Petitioner Esmael Orquinaza filed the instant petition for review assailing the Decision dated July 21, 2004 of the Regional Trial Court (RTC) of Calamba, Laguna, Branch 35 in Civil Case No. 3485-2003-C and its Order dated October 4, 2004.

The facts are as follows:

On February 5, 2003, respondent Edelyn Arida, together with her witness, Julio Espinili, executed a sworn statement before the Calamba City Police Station regarding the alleged act of petitioner of kissing her and touching her breasts while she was taking a nap inside the Development Room of the Calamba Model Makers factory.^[1] Arida was an employee of Calamba Model Makers while petitioner was its General Manager. In a letter dated February 5, 2003, SPO4 Filipina Manaig referred the case of sexual harassment to the City Prosecutor of Calamba for evaluation and proper disposition.^[2]

On February 13, 2003, Assistant City Prosecutor Rodel Paderayon issued a subpoena ordering respondent Arida and petitioner to appear at the Office of the Provincial/City Prosecutor for preliminary investigation.^[3]

Petitioner filed a motion to dismiss before the Office of the City Prosecutor, arguing that the affidavits of Arida and Espinili do not contain allegations to constitute the crime of sexual harassment.^[4]

On March 25, 2003, Assistant City Prosecutor Paderayon issued a resolution finding that there was no transgression of the anti-sexual harassment law, but petitioner's act of grabbing complainant's breasts and kissing her is punishable under another law for acts of lasciviousness.^[5] Thus, he filed with the Municipal Trial Court in Cities (MTCC) an information charging petitioner with acts of lasciviousness.  The information states:

That on or about 12:45 o'clock [sic] in the afternoon of January 16, 2003 in Brgy. Halang, City of Calamba and within the jurisdiction of this Honorable Court, the above-named accused, with lewd design, did then and there, wil[l]fully, unlawfully and feloniously grab the breasts and kiss EDELYN ARIDA y PONCE, while the latter was asleep inside the development room of Calamba Model Makers, Inc., without her consent, to her damage and prejudice.

CONTRARY TO LAW.^[6]

The case was docketed as Crim. Case No. 40217-03.

On April 10, 2003, Judge Wilhelmina B. Jorge-Wagan issued a warrant of arrest against petitioner.^[7]

Petitioner filed with the court an omnibus motion praying that (1) the warrant of arrest be recalled, (2) the information be quashed, (3) the arraignment be invalidated and set aside, and (4) the case be dismissed.  He argued primarily that the information for acts of lasciviousness was void as the preliminary investigation conducted by the prosecutor was for sexual harassment and not for acts of lasciviousness.  He claimed to have been deprived of his right to due process.^[8]

The motion was denied in an order dated June 4, 2003.^[9]  The court held that the authority to ascertain what charge or offense should be filed based on the evidence belongs to the public prosecutors and not to the courts.  The court said:

It need not be overemphasized that public prosecutors have the option to ascertain which prosecutions should be initiated on the basis of the evidence at hand.  That a criminal act may have elements common to more than one offense does not rob the prosecutor of that option (or discretion) and mandatorily require him to charge the lesser offense although the evidence before him may warrant prosecution of the more serious one.  Conversely, this holds true if the prosecutor found, after conducting the preliminary investigation, that a lesser offense should be filed instead.  As to limit this authority would eventually undermine the authority of the prosecutor and impose an intolerable burden on the trial court. x x x^[10]

Petitioner filed a motion for reconsideration^[11] which was likewise denied,^[12] prompting him to file a petition for certiorari with the RTC of Calamba City.  Petitioner invoked the same arguments raised before the MTCC.^[13]

The RTC, in its Decision dated July 21, 2004^[14] and its Order dated October 4, 2004,^[15] affirmed the order of the MTCC.

Hence, this petition where petitioner cites the following assignment of errors:

1. The court a quo erred in not finding that information for "acts of lasciviousness" is null and void for lack of preliminary investigation on the offense charged in the information.
   
   
2. The court a quo erred in finding that the Omnibus Motion to Recall Warrant of Arrest, Motion to Quash Information, and to Dismiss the case was not timely interposed.^[16]
   

The petition is unmeritorious.

The Court's ruling in People v. Casiano^[17] applies to the case at bar. In that case, a preliminary investigation was conducted for the charge of estafa against the accused.  However, upon conclusion of the preliminary investigation, the provincial fiscal filed an information for illegal possession and use of a false treasury or bank notes against her.  Counsel for the accused filed a motion to dismiss on the ground that there had been no preliminary investigation of the charge of illegal possession and use of a false bank notes, and that absence of such preliminary investigation affected the jurisdiction of the court. The trial court granted said motion.  This Court, reversing the decision of the trial court, held:

x x x  The issue before us is whether defendant is entitled to a preliminary investigation of the crime of illegal possession and use of a false bank note as charged in the information herein.  The answer to this question depends upon whether or not such crime was included actually in the allegations of the amended complaint filed with the justice of the peace court, regardless of the term used in said pleading to designate the offense charged therein.

In this connection, the offended party, Ricardo Macapagal, averred in the amended complaint that the

accused under false manifestation and fraudulent representations which she made to Ricardo Macapagal, that a check on its face valued at $300.00 and numbered 728681, was good and genuine as it was drawn by the American Bankers Association against the Guaranty Trust Company of New York in favor of Domingo Flores as Payee, sold to Ricardo Macapagal said check for P580.00 Philippine Currency, which manifestations and representations the accused well knew were false and fraudulent and were only made to induce the aforementioned Ricardo Macapagal to buy said check as he in fact bought said check, paying to mentioned accused the stated amount of P580.00, which amount the accused converted unlawfully to her own use and benefit to the damage and prejudice of Ricardo Macapagal in said sum for the reason that the check upon presentation for collection was dishonored on the ground that it was fraudulent.

Thus, complainant alleged in said amended complaint as he did in the original complaint that defendant appellee had knowingly had in her possession, with intent to use, and actually used, a false or falsified bank note or other obligation payable to bearer, which is the crime defined and punished in Article 168, in relation to Article 166, of the Revised Penal Code, and the substance of the charge contained in the information above quoted.

In other words, regardless of whether or not the crime of "estafa" includes or is included in that of illegal possession or use of a false bank note or other obligation payable to bearer, the Court of First Instance of Pangasinan erred in holding that the allegations of the information filed in this case were not included in those of the aforementioned amended complaint and that defendant-appellee was entitled to another preliminary investigation of the charge contained in the information.  It erred, also, in dismissing the case for, even if defendant had a right to such other preliminary investigation, the same was deemed waived upon her failure to invoke it prior to or, at least, at the time of the entry of her plea in the court of first instance.  Independently of the foregoing, the absence of such investigation did not impair the validity of the information or otherwise render it defective.  Much less did it affect the jurisdiction of the court of first instance over the present case.  Hence,  had defendant-appellee been entitled to another preliminary investigation, and had his plea of not guilty upon arraignment not implied a waiver of said right, the court of first instance should have, either conducted such preliminary investigation, or ordered the Provincial Fiscal to make it, in pursuance of section 1687 of the Revised Administrative Code (as amended by Republic Act No. 732), or remanded the record for said investigation to the justice of the peace court, instead of dismissing the case, as it did in the order appealed from.^[18] (citations omitted, emphases supplied)

In the case at bar, the complainant gave the following statement before the Calamba City Police Station:

T: Bakit ka naririto sa himpilan ng pulisya ng Calamba?

S: Para po ireklamo itong si ESMAEL ORQUINAZA sa ginawang panghahalik at panghihipo sa aking suso.

x x x

T: Isalaysay mo nga kung paano ito naganap?

S: Nasa trabaho ko po noon ako sa pabrika at kasalukuyang namamahinga ako at naidlip na nakasubsob sa lamesa sa loob ng DEVELOPMENT ROOM namin ng bigla na lang ako magulat dahil bigla na lang akong dinakot sa aking magkabilang suso mula sa likod nitong si ESMAEL ORQUINAZA tuloy halik sa aking bibig kaya sa gulat ko ay napatayo ako at natigilan na tanging ang nasabi ko ay "SIR, BAKIT HO?" na wala itong sinabi kundi tumawa lang sa akin kung kaya dali-dali akong lumabas at agad ay sinabi ko sa aking kasamahan na si BERT CAPILI at TESSIE CABUHAT na aking kapatid at kasamahan din doon at sinabihan naman ako ng mga ito na "MANAHIMIK KA NA LANG AT TALAGANG GANYAN IYAN, MANYAK IYAN" kaya di na ako kumibo.

T: Ano pa ang sumunod na pangyayari?

S: Noon pong kinasabadohan ay nakasalubong ko ito at dahil kabiruan ko noon ang aking mga kasamahan kung kaya nagtatawanan kami at sinabihan ako nito ng "MUKHANG MASAYA KA DAHIL NAKIPAGHALIKAN KA" na sinagot ko naman ng "MUKHA NYO" at tatawa-tawa pa rin na parang nakakaloko habang palayo ako, kaya noong kinagabihan ay sinabi ko na ang nangyari sa asawa ko kung kaya nag-away kami na hindi naman ako nito naunawaan kung kaya pinalayas pa ako sa bahay kaya doon na ako umuwi sa amin sa Calauan, Laguna at pagpasok ko ng Huwebes ay kinumpronta ako nitong si ESMAEL ORQUINAZA at pinasunod ako sa kanya sa DEVELOPMENT ROOM at tinanong ako na, "ANO BA ANG PROBLEMA, BAKIT ABSENT ANG IYONG ASAWA" tuloy yapos sa akin kung kaya itinulak ko siya at sinabi ko na "IYAN NA HO ANG DAHILAN KAYA KAMI NAG-AWAY MAG-ASAWA DAHIL SINABI KO ANG GINAWA NINYONG PANGHAHALIK AT PANGHIHIPO SA AKIN" na sinabi niya na "WALA YON, I LIKE YOUR FACE, I LIKE YOU, NATUWA LANG AKO SA IYO" na naputol ang usapan namin dahil biglang may dumating. ^[19]

This statement was submitted by the Calamba City Police to the Office of the Prosecutor for the conduct of the preliminary investigation. Clearly, Arida's statement contains all the allegations to support the charge of acts of lasciviousness under Article 336 of the Revised Penal Code, i.e., (1) the offender commits any act of lasciviousness or lewdness, (2) under any of the following circumstances:  (a) using force or intimidation, (b) the offended party is deprived of reason or otherwise unconscious, or (c) offended party is under 12 years of age.  Petitioner had the opportunity to refute all the allegations made by Arida when the Assistant City Prosecutor required him to submit his counter-affidavit.  The conduct of another preliminary investigation for the offense of acts of lasciviousness would be a futile exercise because the complainant would only be presenting the same facts and evidence which have already been studied by the prosecutor.  The Court frowns upon such superfluity which only serves to delay the prosecution and disposition of the criminal complaint.

The designation by the police officer of the offense as sexual harassment when she referred the case to the Office of the Prosecutor is not conclusive as it is within the competence of the prosecutor to assess the evidence submitted and determine therefrom the appropriate offense to be charged.  That is precisely the purpose of the preliminary investigation.  It is a means to allow the parties to present their affidavits and counter-affidavits before the prosecutor to enable the latter to ascertain whether there is sufficient ground to indict the accused and to help him prepare the information to be filed in court. 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.^[20] This function is lodged with the public prosecutors.^[21]  The Court said in the similar case of Pilapil v. Sandiganbayan:^[22]

Petitioner attaches significance to the fact that the preliminary investigation conducted by the Ombudsman against him was under the title of "malversation."  According to him, this is not sufficient to justify the filing of the charge of violation of Anti-Graft and Corrupt Practices Law.

Petitioner loses sight of the fact that preliminary investigation is merely inquisitorial, and it is often the only means of discovering whether a person may be reasonably charged with a crime, to enable the prosecutor to prepare his complaint or information.  The preliminary designation of the offense in the directive to file a counter-affidavit and affidavits of one's witnesses is not conclusive.  Such designation is only a conclusion of law of Deputy Ombudsman Domingo.  The Ombudsman is not bound by the said qualification of the crime.  Rather, he is guided by the evidence presented in the course of a preliminary investigation and on the basis of which, he may formulate and designate the offense and direct the filing of the corresponding information.  In fact, even the designation of the offense by the prosecutor in the information itself has been held inconclusive, to wit:

x x x  the real nature of the criminal charge is determined not from the caption or preamble of the information nor from the specification of the provision of law alleged to have been violated, they being conclusions of law, but by the actual recital of facts in the complaint or information. x x x it is not the technical name given by the Fiscal appearing in the title of the information that determines the character of the crime but the facts alleged in the body of the Information.^[23]  (emphasis supplied)

Also in that case, the Court found inapplicable the ruling in Luciano v. Mariano,^[24] the same case cited by herein petitioner to justify the need for another preliminary investigation, thus:

Petitioner cites the case of Luciano vs. Mariano, in support of its view that a new preliminary investigation is needed.  In said case, however, the original charge for falsification was dismissed for being without any factual or legal basis and the category of the offense was raised as the alleged violation of the Anti-Graft Law was a graver charge.  In the case at bar, there is no dismissal to speak of because under the rules of procedure of the office of the Ombudsman, a complaint may be dismissed only upon the written authority or approval of the Ombudsman.  Besides, even the petitioner admits that the violation of the Anti-Graft law did not raise the category of the offense of malversation.^[25]

The same observation applies in the case at bar.  After the Calamba City Police referred the case to the Office of the Prosecutor, Assistant City Prosecutor Rodel Paderayon conducted a preliminary investigation where he required petitioner and respondent to submit their respective affidavits and supporting evidence.  Based on the submissions of the parties, he concluded that the more proper charge should be acts of lasciviousness, and accordingly filed the appropriate information. Unlike in Luciano v. Mariano,^[26] the Assistant City Prosecutor in this case found sufficient ground to charge petitioner in court.  The complaint against petitioner was not dismissed.  As earlier discussed, the preliminary investigation conducted against petitioner sufficiently complies with his right under Rule 112 of the Revised Rules of Criminal Procedure.

Finally, it is worthy to state that even if it were necessary to conduct another preliminary investigation for the charge of acts of lasciviousness, the lack of such preliminary investigation would still not be a ground to quash the information against the accused.  The Court has often held that the lack of preliminary investigation is not a ground to quash or dismiss a complaint or information.  Much less does it affect the court's jurisdiction.^[27]  The absence of a preliminary investigation does not affect the court's jurisdiction over the case nor impair the validity of the information or otherwise render it defective.  The remedy of the accused in such case is to call the attention of the court to the lack 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.^[28]

We find, therefore, that the RTC did not err in affirming the order of the MTCC which denied the motion of petitioner to quash the information and to recall the warrant of arrest against him.  We also hold that the resolution of the first issue raised by petitioner renders irrelevant the discussion of the second issue, for even if we find the motion to quash to be timely filed, it would still be denied for lack of merit.

IN VIEW WHEREOF, the petition is DENIED.  Costs against petitioner.

SO ORDERED.

Austria-Martinez, Callejo, Sr., and Tinga, JJ., concur.
Chico-Nazario, J., on leave.

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^[1] Rollo, pp. 18-20.

^[2] Rollo, p. 17.

^[3] Rollo, p. 21.

^[4] Rollo, pp. 22-26.

^[5] Rollo, pp. 28-29.

^[6] Rollo, p. 30.

^[7] Rollo, p. 31.

^[8] Rollo, pp. 34-41.

^[9] Rollo, pp. 42-44.

^[10] Rollo, p. 43.

^[11] Rollo, pp. 45-48.

^[12] Rollo, p. 58.

^[13] Rollo, pp. 59-67.

^[14] Rollo, pp. 75-78.

^[15] Rollo, p. 83.

^[16] Rollo, p. 6.

^[17] 1 SCRA 480 (1961).

^[18] Id., pp. 482-483.

^[19] Rollo, p. 18.

^[20] Section 1, Rule 112, Revised Rules of Criminal Procedure.

^[21] Section 2, Rule 112, Revised Rules of Crimiinal Procedure.

^[22] 221 SCRA 349 (1993).

^[23] Id.,  pp. 356-357.

^[24] 40 SCRA 187 (1971).

^[25] Pilapil v. Sandiganbayan, supra note 22,  p. 357.

^[26] Supra note 24.

^[27] KBMBPM v. Dominguez, 205 SCRA 92 (1992).

^[28] Paredes v. Sandiganbayan, 193 SCRA 464 (1991); Pilapil v. Sandiganbayan, supra note 22.