bar that petitioner has just committed, is actually committing or is attempting to commit an offense when the police officers tried to arrest him on September 15, 1997. In fact, petitioner was attending classes at the Center for Culinary Arts at that time.

We reject the prosecutors' argument that petitioner was actually committing a crime at the time of the arrest since kidnapping with serious illegal detention is a continuing crime. In the case of Parulan v. Director of Prisons^[17] cited by the prosecutors, kidnapping with illegal detention is considered a continuing crime where the deprivation of liberty is persistent and continuing from one place to another. The facts show that the alleged kidnapping was committed on July 16, 1997. One of the victims, Marijoy Chiong, was found dead in Sitio Tanawan, Barangay Guadalupe, Carcar, Cebu on July 18, 1997, while the other victim, Jacqueline Chiong, remains missing to date. There is no showing that at the time of the arrest on September 15, 1997, Jacqueline Chiong was being detained by petitioner who was then residing in Quezon City. Hence, petitioner may not be considered as continually committing the crime of kidnapping with serious illegal detention at the time of the arrest.

Judge Martin Ocampo of RTC Branch 7, Cebu City, and the state prosecutors assert that petitioner is no longer entitled to a preliminary investigation because he had previously waived his right to such investigation. In his omnibus order dated October 14, 1997, Judge Ocampo held that petitioner waived his right to preliminary investigation when he failed to appear during the preliminary investigation set by the City Prosecutor in the afternoon of September 17, 1997, despite the express warning that "failure of the counsel (to present the petitioner to the Cebu City Prosecutor on said time and date) would be treated as a waiver of his clients right to preliminary investigation."

We disagree. A waiver, whether express or implied, must be made in clear and unequivocal manner. Mere failure of petitioner and his counsel to appear before the City Prosecutor in the afternoon of September 17, 1997 cannot be construed as a waiver of his right to preliminary investigation, considering that petitioner has been vigorously invoking his right to a regular preliminary investigation since the start of the proceedings before the City Prosecutor. At 9:00 in the morning of September 17, 1997, petitioners counsel appeared before the City Prosecutor of Cebu and moved that petitioner be accorded a regular preliminary investigation. The City Prosecutor, however, denied the motion, stating that petitioner is entitled only to an inquest investigation. Petitioner orally moved for a reconsideration, to no avail. Petitioner assailed the decision of the City Prosecutor before the Court of Appeals on a petition for certiorari, prohibition and mandamus. After the Court of Appeals dismissed said petition, petitioner went to this Court, still asserting that he should be accorded a regular preliminary investigation.

Furthermore, petitioner and his counsel cannot be faulted for their refusal to comply with the City Prosecutors directive to appear before him in the afternoon of September 17, 1997 for preliminary investigation. As stated above, petitioners counsel appeared before the City Prosecutor earlier that day and specifically demanded a regular preliminary investigation for his client. The City Prosecutor, however, insisted that petitioner was entitled only to an inquest investigation which he scheduled in the afternoon of the same day. Petitioner and his counsel refused to submit to such investigation as it might be construed as a waiver of petitioners right to a regular preliminary investigation.

Our ruling is not altered by the fact that petitioner has been arraigned on October 14, 1997. The rule is that the right to preliminary investigation is waived when the accused fails to invoke it before or at the time of entering a plea at arraignment.^[18] Petitioner, in this case, has been actively and consistently demanding a regular preliminary investigation even before he was charged in court. Also, petitioner refused to enter a plea during the arraignment because there was a pending case in this Court regarding his right to avail of a regular preliminary investigation.^[19] Clearly, the acts of petitioner and his counsel are inconsistent with a waiver. Preliminary investigation is part of procedural due process. It cannot be waived unless the waiver appears to be clear and informed.

The next question is whether petitioner should be released from detention pending the investigation.

We rule in the negative.

The records show that on September 17, 1997, two informations were filed against petitioner for kidnapping and serious illegal detention.^[20] Executive Judge Priscila Agana issued a warrant of arrest on September 19, 1997.^[21] Petitioner was arrested on September 22, 1997 by virtue of said warrant. We held in Sanchez v. Demetriou^[22] that the filing of charges and the issuance of the warrant of arrest against a person invalidly detained will cure the defect of that detention or at least deny him the right to be released because of such defect. The Court ruled:

The original warrantless arrest of the petitioner was doubtless illegal. Nevertheless, the Regional Trial Court lawfully acquired jurisdiction over the person of the petitioner by virtue of the warrant of arrest it issued on August 26, 1993 against him and the other accused in connection with the rape-slay cases. It was belated, to be sure, but it was nonetheless legal.

Even on the assumption that no warrant was issued at all, we find that the trial court still lawfully acquired jurisdiction over the person of the petitioner. The rule is that if the accused objects to the jurisdiction of the court over his person, he may move to quash the information, but only on that ground. If, as in this case, the accused raises other grounds in the motion to quash, he is deemed to have waived that objection and to have submitted his person to the jurisdiction of the court.

The Court notes that on August 13, 1993, after the petitioner was unlawfully arrested, Judge Lanzanas issued a warrant of arrest against Antonio L. Sanchez in connection with Criminal Cases Nos. 93-124634 to 93-124637 for violation of R.A. No. 6713. Pending the issuance of the warrant of arrest for the rape-slay cases, this first warrant served as the initial justification for his detention.

The Court also adverts to its uniform ruling that the filing of charges, and the issuance of the corresponding warrant of arrest, against a person invalidly detained will cure the defect of that detention or at least deny him the right to be released because of such defect. Applicable by analogy to the case at bar is Rule 102 Section 4 of the Rules of Court that:

Sec. 4. When writ is not allowed or discharge authorized.-If it appears that the person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or judge or by virtue of a judgment or order of a court of record, and that the court or judge had jurisdiction to issue the process, render the judgment, or make the order, the writ shall not be allowed; or if the jurisdiction appears after the writ is allowed, the person shall not be discharged by reason of any informality or defect in the process, judgment, or order. Nor shall anything in this rule be held to authorize the discharge of a person charged with or convicted of an offense in the Philippines or of a person suffering imprisonment under lawful judgment.

In one case, the petitioner sued on habeas corpus on the ground that she had been arrested by virtue of a John Doe warrant. In their return, the respondents declared that a new warrant specifically naming her had been issued, thus validating her detention. While frowning at the tactics of the respondents, the Court said:

The case has, indeed, become moot and academic inasmuch as the new warrant of arrest complies with the requirements of the Constitution and the Rules of Court regarding the particular description of the person to be arrested. While the first warrant was unquestionably void, being a general warrant, release of the petitioner for that reason will be a futile act as it will be followed by her immediate re-arrest pursuant to the new and valid warrant, returning her to the same prison she will just have left. This Court will not participate in such a meaningless charade.

The same doctrine has been consistently followed by the Court more recently in the Umil case.^[23] (citations omitted)

We hold, therefore, that petitioners detention at the Bagong Buhay Rehabilitation Center is legal in view of the information and the warrant of arrest against him. The absence of a preliminary investigation will not justify petitioners release because such defect did not nullify the information and the warrant of arrest against him.^[24] We ruled in Sanciangco, Jr. v. People:^[25]

The absence of preliminary investigations does not affect the courts jurisdiction over the case. Nor do they impair the validity of the information or otherwise render it defective; but, if there were no preliminary investigations and the defendants, before entering their plea, invite the attention of the court to their absence, the court, instead of dismissing the information, should conduct it or remand the case to the inferior court so that the preliminary investigation may be conducted.^[26]

As regards petitioners motion to change the venue and the authority to conduct the preliminary investigation, we are constrained to dismiss the same for lack of jurisdiction. The holding of a preliminary investigation is a function of the Executive Department and not of the Judiciary.^[27] Petitioner should therefore address their plea to the Department of Justice that has control and supervision over the conduct of preliminary investigations.

Nonetheless, even if the Court had jurisdiction over the issue, petitioners motion should still be denied because it failed to allege and prove that the City Prosecutor of Cebu has been actually affected by the publicity. We held in Webb v. De Leon:^[28]

Be that as it may, we recognize that pervasive and prejudicial publicity under certain circumstances can deprive an accused of his due process right to fair trial. Thus, in Martelino, et al. vs. Alejandro, et al., we held that to warrant a finding of prejudicial publicity there must be allegation and proof that the judges have been unduly influenced, not simply that they might be, by the barrage of publicity. In the case at bar, we find nothing in the records that will prove that the tone and content of the publicity that attended the investigation of petitioners fatally infected the fairness and impartiality of the DOJ Panel. Petitioners cannot just rely on the subliminal effects of publicity on the sense of fairness of the DOJ Panel, for these are basically unbeknown and beyond knowing. To be sure, the DOJ Panel is composed of an Assistant Chief State Prosecutor and Senior State Prosecutors. Their long experience in criminal investigation is a factor to consider in determining whether they can easily be blinded by the klieg lights of publicity. Indeed, their 26-page Resolution carries no indubitable indicia of bias for it does not appear that they considered any extra-record evidence except evidence properly adduced by the parties. The length of time the investigation was conducted despite its summary nature and the generosity with which they accommodated the discovery motions of petitioners speak well of their fairness. At no instance, we note, did petitioners seek the disqualification of any member of the DOJ Panel on the ground of bias resulting from their bombardment of prejudicial publicity.^[29]

We further held in People v. Teehankee:^[30]

We cannot sustain appellants claim that he was denied the right to impartial trial due to prejudicial publicity. It is true that the print and broadcast media gave the case at bar pervasive publicity, just like all high profile and high stake criminal trials. Then and now, we rule that the right of an accused to a fair trial is not incompatible to a free press. To be sure, responsible reporting enhances an accuseds right to a fair trial for, as well pointed out, a responsible press has always been regarded as the handmaiden of effective judicial administration, especially in the criminal field x x x. The press does not simply publish information about trials but guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism.

Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The mere fact that the trial of the appellant was given a day-to-day, gavel-to-gavel coverage does not by itself prove that the publicity so permeated the mind of the trial judge and impaired his impartiality. For one, it is impossible to seal the minds of members of the bench from pre-trial and other off-court publicity of sensational criminal cases. The state of the art of our communication system brings news as they happen straight to our breakfast tables and to our bedrooms. These news form part of our everyday menu of the facts and fictions of life. For another, or idea of a fair and impartial judge is not that of a hermit who is out of touch with the world. We have not installed the jury system whose members are overly protected from publicity lest they lose their impartiality. Criticisms against the jury system are mounting and Mark Twain’s wit and wisdom put them all in better perspective when he observed: “When a getleman of high social standing, intellegence, and probity swears that testimony given under the same oath will overweigh with him, street talk and newspaper reports based upon mere hearsay, he is worth a hundred jurymen who will swear to their own ignorance and stupidity xxx. Why could not the jury law be so altered as to give men of brains and honesty an equal chance with fools and miscreants?” Our judges are learned in the law and trained to disregard off-court evidence and on-camera performances of parties to a litigation. Their mere exposure to publications and publicity stunts does not per se fatally infect their impartiality

At best, appellant can only conjure possibility of prejudice on the part of the trial judge due to the barrage of publicity that characterized the investigation and trial of the case. In Martelino, et al. v. Alejandro, et al., we rejected this standard of possibility of prejudice and adopted the test of actual prejudice as we ruled that to warrant a finding of prejudicial publicity, there must be allegation and proof that the judges have been unduly influenced, not simply that they might be, by the barrage of publicity. In the case at bar, the records do not show that the trial judge developed actual bias against appellant as a consequence of the extensive media coverage of the pre-trial and trial of his case. The totality of circumstances of the case does not prove this actual bias and he has not discharged the burden.^[31]

We likewise dismiss the complaint filed by Judge Martin A. Ocampo against Attorneys Raymundo A. Armovit, Ramon R. Teleron and Bernardito Florido for lack of concrete evidence to prove that said lawyers deliberately withheld from the Court the orders he issued with intent to mislead the Court.

Finally, we also deny the motion of the prosecutors to dismiss the petition on the ground that it was not filed by the proper party. The prosecutors argue that petitioner Francisco Juan Larranaga is no longer a minor under R.A. 6809, thus, his mother, Margarita G. Larranaga, does not have the authority to file the instant petition as his representative. It appears, however, that on October 6, 1997, petitioners mother filed a supplemental petition for habeas corpus on his behalf. This converted the petition at bar to one for habeas corpus. Section 3, Rule 102 of the Revised Rules of Court states that a petition for habeas corpus may be filed either by the party for whose relief it is intended or by some person on his behalf.

IN VIEW WHEREOF, we resolve to: (1) REITERATE our order to the Office of the City Prosecutor of Cebu to conduct a regular preliminary investigation of petitioner and to the Presiding Judge of RTC, Branch 7, Cebu City to cease and desist from proceeding with the trial of petitioner until a preliminary investigation shall have been conducted; (2) SET ASIDE our order to immediately release petitioner pending the preliminary investigation and thus DENY petitioners urgent motion to implement petitioners release; (3) DISMISS Judge Ocampos complaint against Attorneys Raymundo A. Armovit, Ramon R. Teleron and Bernardito Florido; and (4) DENY petitioners motion to change the venue and the authority to conduct the preliminary investigation.

SO ORDERED.

Regalado (Chairman), Melo, Mendoza and Martinez, JJ. concur.

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