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EN BANC

[A.M. No. MTJ-94-1004. August 21, 1996.]

SANGGUNIANG BAYAN OF BATAC, ILOCOS NORTE , complainant, vs .


JUDGE EFREN F. ALBANO , respondent.

SYLLABUS

1. LEGAL AND JUDICIAL ETHICS; JUDGES; PRELIMINARY INVESTIGATION;


GROSS IGNORANCE OF THE PROPER PROCEDURE IN CONDUCTING A PRELIMINARY
INVESTIGATION; CASE AT BAR. — Respondent judge's stance clearly demonstrates his
gross ignorance of the proper procedure in conducting a preliminary investigation. Under
the old rules preliminary investigation conducted by a municipal judge had two stages: (1)
the preliminary examination stage during which the investigating judge determines
whether there is reasonable ground to believe that an offense has been committed and the
accused is probably guilty thereof, so that a warrant of arrest may be issued and the
accused held for trial; and (2) the preliminary investigation proper where the complaint or
information is read to the accused after his arrest and he is informed of the substance of
the evidence adduced against him, after which he is allowed to present evidence in his
favor if he so desires. Presidential Decree 911, upon which the present rules is based,
removed the preliminary examination stage and integrated it into the preliminary
investigation proper. Now, the proceedings consist only of one stage.
2. ID.; RESPONDENT JUDGE'S FAILURE TO TRANSMIT THE RESOLUTION AND
RECORDS OF THE CASES DISREGARDS THE CLEAR MANDATE OF SECTION 5, RULE 112.
— Section 5 of Rule 112 speci es the duty of the investigating judge upon conclusion of
the preliminary investigation: Sec. 5. Duty of investigating judge — Within ten (10) days
after the conclusion of the preliminary investigation, the investigating judge shall transmit
to the provincial or city scal, for appropriate action, the resolution of the case, stating
brie y the ndings of facts and the law supporting his action, together with the entire
records of the case, which shall include: (a) the warrant, if the arrest is by virtue of a
warrant; (b) the a davits and other supporting evidence of the parties; (c) the undertaking
or bail of the accused; (d) the order of release of the accused and cancellation of his bail
bond, if the resolution is for the dismissal of the complaint. Should the provincial or city
scal disagree with the ndings of the investigating judge on the existence of probable
cause, the scal's ruling shall prevail, but he must explain his action in writing furnishing the
parties with copies of his resolution, not later than thirty (30) days from receipt of the
records from the judge. If the accused is detained, the scal shall order his release.
Respondent judge's failure to transmit the resolution and records of the cases disregards
the clear mandate of Section 5 of Rule 112. Under this provision, it is mandatory for the
investigating judge to transmit to the provincial or city prosecutor his resolution
dismissing or admitting the complaint, together with the entire records of the case. When
a municipal judge conducts preliminary investigation, he performs a non-judicial function
as an exception to his usual duties. His ndings, therefore, are subject to review by the
provincial or city prosecutor whose ndings, in turn, may be reviewed by the Secretary of
Justice in appropriate cases. Hence, the investigating judge, after conducting a preliminary
investigation, must perform his ministerial duty to transmit with ten (10) days the
resolution of the case together with the entire records to the provincial or city prosecutor.

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3. ID.; WARRANT OF ARREST; RESPONDENT JUDGE ISSUED SEVERAL
WARRANTS OF ARREST IN VIOLATION OF THE PROCEDURE LAID DOWN IN SECTION 6 OF
RULE 112. — The issuance of a warrant of arrest is addressed to the sound discretion of a
judge. Provided there is no grave abuse of discretion or malice, a mistake on his part in the
determination of probable cause will not subject him to disciplinary action. He is
nevertheless expected to follow strictly the procedure laid down in the rules regarding its
issuance. Failure to comply with such procedure will make him administratively liable. In
the case at bar, respondent judge issued several warrants of arrest without examining the
complainant and his witnesses in writing and under oath, in violation of Section 6 of Rule
112 which provides: Sec. 6. When warrant of arrest may issue. . . . (b) By the Municipal Trial
Court. — If the municipal trial judge conducting the preliminary investigation is satis ed
after an examination in writing and under oath of the complainant and his witnesses in the
form of searching questions and answers, that a probable cause exists and that there is a
necessity of placing the respondent under immediate custody in order not to frustrate the
ends of justice, he shall issue a warrant of arrest.
4. ID.; RESPONDENT JUDGE'S STUBBORN ADHERENCE TO IMPROPER
PROCEDURES IN CONDUCTING PRELIMINARY INVESTIGATION AND ISSUING WARRANTS
OF ARREST MAKES HIM UNFIT TO DISCHARGE THE FUNCTIONS OF A JUDGE; DISMISSAL
FROM THE SERVICE AS PENALTY THEREFOR. — The records show that respondent judge
has violated the rules on preliminary investigation and issuance of a warrant of arrest since
the start of his term as municipal judge in Batac, Ilocos Norte in September 1991. The
gross ignorance of respondent judge has immensely prejudiced the administration of
justice. Parties adversely affected by his rulings dismissing their complaints after
preliminary investigation have been denied their statutory right of review that should have
been conducted by the provincial prosecutor. His practice of issuing warrants of arrest
without examining the complainants and their witnesses is improvident and could have
unnecessarily deprived the accused of their liberty however momentary it may be. Our
Constitution requires that all members of the judiciary must be of proven competence,
integrity, probity and independence. Respondent judge's stubborn adherence to improper
procedures and his constant violation of the constitutional provision requiring him to
personally examine the complainant and the witness in writing and under oath before
issuing a warrant of arrest makes him un t to discharge the functions of a judge. In view
whereof, respondent Judge Efren F. Albano is DISMISSED from the service with forfeiture
of all leave credits and retirement bene ts and with disquali cation for reemployment in
the national and local governments, as well as in any governmental instrumentality or
agency, including government-owned or controlled corporations.
5. REMEDIAL LAW; CRIMINAL PROCEDURE; PRELIMINARY INVESTIGATION FOR
THE DETERMINATION OF PROBABLE CAUSE FOR THE ISSUANCE OF A WARRANT OF
ARREST AND A PRELIMINARY INVESTIGATION TO ASCERTAIN WHETHER A PERSON
SHOULD BE HELD FOR TRIAL; DISTINGUISHED. — A preliminary investigation is conducted
to determine whether there is su cient ground to engender a well-founded belief that a
crime cognizable by the Regional Trial Court has been committed and that the respondent
is probably guilty thereof and should be held for trial. It is an executive, not a judicial
function. It falls under the authority of the prosecutor who is given by law the power to
direct and control all criminal actions. However, since there are not enough scals and
prosecutors to investigate the crimes committed in all the municipalities all over the
country, the government was constrained to assign this function to judges of Municipal
Trial Courts and Municipal Circuit Trial Courts. It is true that the determination of the
existence of probable cause for the issuance of a warrant of arrest is a judicial function
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which is beyond the reviewing power of the prosecutor. However, distinction should be
made between a preliminary inquiry for the determination of probable cause for the
issuance of a warrant of arrest and a preliminary investigation to ascertain whether or not
a person should be held for trial. The rst is a judicial function while the second is an
executive function. Even if the investigating judge nds no su cient ground to issue a
warrant of arrest, he is still duty-bound to transmit the records to the provincial or city
prosecutor. The prosecutor's reviewing power shall affect only his conclusion as to
whether or not a criminal complaint or information should be led against the respondent,
but not his conclusion as to the propriety of issuing a warrant of arrest. EaHDcS

DECISION

PER CURIAM : p

Before us is Resolution No. 56 s. 1994 issued by the Sangguniang Bayan of Batac,


Ilocos Norte calling for the immediate investigation of Judge Efren F. Albano, of the
Municipal Trial Court of Batac, Ilocos Norte. The Sanggunian alleged that:
(1) "the stay of Judge Albano in the Municipality of Batac as the
Presiding Judge of its Municipal Trial Court has been marred by controversial
decisions coupled with habitual absence from o ce which hampered speedy
resolution of cases to the prejudice of (their) constituents," and

(2) "there have been reported cases and complaints from (their)
constituents that due to the indiscretion, ine ciency and incompetence of the
incumbent Presiding Judge, it has clogged the dockets of the court, caused
misery to litigants which resulted to the ling of certiorari cases against the
Presiding Judge." 1

On November 3, 1994, we referred the Sanggunian's resolution to Judge Alejandrino


C. Cabebe of the Regional Trial Court of Batac, Ilocos Norte for investigation, report and
recommendation. 2
Judge Cabebe summoned Mr. Da Vinci Crisostomo, Presiding O cer of the
Sanggunian, to a conference to substantiate their charges against the respondent judge.
Mr. Crisostomo pointed out several irregularities in the way respondent judge conducts
preliminary investigations. Judge Cabebe then examined the criminal dockets of the
Municipal Trial Court of Batac, Ilocos Norte as well as the records of preliminary
investigations conducted in said court. 3
In the course of his investigation, Judge Cabebe uncovered around forty (40)
criminal cases dismissed after preliminary investigation. 4 In all these cases, respondent
judge failed to transmit the resolution and records to the provincial prosecutor upon
conclusion of the proceedings. Respondent judge also archived two (2) cases when the
police failed to arrest the suspects therein, in violation of Section 5 of Rule 112 of the
Revised Rules of Court. In addition, Judge Cabebe discovered that respondent judge
issued warrants of arrest without examining the complainant and his witnesses in writing
and under oath, in violation of Section 6 (b) of Rule 112 of the Revised Rules of Court and
Section 21, Article III of the Constitution. Judge Cabebe recommended the dismissal of
respondent judge from the service with forfeiture of bene ts. 5 The O ce of the Court
Administrator made a similar recommendation in a Memorandum dated May 23, 1996. 6
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It is the stance of respondent judge that the cases cited by Judge Cabebe were all
dismissed at the preliminary examination stage and did not reach the preliminary
investigation proper. Respondent judge averred that before going to the preliminary
investigation proper, he rst conducted a preliminary examination to determine whether
there is probable cause to issue a warrant of arrest. In the cases cited by Judge Cabebe,
respondent judge found no probable cause for the issuance of a warrant, hence he did not
proceed to the preliminary investigation proper. He argued that since there were no
preliminary investigations conducted and concluded, there were no records to be
forwarded to the provincial prosecutor for the ling of the corresponding information. 7
Respondent judge further argued that "(he) may not be held liable for improper disposition
of cases under preliminary investigation because the acts imputed against him pertains
(sic) to his judicial capacity that are not subject to disciplinary power." 8
Respondent judge's stance clearly demonstrates his gross ignorance of the proper
procedure in conducting a preliminary investigation.
Under the old rules, the preliminary investigation conducted by a municipal judge
had two stages: (1) the preliminary examination stage during which the investigating judge
determines whether there is reasonable ground to believe that an offense has been
committed and the accused is probably guilty thereof, so that a warrant of arrest may be
issued and the accused held for trial; and (2) the preliminary investigation proper where
the complaint or information is read to the accused after his arrest and he is informed of
the substance of the evidence adduced against him, after which he is allowed to present
evidence in his favor if he so desires. 9 Presidential Decree 911 , 1 0 upon which the present
rule is based, removed the preliminary examination stage and integrated it into the
preliminary investigation proper. Now, the proceedings consist only of one stage. 1 1
Section 3 of Rule 112 of the Revised Rules of Court outlines the procedure for
conducting a preliminary investigation:
Sec. 3. Procedure. — Except as provided for in Section 7 hereof, no
complaint or information for an offense cognizable by the Regional Trial Court
shall be led without a preliminary investigation having been rst conducted in
the following manner:
(a) The complaint shall state the known address of the respondent
and be accompanied by a davits of the complainant and his witnesses as well
as other supporting documents, in such number of copies as there are
respondents plus two (2) copies for the o cial le. The said a davits shall be
sworn to before any scal, state prosecutor or government o cial authorized to
administer oath, or in their absence or unavailability, a notary public, who must
certify that he has personally examined the a ants and that he is satis ed that
they voluntarily executed and understood their affidavits.

(b) Within ten (10) days after the ling of the complaint, the
investigating o cer shall either dismiss the same if he nds no ground to
continue with the inquiry, or issue a subpoena to the respondent attaching thereto
a copy of the complaint, a davits and other supporting documents. Within ten
(10) days from receipt thereof the respondent shall submit counter-a davits and
other supporting documents. He shall have the right to examine all other evidence
submitted by the complainant.

(c) Such counter-a davits and other supporting evidence submitted


by the respondent shall also be sworn to and certi ed as prescribed in paragraph
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(a) hereof and copies thereof shall be furnished by him to the complainant.
(d) If the respondent cannot be subpoenaed, or if subpoenaed does
not submit counter-a davits within the ten (10) day period, the investigating
officer shall base his resolution on the evidence presented by the complainant.
(e) If the investigating o cer believes that there are matters to be
clarified, he may set a hearing to propound clarificatory questions to the parties or
their witnesses, during which the parties shall be afforded an opportunity to be
present but without the right to examine or cross-examine. If the parties so desire,
they may submit questions to the investigating o cer which the latter may
propound to the parties or witnesses concerned.

(f) Thereafter, the investigation shall be deemed concluded, and the


investigating o cer shall resolve the case within ten (10) days therefrom. Upon
the evidence thus adduced, the investigating o cer shall determine whether or
not there is sufficient ground to hold the respondent for trial.

Section 5 of the same rule speci es the duty of the investigating judge upon
conclusion of the preliminary investigation:
Sec. 5. Duty of investigating judge. — Within ten (10) days after the
conclusion of the preliminary investigation, the investigating judge shall transmit
to the provincial or city scal, for appropriate action, the resolution of the case,
stating brie y the ndings of facts and the law supporting his action, together
with the entire records of the case, which shall include: (a) the warrant, if the
arrest is by virtue of a warrant, if the arrest is by virtue of a warrant; (b) the
a davits and other supporting evidence of the parties; (c) the undertaking or bail
of the accused; (d) the order of release of the accused and cancellation of his bail
bond, if the resolution is for the dismissal of the complaint.

Should the provincial or city scal disagree with the ndings of the
investigating judge on the existence of probable cause, the scal's ruling shall
prevail, but he must explain his action in writing furnishing the parties with copies
of his resolution, not later than thirty (30) days from receipt of the records from
the judge. If the accused is detained, the fiscal shall order his release.

Respondent judge's failure to transmit the resolution and records of the cases
disregards the clear mandate of Section 5 of Rule 112. Under this provision, it is
mandatory for the investigating judge to transmit to the provincial or city prosecutor his
resolution dismissing or admitting the complaint, together with the entire records of the
case.
A preliminary investigation is conducted to determine whether there is su cient
ground to engender a well-founded belief that a crime cognizable by the Regional Trial
Court has been committed and that the respondent is probably guilty thereof and should
be held for trial. 1 2 It is an executive, not a judicial function. It falls under the authority of the
prosecutor who is given by law the power to direct and control all criminal actions.
However, since there are not enough scals and prosecutors to investigate the crimes
committed in all the municipalities all over the country, the government was constrained to
assign this function to judges of Municipal Trial Courts and Municipal Circuit Trial Courts.
1 3 Thus, when a municipal judge conducts preliminary investigation, he performs a non-
judicial function as an exception to his usual duties. His ndings, therefore, are subject to
review by the provincial or city prosecutor whose ndings, in turn, may be reviewed by the
Secretary of Justice in appropriate cases. Hence, the investigating judge, after conducting
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a preliminary investigation, must perform his ministerial duty to transmit within ten (10)
days the resolution of the case together with the entire records to the provincial or city
prosecutor. 1 4
It is true that the determination of the existence of probable cause for the issuance
of a warrant of arrest is a judicial function which is beyond the reviewing power of the
prosecutor. However, distinction should be made between a preliminary inquiry for the
determination of probable cause for the issuance of a warrant of arrest and a preliminary
investigation to ascertain whether or not a person should be held for trial. The rst is a
judicial function while the second is an executive function. 1 5 Even if the investigating judge
nds no su cient ground to issue a warrant of arrest, he is still duty-bound to transmit the
records to the provincial or city prosecutor. The prosecutor's reviewing power shall affect
only his conclusion as to whether or not a criminal complaint or information should be led
against the respondent, but not his conclusion as to the proprietary of issuing a warrant of
arrest.
We now come to the warrants of arrest issued by the respondent judge. The
issuance of a warrant of arrest is addressed to the sound discretion of a judge. Provided
there is no grave abuse of discretion or malice, a mistake on his part in the determination
of probable cause will not subject him to disciplinary action. He is nevertheless expected
to follow strictly the procedure laid down in the rules regarding its issuance. Failure to
comply with such procedure will make him administratively liable. 1 6 In the case at bar,
respondent judge issued several warrants of arrest without examining the complainant
and his witnesses in writing and under oath, in violation of Section 6 of Rule 112 which
provides:
Sec. 6. When warrant of arrest may issue. — . . .
(b) By the Municipal Trial Court . — If the municipal trial judge
conducting the preliminary investigation is satis ed after an examination in
writing and under oath of the complainant and his witnesses in the form of
searching questions and answers, that a probable cause exists and that there is a
necessity of placing the respondent under immediate custody in order not to
frustrate the ends of justice, he shall issue a warrant of arrest.

The records show that respondent judge has violated the rules on preliminary
investigation and issuance of a warrant of arrest since the start of his term as municipal
judge in Batac, Ilocos Norte in September 1991. The gross ignorance of respondent judge
has immensely prejudiced the administration of justice. Parties adversely affected by his
rulings dismissing their complaints after preliminary investigation have been denied their
statutory right of review that should have been conducted by the provincial prosecutor. His
practice of issuing warrants of arrest without examining the complainants and their
witnesses is improvident and could have unnecessarily deprived the accused of their
liberty however momentary it may be. Our Constitution requires that all members of the
judiciary must be of proven competence, integrity, probity and independence. 1 7
Respondent judge's stubborn adherence to improper procedures and his constant
violation of the constitutional provision requiring him to personally examine the
complainant and the witness in writing and under oath before issuing a warrant of arrest
makes him unfit to discharge the functions of a judge. 1 8
IN VIEW WHEREOF, respondent Judge Efren F. Albano is DISMISSED from the
service with forfeiture of all leave credits and retirement bene ts and with disquali cation
for reemployment in the national and local governments, as well as in any governmental
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instrumentality or agency, including government-owned or controlled corporations.
This decision is immediately executory and the respondent judge is further ordered
to cease and desist from discharging the functions of his o ce upon receipt of this
Decision. Let a copy be entered in the personal records of the respondent.
SO ORDERED.
Narvasa, C .J ., Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug,
Kapunan, Mendoza, Francisco, Hermosisima, Jr., Panganiban and Torres, Jr., JJ ., concur.

Footnotes
1. Rollo, p. 4.
2. Rollo, p. 8.
3. Preliminary Report submitted by Judge Alejandrino C. Cabebe, Rollo, pp. 78-79.

4. Crim. Case No. 4480; Crim. Case No. 4482; Crim. Case No. 4500; Crim. Case No. 4511;
Crim. Case No. 4561; Crim. Case No. 4565; Crim. Case No. 4569; Crim. Case No. 4584;
Crim. Case No. 4588; Crim. Case No. 4600; Crim. Case No. 4631; Crim. Case No. 4645;
Crim. Case No. 4646; Crim. Case No. 4651; Crim. Case No. 4653; Crim. Case No. 4654;
Crim. Case No. 4659; Crim. Case No. 4672; Crim. Case No. 4677; Crim. Case No. 4699;
Crim. Case No. 4701; Crim. Case No. 4702; Crim. Case No. 4712; Crim. Case No. 4713;
Crim. Case No. 4714; Crim. Case No. 4738; Crim. Case No. 4744; Crim. Case No. 4767;
Crim. Case No. 4768; Crim. Case No. 4769; Crim. Case No. 477s; Crim. Case No. 4777;
Crim. Case No. 4796; Crim. Case No. 4805; Crim. Case No. 4813; Crim. Case No. 4815;
Crim. Case No. 4821; Crim. Case No. 4824; Crim. Case No. 4827; Crim. Case No. 4830;
Crim. Case No. 4846; Crim. Case No. 4849.
5. Final Report submitted by Judge Alejandrino C. Cabebe, Rollo, pp. 26-34.
6. Rollo, pp. 114-118.
7. Rollo, p. 106.
8. Rollo, p. 103.
9. Biron vs. Cea, 73 Phil. 673.
10. Further Amending Section 1 of Republic Act No. 5180 as Amended by Presidential
Decree No. 77 (took effect on March 23, 1976).
11. Florenz D. Regalado, Remedial Law Compendium Vol. II, 7th Revised Ed. (1995), p. 296.
12. Section 1, Rule 112, Revised Rules of Court.
13. Section 2, Rule 112, Revised Rules of Court; Castillo vs. Villaluz, 171 SCRA 39 (1989);
Salta vs. Court of Appeals 143 SCRA 228 (1986).
14. Balagapo, Jr. vs. Duquilla, 238 SCRA 645 (1994); Cantela vs. Almoradie, 229 SCRA 712
(1994).
15. People vs. Inting, 187 SCRA 788 (1990).
16. Ancog vs. Tan, 227 SCRA 137 (1993).

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17. Section 7 (3), Article VIII, 1987 Constitution.
18. See Balagapo, Jr. vs. Duquilla, 238 SCRA 645 (1994).

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