G.R. No. 155041 ; February 14, 2007
Reynaldo de Castro, Petitioner, vs. Hon. Manuel B. Fernandez, Jr., in his official capacity as Presiding Judge of the Regional Trial Court of Las Piñas City, Branch 254, Metro Manila, Respondent.

FACTS

Petitioner Reynaldo de Castro was invited by barangay tanods on 11 June 2002 concerning a sexual assault complaint filed on behalf of a seven-year-old minor, BBB. He was subsequently turned over to the police and underwent inquest proceedings. On 18 June 2002, an Information was filed charging him with rape under Article 266-A, paragraph 2 of the Revised Penal Code, as amended, alleging he inserted his finger into the victim’s vagina.
On 1 July 2002, petitioner filed a Motion for Reinvestigation before the trial court, praying for a preliminary investigation and arguing that the charge should be acts of lasciviousness, not rape, because a “finger” is not an “instrument or object” under the rape law. The trial court denied this motion and a subsequent motion for reconsideration.

ISSUE

The primary issues were: (1) whether a finger constitutes an “instrument or object” under Republic Act No. 8353 (the Anti-Rape Law of 1997); and (2) whether the accused was entitled to a preliminary investigation.

RULING

The Supreme Court dismissed the petition. Procedurally, the petition was flawed. Petitioner filed a special civil action for certiorari under Rule 65 but raised pure questions of law, which are proper for a petition for review under Rule 45. For certiorari, he failed to allege grave abuse of discretion by the trial court. Moreover, such a petition against an RTC order should be filed with the Court of Appeals. Treating it as a Rule 45 petition also failed, as the assailed orders were interlocutory, not final, and petitioner did not comply with formal requirements like submitting a certified true copy of the order and proving timeliness.
On the merits, the Court held petitioner waived his right to a preliminary investigation. Under Rule 112, Section 7, an accused must ask for a preliminary investigation within five days from learning of the filing of the information. The Information was filed on 18 June 2002, his counsel appeared on 25 June, but the motion was only filed on 1 July 2002, beyond the reglementary period.
Regarding the substantive issue, the Court affirmed that a finger is indeed an “instrument or object” under Article 266-A, paragraph 2. The law penalizes sexual assault by inserting “any instrument or object” into the genital orifice. The Court, citing People v. Soriano, explicitly stated that a finger falls within this definition. Thus, the act alleged constitutes rape by sexual assault, not merely acts of lasciviousness. The filing of the rape Information was therefore proper.