G.R. Nos. 138859-60.

February 22, 2001

ALVAREZ ARO YUSOP, Petitioner, v. The Honorable SANDIGANBAYAN (First Division), Respondent.

DECISION

PANGANIBAN, J.:

The right of a person to preliminary investigation is recognized by the law and is governed by the Rules
of Court. However, the failure to accord this right does not ipso facto result in the dismissal of the
information; the case is merely suspended, and the prosecutor directed to conduct the proper
investigation.

The Case

Before us is a Petition for Certiorari under Rule 65 of the Rules of Court, assailing two Orders 1 of the
Sandiganbayan, 2 both dated February 15, 1999. The first Order rejected the attempt of petitioner to
stop his arraignment in Criminal Case Nos. 24524-25, on the ground that he had been denied the right
to a preliminary investigation. In the assailed second Order, the Sandiganbayan directed that a plea of
not guilty be entered for all the accused, including herein petitioner.

The Facts

Acting on an Affidavit-Complaint 3 filed by a certain Erlinda Fadri, the Office of the Ombudsman-
Mindanao issued an Order 4 dated September 19, 1995, naming the following as respondents:
Benjamin Arao, Frederick Winters, Pelaez Pantaran, Eduardo Dablo, Efren Sissay and the city jail
warden of Pagadian City. The Order also required respondents, within ten days from receipt thereof to
submit their counter-affidavits and other pieces of controverting evidence.

The Office of the Ombudsman for Mindanao issued a Resolution dated January 15,
1998, 5 recommending the prosecution of the aforenamed respondents for violation of Article 269 of
the Revised Penal Code and Section 3-a in relation to Section 3-e of Republic Act No. 3019 as
amended. Significantly, the name of Petitioner Alvarez A. Yusop was included as one of the persons to
be prosecuted, although he was not one of the original respondents mentioned in the Order of
September 19, 1995. Ombudsman Aniano A. Desierto approved the recommendation.

Accordingly, two Informations were filed with the Sandiganbayan. They were docketed as Criminal
Case Nos. 24524 (violation of Section 3-a of RA 3019) and 24525 (unlawful arrest under Article 269 of
the Revised Penal Code).

On April 16, 1998, an Order of Arrest was issued by the Sandiganbayan in Criminal Case No. 24524.
Petitioner, however, posted a bail bond before the Regional Trial Court of Dipolog City on May 20 of the
same year. On the same day, he filed a Motion To Remand Case To The Ombudsman - Mindanao For
Preliminary Investigation.

In a Resolution dated June 8, 1998, the Sandiganbayan denied the Motion of petitioner for his alleged
failure to submit himself to the jurisdiction of the anti-graft court.

On August 8, 1998, petitioner filed a Motion to Dismiss, grounded again on the lack of preliminary
investigation. In an Order dated September 22, 1998, the Sandiganbayan resolved not to take action
on the Motion, because petitioner had not yet submitted himself to its jurisdiction insofar as Criminal
Case No. 24525 was concerned.

On the scheduled arraignment on February 15, 1999, petitioner reiterated his claim that he had not
been accorded preliminary investigation. In its two assailed Orders, the Sandiganbayan rejected his
claim and proceeded with the arraignment.

Hence, this recourse. 6

Ruling of the Sandiganbayan

The Sandiganbayan rejected petitioners plea for preliminary investigation in this wise:

This morning, the accused herein appeared for arraignment duly represented by their counsel. Before
proceeding, Atty. Omar A. Rivera appearing in behalf of accused Yusop informed this court of his
reservations about proceeding with the arraignment this morning, primarily on the ground that accused
Yusop did not undergo preliminary investigation, with the additional claim that he had not been
furnished any notice nor was he informed of the proceedings before the Ombudsman with respect to
these cases. It would appear that one of the reasons [therefor] is that the accused despite notice of
the existence of the accusation against him in Criminal Case No. 24525, had not given any timely
notice nor any statement of any alleged inadequacy of the proceeding regarding the filing of the
Information herein; thus, the Court is not persuaded that the claim of the accused Yusop with regard
to the inadequacy of the proceedings as against him could still be validly entertained at this time. This
is more particularly significant under Section 27 of Republic Act 6770 and x x x Criminal Cases 24524
and 24525 refer to the same incident although the prosecution, for its part, has filed Informations
under different statutes covering the same incident. Thus, the claim of accused Yusop that he was not
notified with respect to one of the cases on an identical set of facts herein is not [of] particular
significance since this would be indulging in a superfluity.

xxx

Thus, in view of all the following, the Court will now proceed to the arraignment of the accused herein.

The Issue

Although the parties did not specify the issue in this case, it is clear from their submissions that they
are asking this Court to resolve this question: Whether the Sandiganbayan, despite being informed of
the lack of preliminary investigation with respect to petitioner, in Criminal Case No. 24524, committed
grave abuse of discretion in proceeding with his arraignment.

The Courts Ruling

The Petition is meritorious in part. While petitioner is entitled to preliminary investigation, the case
against him should not be dismissed.

Main Issue:

Preliminary Investigation

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. 7 The Court explained that the rationale of a preliminary
investigation is to protect the accused from the inconvenience, expense and burden of defending
himself in a formal trial unless the reasonable probability of his guilt shall have been first ascertained in
a fairly summary proceeding by a competent officer. 8cräläwvirtualibräry

The Rules of Court requires such investigation before an information for an offense punishable by at
least four years, two months and one day may be filed in court. 9 The old Rules, on the other hand,
mandates preliminary investigation of an offense cognizable by the regional trial
court. 10cräläwvirtualibräry

Petitioner is charged in Criminal Case No. 24524 with violation of Section 3-a of RA 3019. Such offense
is punishable with, among other penalties, imprisonment of six years and one month to fifteen
years. 11 Under the aforecited Rules, whether in the old or the revised version, he is entitled to a
preliminary investigation.

It is undisputed, however, that before the Information against petitioner was filed, no preliminary
investigation had been conducted. In fact, the Office of the Ombudsman admitted that petitioner was
denied of his right to preliminary investigation. 12cräläwvirtualibräry

We find no basis for the Sandiganbayans ruling that petitioner had not given timely notice nor any
statement of the alleged inadequacy of the proceeding regarding the filing of the Information.
First, there was no showing that petitioner was notified of the charges filed by Erlinda Fadri. As earlier
noted, he had not been named as a respondent in the September 19, 1995 Order of the Office of the
Ombudsman in Mindanao. His name did not even appear in the caption of its January 15, 1998
Resolution, 13 which recommended the filing of charges against the accused. Indeed, in his Compliance
with the August 26, 1998 Sandiganbayan Resolution, 14 Special Prosecution Officer Diosdado V.
Calonge manifested that petitioner was not notified of the proceedings of the preliminary investigation
and was accordingly not given the opportunity to be heard thereon. 15cräläwvirtualibräry

After learning of the filing of the Information against him when he was served a Warrant of Arrest,
petitioner did not dally. He immediately informed the Sandiganbayan that no preliminary investigation
had been conducted in regard to him. Several months later, moments before his arraignment, he
reiterated his prayer that the preliminary investigation be conducted. In this light, the Sandiganbayan
erred in saying that he had not given the court timely notice of this deficiency.

Even assuming that prior to the filing of the Information, petitioner had known that the proceedings
and the investigation against his co-accused were pending, he cannot be expected to know of the
investigators subsequent act of charging him. Precisely, he had not been previously included therein
and, consequently, he had not been notified thereof.

In Go v. Court of Appeals, 16 this Court held 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. Conversely, if the
accused does invoke it before arraignment, as the petitioner did in this case, the right is not waived.

Neither did the filing of a bail bond constitute a waiver of petitioners right to preliminary investigation.
Under Section 26, Rule 114 of the Revised Rules of Criminal Procedure, [a]n application for or
admission to bail shall not bar the accused from challenging the validity of his arrest or the legality of
the warrant issued therefor, or from assailing the regularity or questioning the absence of a
preliminary investigation of the charge against him, provided that he raises them before entering his
plea. x x x.

We stress that the right to preliminary investigation is substantive, not merely formal or technical. To
deny it to petitioner would deprive him of the full measure of his right to due process. 17 Hence,
preliminary investigation with regard to him must be conducted.

We disagree with the Sandiganbayans reliance on Section 27 of Republic Act 6770. 18 This provision
cannot justify the evasion of the requirement set forth in the Rules of Court for conducting preliminary
investigation. The law does not sanction such interpretation, for it deals merely with the finality of
orders, directives and decisions of the Office of the Ombudsman -- not the deprivation of the
substantive right to a preliminary investigation. Moreover, petitioner cannot be bound by the
Ombudsmans January 15, 1998 Resolution, which recommended the filing of charges. He was not a
party to the case and was not accorded any right to present evidence on his behalf.

In any event, even the Ombudsman agrees that petitioner was deprived of this right and believes that
the former has the duty x x x to see to it that the basic rudiments of due process are complied
with. 19 For its part, the Sandiganbayan opted to remain silent when asked by this Court to comment
on the Petition.

Dismissal of the Charges

Not Justified

Petitioner also prays that the cases against him be dismissed for lack of preliminary
investigation. 20 We disagree. In the first place, nowhere in the Revised Rules of Criminal Procedure, or
even the old Rules, is there any mention that this lack is a ground for a motion to
quash. 21 Furthermore, it has been held that responsibility for the absence of a preliminary
investigation does not go to the jurisdiction of the court but merely to the regularity of the
proceedings. 22 We reiterate the following ruling of the Court in People v. Gomez:

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
such investigation, order the fiscal to conduct it or remand the case to the inferior court so that the
preliminary investigation may be conducted.23cräläwvirtualibräry
In sum, Criminal Case No. 24524 must be suspended with respect to petitioner even if the case is
already undergoing trial, because [t]o reach any other conclusion here, that is, to hold that petitioners
rights to a preliminary investigation and to bail were effectively obliterated by evidence subsequently
admitted into the record would be to legitimize the deprivation of due process and to permit the
government to benefit from its own wrong or culpable omission and effectively to dilute important
rights of accused persons well-nigh to the vanishing point. 24cräläwvirtualibräry

WHEREFORE, the Petition is partially GRANTED. The assailed Orders are REVERSED, and the Office of
the Ombudsman is hereby ORDERED to conduct forthwith a preliminary investigation of the charge of
violation of Section 3-a of RA 3019 against Petitioner Alvarez Aro Yusop. The trial on the merits of
Criminal Case No. 24524 shall be SUSPENDED in regard to petitioner until the conclusion of the
preliminary investigation. No pronouncement as to costs.

SO ORDERED.
A.M. No. MTJ-09-1737 February 9, 2011

LYDELLE L. CONQUILLA, Complainant,

vs.
JUDGE LAURO G. BERNARDO, Municipal Trial Court, Bocaue, Bulacan Respondent.

DECISION

CARPIO, J.:

The Case

This is an administrative complaint for usurpation of authority, grave misconduct, and gross ignorance of the law
filed by Lydelle L. Conquilla (complainant) against Judge Lauro G. Bernardo (respondent judge), Presiding
Judge of the Municipal Trial Court (MTC) of Bocaue, Bulacan.

The Facts

In a verified complaint dated 30 July 2008, complainant Conquilla charged respondent judge with usurpation of
authority, grave misconduct, and gross ignorance of the law.

Complainant alleged that on 4 July 2008, a criminal complaint for direct assault was filed against her before the
MTC of Bocaue, Bulacan. The complaint was signed by Police Chief Inspector Rizalino Andaya of the Bocaue
Police Station.

On 8 July 2008, respondent judge conducted a preliminary investigation and found probable cause to hold the
complainant for trial for the crime of direct assault. Respondent judge then issued a warrant of arrest dated 8
July 2008, with the bail fixed at ₱12,000.

On 10 July 2008, upon motion of complainant, respondent judge issued an order reducing the bail for
complainant’s provisional liberty to ₱6,000. On the same date, complainant posted cash bail of ₱6,000 for her
provisional liberty.

Complainant then filed an administrative complaint, alleging that under A.M. No. 05-08-[2]6-SC, first level court
judges no longer have the authority to conduct preliminary investigations. Thus, complainant avers that
respondent judge committed an illegal act constituting gross ignorance of the law and procedure when he
conducted the preliminary investigation and issued the warrant of arrest. Complainant claims that the hasty
issuance of the warrant of arrest was without legal basis and unjustly prejudiced complainant and deprived her
of her liberty. Complainant submits that respondent judge usurped the power of the prosecutor, who was not
even given the chance to comment on complainant’s Motion to Reduce Bail. Furthermore, complainant alleges
that when she learned about the warrant of arrest, she called respondent judge’s wife, who said "she would help
in having the bail reduced to ₱6,000.00 and would have the case for direct assault against herein complainant
dismissed provided herein complainant cancel the wife’s debt of ₱35,000.00 and provided that herein
complainant loan the wife an additional amount of ₱50,000.00."1

In his Comment, respondent judge states that he issued the warrant of arrest in good faith because he was
convinced that there was probable cause and that it was necessary to place the complainant under immediate
custody to prevent a frustration of justice. Although respondent judge knew that the Supreme Court already
amended Rules 112 and 114 of the Revised Rules on Criminal Procedure by removing the conduct of the
preliminary investigation from judges of first level courts, he argues that the power to personally determine
probable cause in the issuance of a warrant of arrest cannot be revoked. Besides, even if such power to
determine probable cause was indeed revoked by the amendment, respondent judge submits that technical
rules can be relaxed if their implementation will result in injustice.

Respondent judge further states that he did not usurp the power of the prosecutor when he reduced the bail
considering that under Section 20 of Rule 114, the court may increase or decrease the bail upon good cause.

Lastly, respondent judge denies any knowledge of the alleged conversation and transaction between
complainant and his wife.

The OCA’s Report and Recommendation

In its Report dated 12 February 2009, the OCA found respondent judge guilty of gross ignorance of the law for
his patent and unjustified violation of the provisions of the Resolution in A.M. No. 05-8-26-SC. The OCA stated
that the Resolution in A.M. No. 05-8-26-SC, which took effect on 3 October 2005, removed the conduct of
investigation from the scope of authority of first level courts judges. Had respondent judge been more prudent in
understanding the pertinent provisions of the Resolution in A.M. No. 05-8-26-SC, which are very clear and
concise, no administrative complaint would have been filed against him.

The OCA, however, found the charge of usurpation of authority without merit. The OCA agreed with respondent
judge that the power to determine the amount of bail is vested in the judge.

The OCA recommended (a) that the administrative complaint against respondent judge be re-docketed as a
regular administrative matter; and (b) that respondent judge be fined in the amount of ₱20,000.00 for gross
ignorance of the law, with a stern warning that a repetition of the same or similar offense shall be dealt with more
severely.

The Ruling of the Court

In this case, respondent judge makes it appear that he merely conducted a preliminary examination for the
purpose of determining whether probable cause exists to justify the issuance of a warrant of arrest. However, the
records of the case clearly show that respondent judge indeed conducted a preliminary investigation on 8 July
2008. After finding probable cause to hold complainant for trial for the crime of direct assault, respondent judge
then issued a warrant for her arrest. That respondent judge conducted a preliminary investigation and not just a
preliminary examination to determine existence of probable cause for the issuance of a warrant of arrest is
evident in his Order dated 8 July 2008, which reads:

ORDER

The undersigned, after personal examination of the witnesses in writing and under oath, finds that a probable
cause exists and there is sufficient ground to hold the accused LYDELLE L. CONQUILLA for trial for the
crime of DIRECT ASSAULT as charged in the complaint. In order not to frustrate the ends of justice, there is
a need to place the accused in immediate custody. Let warrant immediately issue for his [sic] arrest hereby fixing
bail in the amount of P12,000.00 for his provisional liberty.2

SO ORDERED.

Bocaue, Bulacan, July 8, 2008.

(signed)
HON. LAURO G. BERNARDO
Judge

Furthermore, after complainant posted bail on 10 July 2008, respondent judge then issued an Order dated 10
July 2008, ordering the complainant’s release and setting the case for her arraignment on 3 September 2008.

The conduct of preliminary investigation by respondent judge was in direct contravention of A.M. No. 05-8-26-
SC, which took effect on 3 October 2005, amending Rules 112 and 114 of the Revised Rules on Criminal
Procedure by removing the conduct of preliminary investigation from judges of the first level courts. Thus, under
Section 2 of Rule 112, only the following officers are authorized to conduct preliminary investigations: (a)
Provincial or City Prosecutors and their assistants; (b) National and Regional State Prosecutors; and (c) Other
officers as may be authorized by law. Furthermore, Section 5 of Rule 112 provides:

SEC. 5. When warrant of arrest may issue. ‒

(a) By the Regional Trial Court. ‒ Within ten (10) days from the filing of the complaint or information, the
judge shall personally evaluate the resolution of the prosecutor and its supporting evidence. He may
immediately dismiss the case if the evidence on records clearly fails to establish probable cause. If he
finds probable cause, he shall issue a warrant of arrest, or a commitment order when the complaint or
information was filed pursuant to section 6 of this Rule. In case of doubt on the existence of probable
cause, the judge may order the prosecutor to present additional evidence within five (5) days from notice
and the issue must be resolved by the court within thirty (30) days from the filing of the complaint or
information.
 (b) By the Municipal Trial Court. ‒ When required pursuant to the second paragraph of section 1 of
this Rule, the preliminary investigation of cases falling under the original jurisdiction of the
Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal Trial Court or Municipal Circuit
Trial Court SHALL be conducted by the prosecutor. The procedure for the issuance of a warrant of
arrest by the judge shall be governed by paragraph (a) of this section. (Emphasis supplied.)

Clearly, MTC judges are no longer authorized to conduct preliminary investigation.

In this case, the crime charged against complainant was direct assault against a public school teacher, who is a
person in authority under Article 1523 of the Revised Penal Code.4 Under Article 148 of the Revised Penal Code,
when the assault is committed against a person in authority while engaged in the performance of his official
duties or on the occasion of such performance, the imposable penalty is prision correccional in its medium and
maximum periods. The duration of the penalty of prision correccional in its medium and maximum periods is 2
years, 4 months and 1 day to 6 years. Thus, the offense charged against complainant requires the conduct of
preliminary investigation as provided under Section 1 of Rule 112 of the Rules of Court, which reads:

SECTION 1. Preliminary investigation defined; when required. ‒ 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.

Except as provided in Section 6 of this Rule, a preliminary investigation is required to be conducted before
the filing of a complaint or information for an offense where the penalty prescribed by law is at least four
(4) years, two (2) months and (1) day without regard to the fine. (Emphasis supplied.)

It was therefore incumbent upon respondent judge to forward the records of the case to the Office of the
Provincial Prosecutor for preliminary investigation, instead of conducting the preliminary investigation himself.

Rule 3.01, Canon 3 of the Code of Judicial Conduct mandates that a judge shall be faithful to the law and
maintain professional competence. Indeed, competence and diligence are prerequisites to the due performance
of judicial office.5 Section 3, Canon 6 of the New Code of Judicial Conduct6 requires judges to maintain and
enhance their knowledge and skills to properly perform their judicial functions, thus:

SEC. 3. Judges shall take reasonable steps to maintain and enhance their knowledge, skills and personal
qualities for the proper performance of judicial duties, taking advantage for this purpose of the training and other
facilities which should be made available, under judicial control, to judges.

When a law or a rule is basic, judges owe it to their office to simply apply the law. Anything less is gross
ignorance of the law.7 Judges should exhibit more than just a cursory acquaintance with the statutes and
procedural rules,8 and should be diligent in keeping abreast with developments in law and jurisprudence.9

On the alleged promise of respondent judge’s wife that the bail would be reduced provided her ₱35,000 debt will
be cancelled and that complainant grant respondent judge’s wife an additional loan, we find that complainant did
not substantiate her allegation. Nevertheless, the Court notes that although respondent judge denies knowledge
of such transaction between his wife and complainant, respondent judge did not categorically deny his wife’s
debt to complainant. In his Comment, respondent judge states: "Assuming arguendo that there really was a loan
made by his wife, he did not know of such transaction between his wife and the complainant and given this, he
did not allow such transaction to take place."10

Canon 4 of the New Code of Judicial Conduct stresses the importance of propriety and the appearance of
propriety to the performance of all the activities of a judge. Respondent judge should bear in mind that judges
should avoid impropriety and the appearance of impropriety in all of their activities.11 Furthermore, judges and
members of their families are prohibited from asking for or accepting any gift, bequest, loan or favor in relation to
anything done or to be done or omitted to be done by him in connection with the performance of judicial duties.12

On respondent judge’s issuance of the warrant of arrest and reduction of the amount of bail, we find such acts
void for want of jurisdiction. While Rule 114 of the Rules of Court allows a judge to grant bail in bailable offenses
and to increase or decrease bail, it assumes that the judge has jurisdiction over the case. In this case,
respondent judge conducted the preliminary investigation without authority and issued the warrant of arrest.
Thus, these acts are void for want of jurisdiction. The reduction of bail is also void because in the first place,
respondent judge had no jurisdiction over the case itself.
The Court notes that this is respondent judge’s third offense. In 2003, the Court found respondent judge
administratively liable for undue delay in rendering decisions and fined him ₱19,000, with a stern warning that a
repetition of similar acts would be dealt with more severely.13
1avv phi 1

More importantly, in the 2008 case of Santos v. Bernardo,14 the Court found respondent judge guilty of gross
ignorance of the law and basic rules of procedure and fined him ₱20,000, with a stern warning that a repetition
of the same or similar acts would be dealt with more severely.15 The Court found no merit in respondent judge’s
supposition that grave coercion is an offense not subject to preliminary investigation. The Court, however,
emphasized that when the complaint was filed on 3 January 2006, respondent judge no longer had authority to
conduct preliminary investigation by virtue of A.M. No. 05-8-26-SC. Thus, the Court held that respondent judge
should have referred the complaint to the Office of the Provincial Prosecutor instead of issuing the subpoena
directing complainants to appear before the Court.

Under Section 8(9), Rule 140 of the Rules of Court, gross ignorance of the law or procedure is classified as a
serious charge, for which the imposable penalty is any of the following:

1. Dismissal from the service, forfeiture of all or part of the benefits as the Court may determine, and
disqualification from reinstatement or appointment to any public office, including government-owned or
controlled corporation: Provided, however, that the forfeiture of benefits shall in no case include accrued
leave credits;

2. Suspension from office without salary and other benefits for more than three (3) but not exceeding six
(6) months; or

3. A fine of more than ₱20,000.00 but not exceeding ₱40,000.00.16

Considering that this is respondent judge’s third offense, the second of which was also for gross ignorance of the
law, we hold that the penalty of six (6) months suspension from office without salary and other benefits is in
order.17

WHEREFORE, we find respondent Judge Lauro G. Bernardo GUILTY of gross ignorance of the law
and SUSPEND him from office for a period of six (6) months without salary and other benefits, with a stern
warning that a repetition of the same or similar acts shall be dealt with more severely.

SO ORDERED.
 [A.M. NO. RTJ-06-2020 : September 20, 2006]
[Formerly A.M. OCA IPI05-2230-RTJ]

ALEGRIA P. BELTRAN, Petitioner, v. JUDGE OSCAR E. DINOPOL, Executive Judge, Regional Trial Court, Branch
24, Koronadal City, South Cotabato. Respondent.

DECISION

CARPIO MORALES, J.:

On the basis of two criminal complaints against Manuel Beltran, a retired Assistant Provincial Assessor of South Cotabato,
one for Falsification of Public Documents (Criminal Case No. 5876), and the other for Attempted Murder (Criminal Case
No. 5877), filed by the local police before the Regional Trial Court (RTC) of Koronadal City, South Cotabato, Executive
Judge Oscar E. Dinopol (respondent) issued two (2) similarly worded Orders1 finding probable cause to hale the accused
into court and consequently ordering the issuance of warrants for his arrest. Thus each order read:

After reading the Criminal Complaint including the Affidavit of the complainant, the Court is satisfied and finds probable
cause. There being a need, however, to place the accused in custody of the law in order not to frustrate justice, let a
warrant be issued for the arrest of the accused.

On motion of the accused, Judge Laureano T. Alzate of Branch 25 of the Koronadal City RTC to which the cases were
raffled, quashed the criminal complaints on the ground of, inter alia, absence of preliminary investigation.2

Hence, spawned the filing of a November 10, 2004 letter-complaint of Alegria P. Beltran (complainant),3 wife of the
accused, charging respondent with Gross Ignorance of the Law and Abuse of Authority, which letter-complaint was
received by the Office of the Chief Justice on November 17, 2004. A verified complaint essentially reiterating the charges
in the said letter-complaint was subsequently filed by complainant on June 14, 2005.4

Complainant charges that with respondent's acceptance of the criminal complaints lodged by the police, despite the
absence of a preliminary investigation, he "us[ed] his position to sow terror and injustice, . . . violat[ed] men's
constitutional rights and distorted [the] interpretation of the law and/[or] the rules."5

To the complaint, complainant attached photocopies of respondent's orders and other documents material to her
complaint.

In his Comment6 of January 26, 2005, respondent proffers the following explanation:

When he assumed his duties as Executive Judge, the Office of the City Prosecutor had only one prosecutor, Prosecutor
Elfredo Sales, who had no assistant. Prosecutor Sales suffered a stroke, however, and had not fully recovered.

While Prosecutor Ringcar Pinote was designated as Acting City Prosecutor on May 18, 2004, he too suffers from a heart
ailment and often fails to attend court hearings and rarely conducts preliminary investigations. Assistant Provincial
Prosecutor Rene Barrion was designated to assist Prosecutor Pinote, but cases were not assigned or indorsed to him.
After several communications with the Department of Justice and the Regional State Prosecutor requesting the
designation of an active Acting City Prosecutor, Memo Order No. 2004-18 was issued directing Prosecutor Pinote to
attend to all cases, but the latter did not heed the same.7

Respondent further proffers that given the length of time that there was no prosecutor in the Koronadal City RTC, he and
Judge Alzate, Presiding Judge of another branch of the court, agreed, on the basis of the Philippine National Police's
written request, to accept cases directly filed by the police on condition that after the arrest of the accused but before
arraignment, the cases would be remanded to the Prosecutor's Office for "further" preliminary investigation.8

Respondent furthermore explains that the Acting Presiding Judge of the Municipal Trial Court in Cities (MTCC), Koronadal
City holds sessions only once a week and has instructions to his Clerk of Court not to accept cases for preliminary
investigation, there being a designated City/Acting City Prosecutor to conduct the same;9 and that "he exercised good
faith with the principal motive of filling a gap to make the flow and services of the enforcement and prosecution agencies
continuous, for the promotion of an orderly administration of justice."10

Acting on the complaint, the Office of the Court Administrator (OCA) has come up with the following:

EVALUATION: Pars. (a), Sec. 6, Rule 112 of the Revised Rules of Criminal Procedure provides:

"Sec. 6. When warrant of arrest may issue. - (a) By the Regional Trial Court. - Within ten (10) days from the filing of the
complaint or information, the judge shall personally evaluate the resolution of the prosecutor and its supporting
evidence. He may immediately dismiss the case if the evidence on record clearly fails to establish probable cause. If he
finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused has already been arrested
pursuant to a warrant of arrest issued by the judge who conducted the preliminary investigation or when the complaint
or information was filed pursuant to section 7 of this Rule. In case of doubt on the existence of probable cause, the judge
may order the prosecutor to present additional evidence within five (5) days from notice and the issue must be resolved
by the court within thirty (30) days from the filing of the complaint or information."

While the judge of the Regional Trial Court determines the existence of probable cause on the basis of evidence on
record, and may consequently issue warrants of arrest, the same cannot be done without the required preliminary
investigation prior to the filing of the complaint or information. Section 1, Rule 112 of the Revised Rules of Criminal
Procedure provides:

"Section 1. Preliminary investigation defined; when required. - 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 that
the respondent is probably guilty thereof, and should be held for trial.

Except as provided in section 7 of this Rule, a preliminary investigation is required to be conducted before the filing of a
complaint or information for an offense where the penalty prescribed by law is at least four (4) years, two (2) months
and one (1) day without regard to the fine."

Viewed from the above-quoted provision of the Rule, direct filing of complaints or information is not allowed.

Who are authorized to conduct preliminary investigation? Section 2, Rule 112 provides:

"Sec. 2. Officers authorized to conduct preliminary investigations. '

The following may conduct preliminary investigations:

(a) Provincial [or] City Prosecutors and their assistants;

(b) Judges of the Municipal Trial Courts and Municipal Circuit Trial Courts;

(c) National and Regional State Prosecutors; and cralawlibra ry

(d) Other officers as may be authorized by law."

Judges of the Regional Trial Courts are not among those officers authorized to conduct preliminary investigation. Hence,
in the absence of a designated provincial or city prosecutor in RTC, Koronadal City, preliminary investigation may be
conducted by the MTCC, Koronadal City Acting Presiding Judge. It should be stressed herein that the conduct of a
preliminary investigation is not a judicial but an executive prerogative. For which reason, considering that there is a city
prosecutor assigned in Koronadal City, preliminary investigation shall first be conducted by the city prosecutor before the
filing of a proper complaint or information.11 (Underscoring in the original; Emphasis supplied).

The OCA thus recommends that respondent be fined the amount of P20,000.00, with warning that a repetition of the
same or similar act will be dealt with more severely, and that he be directed to refrain from allowing the filing of criminal
complaints or informations which have not been subjected to preliminary investigations and ordering the issuance of
warrants of arrest on the basis thereof.12

The evaluation and recommendation of the OCA are well-taken.

Section 2, Rule 112 of the Revised Rules of Criminal Procedure enumerates who are authorized to conduct preliminary
investigations. RTC judges, who were under the 1964 Rules of Court authorized to conduct preliminary investigations,
have been expressly excluded under said section of the Revised Rules of Criminal Procedure.13

Preliminary investigation of criminal cases is intended to protect the accused from the inconvenience, expense, and
burden of defending himself in a formal trial until the reasonable probability of his guilt has first been ascertained in a
fairly summary proceeding by a competent officer. It also protects the State from having to conduct useless and
expensive trials.14

If, as respondent tries to justify his questioned act, the city prosecutor had been sickly, respondent could have endorsed
the criminal complaint to the Presiding Judge of the MTCC, Koronadal City. The alleged instruction of the MTCC judge not
to accept cases for preliminary investigation did not justify respondent's violation of the Rules. Neither did the alleged
failure of the designated Acting City Prosecutor to attend to all criminal cases in the city. Under those circumstances,
respondent was not without any remedy.

Parenthetically, why would, by respondent's own claim, allow the filing in the RTC of criminal cases which have not been
subjected to preliminary investigations and, after issuing the warrants of arrest, "remand [the cases] to the Prosecutor's
Office for further preliminary investigation"? A case of putting the cart before the horse!

It bears stressing that a judge must be faithful to and proficient in the law. He must maintain professional competence
which is a mark of a good judge.15 Basic legal procedures must be at the palm of his hands.16 When the law is sufficiently
basic, a judge owes it to his office to simply apply it. Anything less erodes the confidence of the public in the courts and it
constitutes gross ignorance of the law.17

WHEREFORE, respondent Judge Oscar E. Dinopol, Regional Trial Court, Branch 24, Koronadal City, South Cotabato is,
for Gross Ignorance of the Law and Abuse of Authority, ORDERED to pay a FINE of Twenty Thousand (P20,000.00)
Pesos with WARNING that a repetition of the same or similar act will be dealt with more severely. He is
further ORDERED to refrain from allowing the filing before the Regional Trial Court of criminal complaints which have not
been subjected to preliminary investigation.

SO ORDERED.
 G.R. No. 240676, March 18, 2019

JIMMY LIM PALACIOS, PETITIONER, v. THE PEOPLE OF THE PHILIPPINES, RESPONDENT.

DECISION

PERLAS-BERNABE, J.:

Assailed in this petition1 for review on certiorari are the Decision2 dated January 18, 2018 and the Resolution3 dated July
11/2018 rendered by the Court of Appeals (CA) in CA-G.R. SP No. 150260, which upheld the Orders dated October 5,
20164 and January 25, 20175 of the Regional Trial Court of Quezon City, Branch 86 (RTC) denying petitioner Jimmy Lim
Palacios' (petitioner) motion for reinvestigation and to recall warrant of arrest.

The Facts

The present case stemmed from a complaint6 for violation of Section 5 (i) of Republic Act No. (RA) 92627 otherwise
known as the "Anti-Violence Against Women and Their Children Act of 2004" filed by Maria Cecilia Ramirez (Ramirez)
against petitioner. Ramirez alleged that she and petitioner were married8 on November 17, 1987 and thereafter, had a
son.9 However, petitioner abandoned them and refused to give them financial support, acts which constitute economic
abuse under Section 5 (i) of RA 9262. Further, in her Sinumpaang-Reklamong Salaysay filed before the Office of the City
Prosecutor, Quezon City (OCP-QC), she alleged that petitioner's residence where he may be served with summons
is Block 3 Lot 24 Turquoise St., Las Piñas Royale Estate, Naga Road, Brgy. Pulang Lupa Dos, Las Piñas City.

In a Resolution10 dated March 19, 2015, the OCP-QC recommended that petitioner be indicted for the crime charged. In
resolving the case based on the evidence proffered solely by Ramirez, the investigating prosecutor held that petitioner
failed to appear during the preliminary investigation and submit his counter-affidavit despite being given ample
opportunity to do so.11 Consequently, the corresponding Information12 was filed before the RTC, docketed as Crim. Case
No. R-QZN-15-04286 and a warrant13 for petitioner's arrest was issued pursuant to the RTC Order14 dated May 12, 2015
(May 12, 2015 Order).

Sometime in September 2016, petitioner, through his lawyer, filed before the RTC an extremely very urgent motion for
reinvestigation and to recall warrant of arrest,15 decrying violation of his right to due process upon learning of the case
that Ramirez filed against him and the RTC's May 12, 2015 Order directing the issuance of a warrant of arrest. He
averred that he only learned of the subject complaint when, in a criminal case that he had filed against her, his lawyer
was furnished with a copy of her Kontra-Salaysay16 where the May 12, 2015 Order was attached as an annex. He further
alleged that he would not have been denied of his right to due process and to a preliminary investigation had Ramirez
not concealed his true and correct address, i.e., Block 9 Lot 6 Pag-Ibig Homes, Talon IV, Las Piñas City. As a result
of the fraud employed by Ramirez, petitioner asserted that he was not able to interpose his valid and meritorious
defenses to show that no probable cause exists to charge him in this case.17

The RTC Ruling

In an Order18 dated October 5, 2016, the RTC denied petitioner's motion, citing A.M. No. 11-6-10-SC19 which states that
a motion for preliminary investigation shall only be granted where the accused was subjected to inquest
proceedings,20 which was not the case here.

Petitioner's motion for reconsideration21 was denied in an Order22 dated January 25, 2017. Thus, he elevated the case to
the CA via a petition for certiorari23 ascribing grave abuse of discretion on the part of the RTC.

The CA Ruling

In a Decision24 dated January 18, 2018, the CA dismissed the petition and affirmed the assailed RTC Orders upon finding
that petitioner was given the opportunity to participate in the preliminary investigation, based on the certification25 of
Assistant City Prosecutor Pedro M. Tresvalles (ACP Tresvalles) dated March 19, 2015. Likewise, it was observed that ACP
Tresvalles had examined Ramirez's statements and the pieces of evidence, and on the basis thereof, found that there
was probable cause. Furthermore, it was determined that the accused was informed of the complaint and evidence
against him and was given an opportunity to submit controverting evidence. Finally, the CA affirmed the RTC's finding
that pursuant to A.M. No. 11-6-10-SC, a motion for preliminary investigation shall only be granted when accused was
subjected to inquest proceedings, which was not so in this case.26

Petitioner's motion for reconsideration27 was denied in a Resolution28 dated July 11, 2018; hence, this petition.

The Issue Before the Court

The issue for the Court's resolution is whether or not the CA erred in upholding the denial of petitioner's motion for
preliminary investigation and to recall warrant of arrest.

The Court's Ruling

The petition is impressed with merit.

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.29 The rationale of preliminary investigation is to "protect the accused from the inconvenience, expense[,] and
burden of defending himself in a formal trial unless the reasonable probability of his guilt shall have been first ascertained
in a fairly summary proceeding by a competent officer."30 Section 1,31 Rule 112 of the Rules of Court requires the conduct
of a preliminary investigation before the filing of a complaint or information for an offense where the penalty prescribed
by law is at least four (4) years, two (2) months and one (1) day without regard to fine.

In this case, although the OCP-QC conducted a preliminary investigation relative to the complaint filed by Ramirez
against petitioner, the latter bewails the lack of notice to him of the proceedings, which resulted in his failure to
participate in the preliminary investigation. He claims that Ramirez committed fraud by intentionally giving the wrong
address in her Sinumpaang-Reklamong Salaysay instead of his true and correct residence address, which is Block 9 Lot
6 Pag-Ibig Homes, Talon IV, Las Piñas City, as evidenced by: (a) a Certification32 dated July 10, 2017 issued by
Barangay Talon Kuatro, Las Piñas City; (b) his Seaman's Service Record Book;33 and (c) their Marriage Contract34 dated
November 17, 1987. To bolster his claim that Ramirez was fully aware of his correct address, he pointed out that in the
petition35 for declaration of nullity of their marriage and the Affidavit of Withdrawal36 dated May 3, 1990, both of which
Ramirez filed, she indicated his address at Block 9 Lot 637 Pag-Ibig Homes, Talon, Las Piñas, Metro Manila. Thus,
petitioner contends that he was denied due process when Ramirez supplied the wrong address when she filed the present
complaint against him.

Due process is comprised of two (2) components – substantive due process which requires the intrinsic validity of the law
in interfering with the rights of the person to his life, liberty, or property, and procedural due process which consists of
the two basic rights of notice and hearing, as well as the guarantee of being heard by an impartial and competent
tribunal.38 The essence of procedural due process is embodied in the basic requirement of notice and a real opportunity
to be heard.39 "Non-observance of these rights will invalidate the proceedings. Individuals are entitled to be notified of
any pending case affecting their interests, and upon notice, they may claim the right to appear therein and present their
side and to refute the position of the opposing parties."40

The Court has punctiliously examined the available records of this case and found no showing that indeed, petitioner had
been duly notified of the charges filed against him by Ramirez or served with a subpoena relative to the preliminary
investigation conducted by the OCP-QC. The Court therefore takes exception to the CA's observation41 that petitioner
failed to prove that he was denied participation in the preliminary investigation, for it would have been impossible for him
to prove such negative allegation. Instead, under the circumstances, it was incumbent upon respondent to show that
petitioner had been duly notified of the proceedings and that, despite notice, he still failed to appear or participate
thereat. In the absence of such proof, the Court therefore finds that petitioner had not been given an opportunity to be
heard. Case law states that "[w]hen service of notice is an issue, the rule is that the person alleging that the notice was
served must prove the fact of service. The burden of proving notice rests upon the party asserting its existence."42

It bears to stress that the right to preliminary investigation is substantive, not merely formal or technical.43 As such, to
deny petitioner's motion for reinvestigation on the basis of the provisions of A.M. No. 11-6-10-SC would be to deprive
him of the full measure of his right to due process44 on purely procedural grounds. Thus, the courts a quo should allow
petitioner to be accorded the right to submit counter-affidavits and evidence in a preliminary investigation for, after all,
"the fiscal is not called by the Rules of Court to wait in ambush; the role of a fiscal is not mainly to prosecute but
essentially to do justice to every man and to assist the court in dispensing that justice."45

Contrary to the CA's conclusion, the fact that ACP Tresvalles certified in the Information that: (a) he had conducted the
preliminary investigation in accordance with law and examined Ramirez's statements and pieces of evidence; and (b) the
accused was informed of the complaint and evidence against him, and thus, given an opportunity to submit controverting
evidence, should not suffice in light of the absence of notice to petitioner regarding the conduct of the preliminary
investigation. Given petitioner's insistence that Ramirez provided the wrong address in her complaint, it behooved the
respondent to show that petitioner was duly notified at the said address, especially in light of the fact that the warrant for
his arrest was returned unserved46 at the said address. Such failure, to the Court's mind, compounded the violation of
petitioner's constitutionally-guaranteed right to due process. Besides, the said certification in the Information is
merely pro forma, and hence, does not enjoy the presumption of regularity in its issuance.47 Consequently, Crim. Case
No. R-QZN-15-04286 pending before the RTC must be suspended until the completion of a preliminary investigation in
order to afford petitioner a chance to present his counter-affidavit and any countervailing evidence.

WHEREFORE, the Decision dated January 18, 2018 and the Resolution dated July 11, 2018 rendered by the Court of
Appeals in CA-G.R. SP No. 150260 upholding the Orders dated October 5, 2016 and January 25, 2017 of the Regional
Trial Court of Quezon City, Branch 86 are REVERSED and SET ASIDE. The Office of the City Prosecutor, Quezon City is
hereby ORDERED to conduct forthwith a preliminary investigation on the charge of violation of Section 5 (i) of Republic
Act No. 9262 against petitioner Jimmy Lim Palacios. The trial on the merits of Crim. Case No. R-QZN-15-04286 shall
be SUSPENDED until the conclusion of the preliminary investigation. No pronouncement as to costs.

SO ORDERED.

THIRD DIVISION

[A.C. NO. 6252 : October 5, 2004]

 JONAR SANTIAGO, Complainant, v. Atty. EDISON V. RAFANAN, Respondent.

DECISION

PANGANIBAN, J.:

Notaries public are expected to exert utmost care in the performance of their duties, which are impressed with
public interest. They are enjoined to comply faithfully with the solemnities and requirements of the Notarial Law.
This Court will not hesitate to mete out appropriate sanctions to those who violate it or neglect observance
thereof.

The Case and the Facts

Before us is a verified Complaint1 filed by Jonar Santiago, an employee of the Bureau of Jail Management and
Penology (BJMP), for the disbarment of Atty. Edison V. Rafanan. The Complaint was filed with the Commission on
Bar Discipline (CBD) of the Integrated Bar of the Philippines (IBP) on January 16, 2001. It charged Atty. Rafanan
with deceit; malpractice or other gross misconduct in office under Section 27 of Rule 1382 of the Rules of Court;
and violation of Canons 1.01, 1.02 and 1.033, Canon 54, and Canons 12.075 and 12.08 of the Code of Professional
Responsibility (CPR).

In his Report, IBP Investigating Commissioner Leland R. Villadolid Jr. summarized the allegations of the
complainant in this wise:

"x x x. In his Letter-Complaint, Complainant alleged, among others, that Respondent in notarizing several

documents on different dates failed and/or refused to: a)make the proper notation regarding the cedula or

community tax certificate of the affiants; b) enter the details of the notarized documents in the notarial register;

and c) make and execute the certification and enter his PTR and IBP numbers in the documents he had notarized,

all in violation of the notarial provisions of the Revised Administrative Code.

"Complainant likewise alleged that Respondent executed an Affidavit in favor of his client and offered the same as

evidence in the case wherein he was actively representing his client. Finally, Complainant alleges that on a certain

date, Respondent accompanied by several persons waited for Complainant after the hearing and after confronting

the latter disarmed him of his sidearm and thereafter uttered insulting words and veiled threats."6

On March 23, 2001, pursuant to the January 19, 2001 Order of the CBD,7 Atty. Rafanan filed his verified
Answer.8 He admitted having administered the oath to the affiants whose Affidavits were attached to the verified
Complaint. He believed, however, that the non-notation of their Residence Certificates in the Affidavits and the
Counter-affidavits was allowed.

He opined that the notation of residence certificates applied only to documents acknowledged by a notary public
and was not mandatory for affidavits related to cases pending before courts and other government offices. He
pointed out that in the latter, the affidavits, which were sworn to before government prosecutors, did not have to
indicate the residence certificates of the affiants. Neither did other notaries public in Nueva Ecija - - some of whom
were older practitioners - - indicate the affiants' residence certificates on the documents they notarized, or have
entries in their notarial register for these documents.

As to his alleged failure to comply with the certification required by Section 3 of Rule 112 9 of the Rules of Criminal
Procedure, respondent explained that as counsel of the affiants, he had the option to comply or not with the
certification. To nullify the Affidavits, it was complainant who was duty-bound to bring the said noncompliance to
the attention of the prosecutor conducting the preliminary investigation.

As to his alleged violation of Rule 12.08 of the CPR, respondent argued that lawyers could testify on behalf of their
clients "on substantial matters, in cases where [their] testimony is essential to the ends of justice." Complainant
charged respondent's clients with attempted murder. Respondent averred that since they were in his house when
the alleged crime occurred, "his testimony is very essential to the ends of justice."

Respondent alleged that it was complainant who had threatened and harassed his clients after the hearing of their
case by the provincial prosecutor on January 4, 2001. Respondent requested the assistance of the Cabanatuan
City Police the following day, January 5, 2001, which was the next scheduled hearing, to avoid a repetition of the
incident and to allay the fears of his clients. In support of his allegations, he submitted Certifications 10 from the
Cabanatuan City Police and the Joint Affidavit11 of the two police officers who had assisted them.
Lastly, he contended that the case had been initiated for no other purpose than to harass him, because he was the
counsel of Barangay Captain Ernesto Ramos in the cases filed by the latter before the ombudsman and the BJMP
against complainant.

After receipt of respondent's Answer, the CBD, through Commissioner Tyrone R. Cimafranca, set the case for
hearing on June 5, 2001, at two o'clock in the afternoon. Notices12 of the hearing were sent to the parties by
registered mail. On the scheduled date and time of the hearing, only complainant appeared. Respondent was
unable to do so, apparently because he had received the Notice only on June 8, 2001.13 The hearing was reset to
July 3, 2001 at two o'clock in the afternoon.

On the same day, June 5, 2001, complainant filed his Reply14 to the verified Answer of respondent. The latter's
Rejoinder was received by the CBD on July 13, 2001.15 It also received complainant's Letter-Request16 to dispense
with the hearings. Accordingly, it granted that request in its Order17 dated July 24, 2001, issued through
Commissioner Cimafranca. It thereby directed the parties to submit their respective memoranda within fifteen
days from receipt of the Order, after which the case was to be deemed submitted for resolution.

The CBD received complainant's Memorandum18 on September 26, 2001. Respondent did not file any.

The IBP's Recommendation

On September 27, 2003, the IBP Board of Governors issued Resolution No. XVI-2003-17219 approving and
adopting the Investigating Commissioner's Report that respondent had violated specific requirements of the
Notarial Law on the execution of a certification, the entry of such certification in the notarial register, and the
indication of the affiant's residence certificate. The IBP Board of Governors found his excuse for the violations
unacceptable. It modified, however, the recommendation20 of the investigating commissioner by increasing the fine
to "P3,000 with a warning that any repetition of the violation will be dealt with a heavier penalty."

The other charges - - violation of Section 27 of Rule 138 of the Rules of Court; and Canons 1.01 to 1.03, 12.07
and 12.08 of the CPR - - were dismissed for insufficiency of evidence.

The Court's Ruling

We agree with the Resolution of the IBP Board of Governors.

Respondent's Administrative Liability

Violation of the Notarial Law

The Notarial Law is explicit on the obligations and duties of notaries public. They are required to certify that the
party to every document acknowledged before them has presented the proper residence certificate (or exemption
from the residence tax); and to enter its number, place of issue and date as part of such certification. 21 They are
also required to maintain and keep a notarial register; to enter therein all instruments notarized by them; and to
"give to each instrument executed, sworn to, or acknowledged before [them] a number corresponding to the one
in [their] register [and to state therein] the page or pages of [their] register, on which the same is
recorded."22 Failure to perform these duties would result in the revocation of their commission as notaries public. 23

These formalities are mandatory and cannot be simply neglected, considering the degree of importance and
evidentiary weight attached to notarized documents. Notaries public entering into their commissions are presumed
to be aware of these elementary requirements.

In Vda. de Rosales v. Ramos,24 the Court explained the value and meaning of notarization as follows:

"The importance attached to the act of notarization cannot be overemphasized. Notarization is not an empty,

meaningless, routinary act. It is invested with substantive public interest, such that only those who are qualified or

authorized may act as notaries public. Notarization converts a private document into a public document thus

making that document admissible in evidence without further proof of its authenticity. A notarial document is by

law entitled to full faith and credit upon its face. Courts, administrative agencies and the public at large must be

able to rely upon the acknowledgment executed by a notary public and appended to a private instrument."

For this reason, notaries public should not take for granted the solemn duties pertaining to their office. Slipshod
methods in their performance of the notarial act are never to be countenanced. They are expected to exert utmost
care in the performance of their duties,25 which are dictated by public policy and are impressed with public
interest.
It is clear from the pleadings before us - - and respondent has readily admitted - - that he violated the Notarial
Law by failing to enter in the documents notations of the residence certificate, as well as the entry number and the
pages of the notarial registry.

Respondent believes, however, that noncompliance with those requirements is not mandatory for affidavits
relative to cases pending before the courts and government agencies. He points to similar practices of older
notaries in Nueva Ecija.

We cannot give credence to, much less honor, his claim. His belief that the requirements do not apply to affidavits
is patently irrelevant. No law dispenses with these formalities. Au contraire, the Notarial Law makes no
qualification or exception. It is appalling and inexcusable that he did away with the basics of notarial procedure
allegedly because others were doing so. Being swayed by the bad example of others is not an acceptable
justification for breaking the law.

We note further that the documents attached to the verified Complaint are the Joint Counter-Affidavit of
respondent's clients Ernesto Ramos and Rey Geronimo, as well as their witnesses' Affidavits relative to Criminal
Case No. 69-2000 for attempted murder, filed by complainant's brother against the aforementioned clients. These
documents became the basis of the present Complaint.

As correctly pointed out by the investigating commissioner, Section 3 of Rule 112 of the Rules of Criminal
Procedure expressly requires respondent as notary - - in the absence of any fiscal, state prosecutor or government
official authorized to administer the oath - - to "certify that he has personally examined the affiants and that he is
satisfied that they voluntarily executed and understood their affidavits." Respondent failed to do so with respect to
the subject Affidavits and Counter-Affidavits in the belief that - - as counsel for the affiants - - he was not required
to comply with the certification requirement.

It must be emphasized that the primary duty of lawyers is to obey the laws of the land and promote respect for
the law and legal processes.26 They are expected to be in the forefront in the observance and maintenance of the
rule of law. This duty carries with it the obligation to be well-informed of the existing laws and to keep abreast
with legal developments, recent enactments and jurisprudence.27 It is imperative that they be conversant with
basic legal principles. Unless they faithfully comply with such duty, they may not be able to discharge competently
and diligently their obligations as members of the bar. Worse, they may become susceptible to committing
mistakes.

Where notaries public are lawyers, a graver responsibility is placed upon them by reason of their solemn oath to
obey the laws.28 No custom or age-old practice provides sufficient excuse or justification for their failure to adhere
to the provisions of the law. In this case, the excuse given by respondent exhibited his clear ignorance of the
Notarial Law, the Rules of Criminal Procedure, and the importance of his office as a notary public.

Nonetheless, we do not agree with complainant's plea to disbar respondent from the practice of law. The power to
disbar must be exercised with great caution.29 Disbarment will be imposed as a penalty only in a clear case of
misconduct that seriously affects the standing and the character of the lawyer as an officer of the court and a
member of the bar. Where any lesser penalty can accomplish the end desired, disbarment should not be
decreed.30 Considering the nature of the infraction and the absence of deceit on the part of respondent, we believe
that the penalty recommended by the IBP Board of Governors is a sufficient disciplinary measure in this case.

Lawyer as Witness for Client

Complainant further faults respondent for executing before Prosecutor Leonardo Padolina an affidavit corroborating
the defense of alibi proffered by respondent's clients, allegedly in violation of Rule 12.08 of the CPR: "A lawyer
shall avoid testifying in behalf of his client."

Rule 12.08 of Canon 12 of the CPR states:

"Rule 12.08 - A lawyer shall avoid testifying in behalf of his client, except:

a) on formal matters, such as the mailing, authentication or custody of an instrument and the like;

b) on substantial matters, in cases where his testimony is essential to the ends of justice, in which event he must,

during his testimony, entrust the trial of the case to another counsel."

Parenthetically, under the law, a lawyer is not disqualified from being a witness,31 except only in certain cases
pertaining to privileged communication arising from an attorney-client relationship.32

The reason behind such rule is the difficulty posed upon lawyers by the task of dissociating their relation to their
clients as witnesses from that as advocates. Witnesses are expected to tell the facts as they recall them. In
contradistinction, advocates are partisans - - those who actively plead and defend the cause of others. It is
difficult to distinguish the fairness and impartiality of a disinterested witness from the zeal of an advocate. The
question is one of propriety rather than of competency of the lawyers who testify for their clients.

"Acting or appearing to act in the double capacity of lawyer and witness for the client will provoke unkind criticism
and leave many people to suspect the truthfulness of the lawyer because they cannot believe the lawyer as
disinterested. The people will have a plausible reason for thinking, and if their sympathies are against the lawyer's
client, they will have an opportunity, not likely to be neglected, for charging, that as a witness he fortified it with
his own testimony. The testimony of the lawyer becomes doubted and is looked upon as partial and untruthful." 33

Thus, although the law does not forbid lawyers from being witnesses and at the same time counsels for a cause,
the preference is for them to refrain from testifying as witnesses, unless they absolutely have to; and should they
do so, to withdraw from active management of the case.34

Notwithstanding this guideline and the existence of the Affidavit executed by Atty. Rafanan in favor of his clients,
we cannot hastily make him administratively liable for the following reasons:

First, we consider it the duty of a lawyer to assert every remedy and defense that is authorized by law for the

benefit of the client, especially in a criminal action in which the latter's life and liberty are at stake. 35 It is the

fundamental right of the accused to be afforded full opportunity to rebut the charges against them. They are

entitled to suggest all those reasonable doubts that may arise from the evidence as to their guilt; and to ensure

that if they are convicted, such conviction is according to law.

Having undertaken the defense of the accused, respondent, as defense counsel, was thus expected to spare no

effort to save his clients from a wrong conviction. He had the duty to present - - by all fair and honorable means -

- every defense and mitigating circumstance that the law permitted, to the end that his clients would not be

deprived of life, liberty or property, except by due process of law.36

The Affidavit executed by Atty. Rafanan was clearly necessary for the defense of his clients, since it pointed out
the fact that on the alleged date and time of the incident, his clients were at his residence and could not have
possibly committed the crime charged against them. Notably, in his Affidavit, complainant does not dispute the
statements of respondent or suggest the falsity of its contents.

Second, paragraph (b) of Rule 12.08 contemplates a situation in which lawyers give their testimonies during the
trial. In this instance, the Affidavit was submitted during the preliminary investigation which, as such, was merely
inquisitorial.37 Not being a trial of the case on the merits, a preliminary investigation has the oft-repeated purposes
of securing innocent persons against hasty, malicious and oppressive prosecutions; protecting them from open
and public accusations of crime and from the trouble as well as expense and anxiety of a public trial; and
protecting the State from useless and expensive prosecutions.38 The investigation is advisedly called preliminary,
as it is yet to be followed by the trial proper.

Nonetheless, we deem it important to stress and remind respondent to refrain from accepting employment in any
matter in which he knows or has reason to believe that he may be an essential witness for the prospective client.
Furthermore, in future cases in which his testimony may become essential to serve the "ends of justice," the
canons of the profession require him to withdraw from the active prosecution of these cases.

No Proof of Harassment

The charge that respondent harassed complainant and uttered insulting words and veiled threats is not supported
by evidence. Allegation is never equivalent to proof, and a bare charge cannot be equated with liability. 39 It is not
the self-serving claim of complainant but the version of respondent that is more credible, considering that the
latter's allegations are corroborated by the Affidavits of the police officers and the Certifications of the Cabanatuan
City Police.

WHEREFORE, Atty. Edison V. Rafanan is found guilty of violating the Notarial Law and Canon 5 of the Code of
Professional Responsibility and is hereby FINED P3,000 with a warning that similar infractions in the future will be
dealt with more severely.

SO ORDERED.
 [ADM. CASE NO. 7549 : August 29, 2008]

AURELIO M. SIERRA, Complainant, v. JHOSEP Y. LOPEZ, City Prosecutor of Manila,

EUFROCINO SULLA, 1st Assistant City Prosecutor (ACP), ACP ALEXANDER T. YAP, ACP MARLO
CAMPANILLA, and ACP ARMANDO VELASCO, Respondents.

DECISION

NACHURA, J.:

The instant controversy arose from a complaint for dereliction of duty and gross ignorance of the law
by Aurelio M. Sierra against City Prosecutor of Manila Jhosep Y. Lopez, 1 st Assistant City Prosecutor
(ACP) Eufrocino Sulla, Assistant City Prosecutors Alexander Yap, Marlo Campanilla and Armando
Velasco.

The facts of the case are as follows:

On July 27, 2006 and August 1, 2006, complainant Aurelio M. Sierra filed several cases before the
Office of the City Prosecutor of Manila for Misrepresentation through Deceit and Syndicated Large Scale
Fraud in Land Titling with Conspiracy, Land Grabbing, Falsification of Public Document and Economic
Sabotage.

These cases were first assigned to ACP Alexander T. Yap. The principal respondents therein, namely:
Alfredo C. Ramos, Presentacion Ramos, George S.K. Ty, Atty. Emmanuel Leonardo, and a certain Mr.
Cayaban, did not appear during the scheduled hearing. However, Alfredo and Presentacion Ramos
appeared in the morning of that day ahead of the complainant in which they submitted their respective
counter-affidavits, subscribed and sworn to before ACP Yap. The respondents asked that they be
allowed to submit their counter-affidavits ahead of the scheduled hearing because they had an urgent
matter to attend to in the afternoon. In the case of George S.K. Ty and Mr. Cayaban, their respective
counter-affidavits were submitted by their lawyers during the scheduled hearing in the afternoon,
already subscribed and sworn to before a Pasig Prosecutor. Atty. Leonardo did not submit any counter-
affidavit.

Because of ACP Yap's failure to require the presence of respondents in said cases simultaneously with
the complainant, Mr. Sierra asked for the prosecutor's inhibition. The cases were then re-raffled to the
respondent ACP Marlo Campanilla who likewise did not require the presence of the respondents in the
preliminary investigation. Because of this, he too was asked to inhibit from the cases by complainant.

The cases were then re-raffled to ACP Armando Velasco who also handled the cases in the same
manner as the two other prosecutors before him. City Prosecutor Jhosep Y. Lopez and 1 st ACP
Eufrocino A. Sulla affirmed the correctness of the manner in which their investigating prosecutors
handled the cases.

On April 26, 2007, Sierra filed a complaint with the Supreme Court for dereliction of duty and gross
ignorance of the law against City Prosecutor Lopez, 1st ACP Sulla, ACP Yap, ACP Campanilla, and ACP
Velasco.

In his complaint, Sierra raises the following questions of law: (1) whether the parties must appear
together before the investigating prosecutor during preliminary investigation; (2) whether the counter-
affidavits of the respondents should be sworn to only before the investigating prosecutor; and (3)
whether the investigating prosecutor erred in denying the request of the complainant for clarificatory
questioning.

The Supreme Court Third Division then issued a Resolution dated July 25, 2008 requiring respondents
to comment on the complaint.

In compliance with the Honorable Court's order, respondents filed their Comment dated March 7, 2008
stating that they handled the cases properly and in accordance with what was provided by law. They
also argued that they had not committed any dereliction of duty and gross ignorance of the law.

We find no merit in the complaint.

Rule 112, particularly Section 3 of the Rules of Court, lays down the basic procedure in preliminary
investigation, as follows:

Sec. 3. Procedure. - The preliminary investigation shall be conducted in the following manner:

(a) The complaint shall state the address of the respondent and shall be accompanied by the affidavits
of the complainant and his witnesses, as well as other supporting documents to establish probable
cause. They shall be in such number of copies as there are respondents, plus two (2) copies for the
official file. The affidavits shall be subscribed and sworn to before any prosecutor or government official
authorized to administer oath, or, in their absence or unavailability, before a notary public, each of
whom must certify that he personally examined the affiants and that he is satisfied that they
voluntarily executed and understood their affidavits.

(b) Within ten (10) days after the filing of the complaint, the investigating officer shall either dismiss it
if he finds no ground to continue with the investigation, or issue a subpoena to the respondent
attaching to it a copy of the complaint and its supporting affidavits and documents.

The respondent shall have the right to examine the evidence submitted by the complainant which he
may not have been furnished and to copy them at his expense. If the evidence is voluminous, the
complainant may be required to specify those which he intends to present against the respondent, and
these shall be made available for examination or copying by the respondent at his expense.

Objects as evidence need not be furnished a party but shall be made available for examination,
copying, or photographing at the expense of the requesting party.

(c) Within ten (10) days from receipt of the subpoena with the complaint and supporting affidavits and
documents, the respondent shall submit his counter-affidavit and that of his witnesses and other
supporting documents relied upon for his defense. The counter-affidavits, shall be subscribed and
sworn to and certified as provided in paragraph (a) of this section, with copies thereof furnished by him
to the complainant. The respondent shall not be allowed to file a motion to dismiss in lieu of a counter-
affidavit.

(d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits
within the ten (10) day period, the investigating officer shall resolve the complaint based on the
evidence presented by the complainant.

(e) The investigating officer may set a hearing if there are facts and issues to be clarified from a party
or a witness. The parties can be present at the hearing but without the right to examine or cross-
examine. They may, however, submit to the investigating officer questions which may be asked to the
party or witness concerned.

The hearing shall be held within ten (10) days from submission of the counter-affidavits and other
documents or from the expiration of the period for their submission. It shall be terminated within five
(5) days.

(f) Within ten (10) days after the investigation, the investigating officer shall determine whether or not
there is sufficient ground to hold the respondent for trial.

This provision of the Rules does not require a confrontation between the parties. Preliminary
investigation is ordinarily conducted through submission of affidavits and supporting documents,
through the exchange of pleadings.

In Rodis, Sr. v. Sandiganbayan1 we ruled that -

(the New Rules on Criminal Procedure) do not require as a condition sine qua non to the validity of the
proceedings ( in the preliminary investigation) the presence of the accused for as long as efforts to
reach him were made, and an opportunity to controvert evidence of the complainant is accorded him.
The obvious purpose of the rule is to block attempts of unscrupulous respondents to thwart the
prosecution of offenses by hiding themselves or by employing dilatory tactics.
Since confrontation between the parties is not imperative, it follows that it is not necessary that the
counter-affidavit of respondent be sworn to before the investigating prosecutor himself. It can be
sworn to before another prosecutor. In fact, this is specifically provided in paragraph (c) of Sec. 3,
which states that the "counter-affidavit shall be subscribed and sworn to and certified as provided in
paragraph (a) of this section x x x"; and paragraph (a), provides:

the affidavits shall be subscribed and sworn to before any prosecutor or government official or in their
absence or unavailability, before a notary public x x x.

Lastly, we hold that the investigating prosecutors did not abuse their discretion when they denied the
request of the complainant for the conduct of clarificatory questioning. Under paragraph (e) of Section
3 above, the conduct of clarificatory questioning is discretionary upon the prosecutor. Indeed, we
already held in Webb v. De Leon2 that the decision to call witnesses for clarificatory questions is
addressed to the sound discretion of the investigator, and the investigator alone.

WHEREFORE, premises considered, the complaint is DENIED for lack of merit.

SO ORDERED.
 SECOND DIVISION

[G.R. NO. 155041 : February 14, 2007]

REYNALDO DE CASTRO, Petitioner, v. 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.

DECISION

CARPIO, J.:

The Case

This petition for certiorari 1 assails the Orders dated 5 and 28 August 2002 of Judge Manuel B.
Fernandez, Jr., Regional Trial Court of Las Piñas City, Branch 254 (trial court) in Criminal Case No. 02-
0527.2 The 5 August 2002 Order denied petitioner Reynaldo de Castro's (petitioner) Motion for
Reinvestigation and the 28 August 2002 Order denied petitioner's Motion for Reconsideration.

The Facts

On the evening of 11 June 2002, barangay tanods invited petitioner to the barangay hall in connection
with a complaint for sexual assault filed by AAA,3 on behalf of her daughter BBB.4 Petitioner accepted
the invitation without any resistance.ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

On 12 June 2002, the barangay officials turned over petitioner to the Las Piñas City Police Station.

On 13 June 2002, the police indorsed the complaint to the city prosecutor of Las Piñas City for inquest
proceedings.5 Later, the state prosecutor issued a commitment order for petitioner's detention. 6

On 18 June 2002, State Prosecutor Napoleon A. Monsod filed an Information against petitioner for the
crime of rape. The Information reads:

The undersigned State Prosecutor II accuses REYNALDO DE CASTRO y AVELLANA of the crime of Rape
(Art. 266-A, par. 2 in relation to Art. 266-B, Revised Penal Code, as amended by R[.]A[.] [No.] 8353
and R[.]A[.] [No.] 7659) and in relation with R[.]A[.] [No.] 7610, committed as follows:

That on or about the 11th day of June 2002 or prior thereto, in the City of Las Piñas, Philippines and
within the jurisdiction of this Honorable Court, the above-named accused, with lewd designs, did then
and there willfully, unlawfully and feloniously commits [sic] act[s] of sexual assault with one [BBB], a
seven (7) years [sic] old minor, by touching and inserting his finger into her vagina against her will and
consent.

CONTRARY TO LAW.7

On 1 July 2002, petitioner filed a Motion for Reinvestigation praying that the trial court issue an order
directing the Office of the Prosecutor of Las Piñas City to conduct a preliminary investigation in
accordance with Rule 112 of the Rules of Court. Petitioner also asked that the charge filed against him
be amended to acts of lasciviousness instead of rape since "fingering" is not covered under Article 266-
A, paragraph 2 of Republic Act No. 8353 (RA 8353).8 In the Order dated 5 August 2002, the trial court
denied petitioner's Motion for Reinvestigation.

On 22 August 2002, petitioner filed a Motion for Reconsideration. In the Order dated 28 August 2002,
the trial court denied the motion. Hence, this petition.

The Issues

Petitioner raises the following issues:

1. WHETHER A FINGER CONSTITUTES AN OBJECT OR INSTRUMENT IN THE CONTEMPLATION OF
REPUBLIC ACT NO. 8353; andcralawlibrary

2. WHETHER THE ACCUSED IS ENTITLED TO A PRELIMINARY INVESTIGATION IN FULL ACCORD WITH

RULE 112 OF THE RULES ON CRIMINAL PROCEDURE.9

The Court's Ruling

We dismiss the petition.

At the outset, we declare that petitioner availed of the wrong remedy in assailing the trial court's
Orders. Petitioner filed before this Court a petition captioned "Petition for Certiorari" and specifically
stated that the petition is based on Rule 65. However, petitioner also stated that the issues raised are
pure questions of law,10 which properly fall under Rule 45.

Under Rule 65, a special civil action for certiorari lies where a court has acted without or in excess of
jurisdiction or with grave abuse of discretion and there is no appeal, nor any plain, speedy and
adequate remedy in the ordinary course of law. 11 In this case, petitioner failed to allege any
circumstance which would show that in issuing the assailed Orders, the trial court acted without or in
excess of jurisdiction or with grave abuse of discretion. Moreover, following the hierarchy of courts, a
special civil action for certiorari assailing an order of the Regional Trial Court should be filed with the
Court of Appeals and not with this Court.12 Petitioner did not raise any special reason or compelling
circumstance that would justify direct recourse to this Court. 13

On the other hand, if the petition is to be treated as a Petition for Review under Rule 45, the petition
would fail because only judgments or final orders that completely dispose of the case can be the
subject of a Petition for Review .14 In this case, the assailed Orders are only interlocutory orders.
Petitioner should have proceeded with the trial of the case and if the trial court renders an unfavorable
verdict, petitioner should assail the Orders as part of an appeal that may eventually be taken from the
final judgment to be rendered in this case.15

Additionally, the petition will not prosper because petitioner failed to comply with the requirements
under Rule 45 as to the documents, and their contents, which should accompany the petition.
Petitioner failed to submit a duplicate original or certified true copy of the 28 August 2002 Order
denying the Motion for Reconsideration.16 Petitioner also failed to show the timeliness of the filing of
the petition because the petition did not state the date when petitioner received the 28 August 2002
Order denying the Motion for Reconsideration.17

Hence, on the issue alone of the propriety of the remedy sought by petitioner, this petition must fail.

On the merits, petitioner is deemed to have waived his right to a preliminary investigation. Under Section 7 of Rule 112,18 if an
information is filed in court without a preliminary investigation, the accused may, within five days from the time he learns of its
filing, ask for a preliminary investigation. The accused's failure to request for a preliminary investigation within the specified
period is deemed a waiver of his right to a preliminary investigation.19

In this case, the information against petitioner was filed with the trial court on 18 June 2002. On 20 June 2002, one Glenn Russel
L. Apura, on behalf of Atty. Eduardo S. Villena (Atty. Villena), requested for copies of the pertinent documents on petitioner's
case.20 On 25 June 2002, Atty. Villena entered his appearance as counsel for petitioner.21 Yet, petitioner only asked for a
reinvestigation on 1 July 2002 or more than five days from the time petitioner learned of the filing of the information. Therefore,
petitioner is deemed to have waived his right to ask for a preliminary investigation.

Petitioner also questions the charge filed against him by the prosecutor. Petitioner insists that a "finger" does not constitute an
object or instrument in the contemplation of RA 8353.

Petitioner is mistaken. Under the present law on rape, Article 266-A of the Revised Penal Code, as amended by RA 8353, and as
interpreted in People v. Soriano,22 the insertion of one's finger into the genital of another constitutes "rape through sexual
assault." Hence, the prosecutor did not err in charging petitioner with the crime of rape under Article 266-A, paragraph 223 of the
Revised Penal Code.

WHEREFORE, we DISMISS the petition. We AFFIRM the assailed Orders dated 5 August 2002 and 28 August 2002 of Judge
Manuel B. Fernandez, Jr., Regional Trial Court of Las Piñas City, Branch 254.

SO ORDERED.
 SECOND DIVISION

[A.M. NO. MTJ-05-1581 : February 28, 2005]

PETER L. SESBREÑO, Complainant, v. JUDGE GLORIA B. AGLUGUB, Metropolitan Trial Court, Branch 2,
San Pedro, Laguna, Respondent.

RESOLUTION

TINGA, J.:

Peter L. Sesbreño filed a Verified Complaint1 dated March 2, 2004 against respondent judge, Hon. Gloria B.
Aglugub, charging the latter with Gross Ignorance of the Law, Neglect of Duty and Conduct Prejudicial to the Best
Interest of the Service relative to Criminal Case No. 39806 entitled People v. Enrique Marcelino, et al.

It appears that complainant filed three (3) separate complaints against Enrique Marcelino (Marcelino), Susan
Nuñez (Nuñez), Edna Tabazon (Tabazon) and Fely Carunungan (Carunungan), all from the Traffic Management
Unit of San Pedro, Laguna, for Falsification, Grave Threats and Usurpation of Authority. The three (3) cases were
assigned to respondent judge's branch and subsequently consolidated for disposition.

After conducting a preliminary examination, respondent issued a Consolidated Resolution2 dated May 6, 2003,
dismissing the cases for Falsification and Grave Threats for lack of probable cause, and setting for arraignment the
case for Usurpation of Authority. Except for Marcelino who failed to appear during the arraignment, all of the
accused were arraigned. Respondent judge issued a warrant for Marcelino's arrest.

Subsequently, complainant filed a Private Complainants' Urgent Manifestation3 dated February 6, 2004 alleging
that the accused were also charged with violation of Republic Act No. 10 4 (R.A. 10) and praying that warrants of
arrest be likewise issued against all of the accused.

Acting upon this manifestation, respondent judge issued an Order5 dated February 12, 2004 stating that a charge
for violation of R.A. 10 was indeed alleged in the complaint for Usurpation of Authority but was not resolved due to
oversight. However, since the statute only applies to members of seditious organizations engaged in subversive
activities pursuant to People v. Lidres,6 and considering that the complaint failed to allege this element,
respondent judge found no probable cause and dismissed the charge for violation of R.A. 10. Further, citing Sec.
6(b), Rule 112 of the Revised Rules of Criminal Procedure (Rules), respondent judge denied complainant's prayer
for the issuance of warrants of arrest against the accused and ordered the records forwarded to the Provincial
Prosecutor's Office (PPO) for review.ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

Thereafter, complainant's counsel, Atty. Raul Sesbreño (Atty. Sesbreño), filed a Motion for Reconsideration and
Urgent Ex-Parte Motion for Issuance of Warrant of Arrest Against Non-Appearing Accused. Respondent judge,
however, did not act on these motions allegedly because the court had already lost jurisdiction over the case by
then.

The PPO affirmed respondent's order and remanded the case to the court for further proceedings on the charge of
Usurpation of Authority.

During the hearing of the case on February 14, 2004, Tabazon, Carunungan and Nuñez did not appear. Atty.
Sesbreño, however, did not move for the issuance of warrants of arrest against them. Neither did he object to the
cancellation of the scheduled hearing.

The foregoing circumstances brought about the filing of the instant administrative complaint.

Complainant contends that respondent judge violated Sec. 6(b), Rule 112 of the Rules when she refused to issue
warrants of arrest against the accused. Complainant also faults respondent judge for allegedly motu
proprio reconsidering her Consolidated Resolution dated May 6, 2003 and failing to order its transmittal to the
Office of the Ombudsman within ten (10) days.

In her Comment With Motion To Dismiss The Administrative Complaint 7 dated March 26, 2004, respondent judge
counters that the issuance of a warrant of arrest is discretionary upon the judge. Since she found no indication
that the accused would abscond, she found it unnecessary to issue the warrant. Moreover, under Republic Act No.
6770, otherwise known as the Ombudsman Act of 1989, the PPO has been designated as the Deputized
Ombudsman Prosecutor. The PPO can take action on similar cases for review and appropriate action. Thus, she
acted in accordance with law when she forwarded the records of the case to the PPO for review and not to the
Office of the Ombudsman as complainant insists.
Respondent judge further accuses complainant and Atty. Sesbreño of falsification, and the latter of violation of
Rule 1.01 and Rule 10.01 of the Code of Professional Responsibility. Allegedly, the affidavit which was attached to
the instant verified complaint was not notarized by Atty. Raul Corro as indicated therein. Further, Atty. Sesbreño
was allegedly convicted of Homicide and may have been suspended from the practice of law.

Complainant reiterates his allegations in his Complainant's Reply To Respondent's Comment Dated March 26,
20048 dated May 11, 2004. He further contends that there is no provision in the Ombudsman Act of 1989
specifically deputizing the PPO to be the "Deputized Ombudsman Prosecutor" as respondent judge contends. He
adds that respondent judge failed to comply with Administrative Order No. 8 since she has yet to forward her
resolution to the Deputy Ombudsman.

Moreover, complainant points out that the affidavit attached to his complaint was notarized by Atty. Corro as
certified by a member of the latter's staff. Complainant also disproves respondent judge's allegation that Atty.
Sesbreño is in the habit of filing administrative complaints against judges, explaining that the latter merely acted
as counsel for litigants who filed administrative complaints against certain judges.

In another Verified Complaint9 filed on March 18, 2004, complainant further charges respondent with violating
Sec. 9(b), Rule 112 of the Rules.

Respondent Judge filed a Comment With Motion To Dismiss Administrative Complaint 10 dated May 7, 2004
clarifying that contrary to complainant's allegation, she did not conduct a preliminary investigation in the case for
Usurpation of Authority. What was submitted for preliminary investigation was the charge for violation of R.A. 10.
It was her resolution dismissing the charge for violation of R.A. 10 which was transmitted to the PPO for
appropriate action. However, since the charges for violation of R.A. 10 and Usurpation of Authority were contained
in a single complaint, respondent judge deemed it proper to forward the entire records to the PPO.

Complainant filed a Complainant's Reply To Respondent's Comment Dated May 7, 200411 dated May 20, 2004
substantially reiterating his allegations.

The Verified Complaint filed on March 18, 2004 was treated as a supplemental complaint per the notation in
the Memorandum12 dated June 25, 2004.

In sum, complainant asserts that respondent judge erred in conducting a preliminary investigation for the charge
of Usurpation of Authority; in not issuing warrants of arrest for failure of the accused to appear during trial; in
issuing her Order dated February 12, 2004 dismissing the complaint for violation of R.A. 10; and in transmitting
the records of the case to the PPO instead of the Office of the Ombudsman.ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

The Office of the Court Administrator recommends that the instant complaint be dismissed for lack of merit but
that respondent judge should be reminded to be more circumspect in the performance of her duties. 13 It made the
following findings:

A careful consideration of the records as well as the pertinent rules reveals that there is nothing in the Rules of
Criminal Procedure which requires a judge to issue a warrant of arrest for the non-appearance of the accused
during the trial. Hence, its issuance rests on the sound discretion of the presiding judge. More so in this case, the
private prosecutor did not move for the issuance of such warrant.

As regards the next issue, Rep. Act No. 10 penalizes a person who, with or without pretense of official position,
shall perform any act pertaining to the Government, or to any person in authority or public officer, without being
lawfully entitled to do so, shall be punished with imprisonment of not less than two (2) years nor more than ten
(10) years. Violation thereof is cognizable by the Regional Trial Court but subject to preliminary investigation.

Respondent judge admitted that she overlooked the charge when she conducted the preliminary examination of
the complaints. Nonetheless, after reviewing the case, respondent Judge found no probable cause and ordered the
dismissal of the case. Therefore, when respondent Judge motu proprio ordered the dismissal of the case for lack of
probable cause, she was acting in accordance with the procedure on preliminary investigation laid down in Sec. 3,
Rule 112 of the Rules on Criminal Procedure.

Respondent Judge also directed that the records of the case be forwarded to the Provincial Prosecutor's Office on
review. Sec. 5 of Rule 112 provides that the resolution of the Investigating Judge is subject to review by the
provincial or city prosecutor, or the Ombudsman or his deputy, as the case may be.

It is respondent Judge's contention that the resolution shall be reviewed by the Provincial Prosecutor. She
explained that pursuant to the Ombudsman Act of 1989, the Provincial Prosecutor has jurisdiction to take
cognizance of the charge of Violation of R.A. No. 10.
However, Sec. 31 of Rep. Act No. 6770 or "The Ombudsman Act of 1989" provides that prosecutors can (be)
deputized by the Ombudsman to act as special investigator or prosecutor only on certain cases. Such provision is
not applicable to the issue at hand. Therefore, respondent Judge erred when she forwarded the case for review to
the Provincial Prosecutor's Office. Nonetheless, complainant failed to show that respondent Judge was motivated
by bad faith when she issued the assailed order. At most, she is guilty of judicial error for which she could not be
held administratively accountable absent any proof of fraud or other evil motive.14

A preliminary investigation is required before the filing of a complaint or information for an offense where the
penalty prescribed by law is at least four (4) years, two (2) months and one (1) day without regard to the
fine.15 Thus, a preliminary investigation is not required nor was one conducted for the charge of violation of Art.
177 of the Revised Penal Code which is punishable by prision correccional in its minimum and medium periods or
from six (6) months and one (1) day to four (4) years and two (2) months.16

This being so, Sec. 9, Rule 112 of the Rules is applicable. Said section provides:

Sec. 9. Cases not requiring a preliminary investigation nor covered by the Rule on Summary Procedure.'

(b) If filed with the Municipal Trial Court. 'If the complaint or information is filed with the Municipal Trial Court or
Municipal Circuit Trial Court for an offense covered by this section, the procedure in section 3(a) of this Rule shall
be observed. If within ten (10) days after the filing of the complaint or information, the judge finds no probable
cause after personally evaluating the evidence, or after personally examining in writing and under oath the
complainant and his witnesses in the form of searching questions and answers, he shall dismiss the same. He
may, however, require the submission of additional evidence, within ten (10) days from notice, to determine
further the existence of probable cause. If the judge still finds no probable cause despite the additional evidence,
he shall, within ten (10) days from its submission or expiration of said period, dismiss the
case.ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

When he finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused had
already been arrested, and hold him for trial. However, if the judge is satisfied that there is no necessity for
placing the accused under custody, he may issue summons instead of a warrant of arrest.

Under the foregoing section, if a complaint or information is filed directly with the Municipal Trial Court, the
procedure laid down in Sec. 3(a), Rule 112 of the Rules shall be observed. If the judge finds no sufficient ground
to hold the respondent for trial, he shall dismiss the complaint or information. Otherwise, he shall issue a warrant
of arrest, or a commitment order if the accused had already been arrested, and hold the latter for trial. However,
the judge is given the discretion to merely issue summons instead of a warrant of arrest if he does not find it
necessary to place the accused under custody.

It is thus not obligatory but merely discretionary upon the investigating judge to issue a warrant for the arrest of
the accused even after having personally examined the complainant and his witnesses in the form of searching
questions for the determination of whether probable cause exists. Whether it is necessary to place the accused in
custody in order not to frustrate the ends of justice is left to the judge's sound judgment. 17

Moreover, the judge is not required to transmit the records of the case to the prosecutor for review.

In this case, respondent judge, following the foregoing procedure, found probable cause to hold the accused for
trial for the charge of Usurpation of Authority and forthwith set their arraignment and the pre-trial. There is
nothing irregular in the course of action taken by respondent judge.

Neither is there merit in complainant's contention that respondent judge should have issued a warrant of arrest
against the accused for their failure to appear during the initial presentation of evidence for the prosecution for the
charge of Usurpation of Authority. The issuance of a warrant of arrest for non-appearance of the accused during
trial is discretionary upon the judge. Indeed, there is nothing in the Rules which requires a judge to issue a
warrant of arrest for non-appearance of the accused during trial.

Respondent judge concedes, however, that due to oversight, she failed to rule on the charge of violation of R.A. 10
in her Consolidated Resolution dated May 6, 2003. Nonetheless, she asserts in her Comment With Motion To
Dismiss Administrative Complaint18 dated May 7, 2004 that she conducted a preliminary investigation for the
charge of violation of R.A. 10 and dismissed the charge after taking into consideration the affidavits and evidence
presented. Complainant does not dispute the fact that indeed a preliminary investigation was conducted for this
charge.19 Thus, when respondent judge dismissed the complaint for violation of R.A. 10, she merely did so to
correct an oversight.

Furthermore, as the Order dated February 12, 2004 confirms, it was the dismissal of the charge for violation of
R.A. 10 that was elevated to the PPO for review. It was imprudent, however, for respondent judge to transmit the
entire records of the case to the PPO knowing that the charge for Usurpation of Authority was included in the
records of the case. Respondent judge should have ensured that at least one complete set of the records remained
in her sala so that the prosecution for Usurpation of Authority would not be held up. Injudicious though her
actuation was, we do not agree with complainant that respondent judge was motivated by an evil intent to delay
the case.

This brings us to the issue of whether respondent should have transmitted her Order dated February 12, 2004
dismissing the charge of violation of R.A. 10 to the Office of the Ombudsman instead of the PPO. Complainant
asserts that since the charge of violation of R.A. 10 is cognizable by the Sandiganbayan, the Office of the
Ombudsman has the primary jurisdiction to review the resolution of dismissal.

This issue is answered by Administrative Order No. 820 entitled Clarifying and Modifying Certain Rules of Procedure
of the Ombudsman, which provides "that all prosecutors are now deputized Ombudsman prosecutors." Moreover,
"[R]esolutions in Ombudsman cases21 against public officers and employees prepared by a deputized assistant
prosecutor shall be submitted to the Provincial or City Prosecutor concerned who shall, in turn, forward the same
to the Deputy Ombudsman of the area with his recommendation for the approval or disapproval thereof. The
Deputy Ombudsman shall take appropriate final action thereon, including the approval of its filing in the proper
regular court or the dismissal of the complaint, if the crime charged is punishable by prision correccional or lower,
or fine of not more than P6,000.00 or both. Resolutions involving offenses falling within the jurisdiction of the
Sandiganbayan shall be forwarded by the Deputy Ombudsman with his recommendation thereon to the Office of
the Ombudsman."

Thus, respondent judge did not err and was, in fact, merely acting in accordance with law when she forwarded the
case for violation of R.A. 10 to the PPO. The fact that the PPO remanded the case to the court for further
proceedings instead of forwarding the same to the Deputy Ombudsman as required by Administrative Order No. 8
is quite another matter. In any event, respondent judge should have taken the necessary steps to remedy the
lapse in order to preclude delay in the disposition of the case.

In sum, for liability to attach for ignorance of the law, the assailed order, decision or actuation of the judge in the
performance of official duties must not only be found to be erroneous but, most importantly, it must be
established that he was moved by bad faith, dishonesty or some other like motive. Respondent judge's actuations
are hardly indicative of bad faith or any motive to delay the case which characterizes the offense of gross
ignorance of the law.22

IN VIEW OF THE FOREGOING, the instant complaint is DISMISSED for lack of merit. Respondent Judge Gloria
B. Aglugub is ADMONISHED to be more circumspect in the performance of her duties in the future.

SO ORDERED.
 SECOND DIVISION

[G.R. NO. 158211 : August 31, 2004]

ERNESTO J. SAN AGUSTIN, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

CALLEJO, SR., J.:

This is a Petition for Review on Certiorari filed by Ernesto J. San Agustin of the Decision1 of the Court of Appeals in
CA-G.R. SP No. 71925 dismissing his Petition for Certiorari.

The Antecedents

Luz Tan executed a notarized criminal complaint and filed the same with the National Bureau of Investigation
(NBI) charging the petitioner, the Barangay Chairman of Barangay La Huerta, Parañaque City, with serious
illegal detention alleging that the petitioner detained her husband Vicente Tan, on June 19, 2002, without lawful
ground therefor.2

On June 25, 2002, the petitioner received a subpoena from Ferdinand M. Lavin, the Chief of the Anti-Organized
Crime Division of the NBI, requiring him to appear before said office the next day, on June 26, 2002, in order to
give his evidence in connection with said complaint and to bring with him the barangay logbook for June 19, 2002.
The petitioner complied with the subpoena and presented himself at the NBI with the barangay logbook. However,
the petitioner was placed under arrest and prevented from going back home.

On June 27, 2002, the NBI Director transmitted to the Department of Justice the findings of the NBI on its
investigation of the case:

On June 19, 2002 at around 9:00 o'clock in the morning while Victim RICARDO TAN and Witness ANTONIO

GERONIMO were selling their wares of kitchen utensils along the highway of La Huerta, Parañaque City, Victim

TAN was mistaken as a "snatcher" by two tricycle drivers, namely, ROMEO C. ALCANTARA and JOSEFINO FERRER,

JR. Victim was turned-over to Subject SAN AGUSTIN and other Subjects at the Barangay Hall of La Huerta,

Parañaque City; witness GERONIMO followed them. GERONIMO witnessed that Victim was beaten by Subjects

and locked-up at the Barangay jail so he decided to inform the wife of the Victim (Complainant) who was residing

in San Pedro, Laguna. When Complainant went to the Barangay Hall on the same day and inquired on the

whereabouts of his husband, two female clerks thereat denied having seen the Victim. Complainant was able to

talk to Subject SAN AGUSTIN the following day but he also denied having seen Victim, worst Subject SAN

AGUSTIN was furious and even shouted at them and brought out his knife. Up to date, Victim, never resurfaced

nor his whereabouts located. Record at the NBI central file of Subject SAN AGUSTIN revealed that he has several

cases of homicide, murder and multiple murder.3

The NBI Director stated that the basis for the arrest of the petitioner was:

BASIS OF ARREST:

Subject SAN AGUSTIN was subpoenaed to appear before the NBI-AOCD to controvert allegations filed against him

for kidnapping by Ms. Luz Tan. He was enjoined to come with his Counsel and bring the logbook of the Barangay.

When Subject appeared at the NBI, he presented at once the logbook of the Barangay. It was noted at the said

logbook that there was no entry on June 19, 2002 that Victim RICARDO TAN was arrested or transmitted to any

law enforcement agency or proper authority.4

State Prosecutor Elizabeth L. Berdal conducted an inquest investigation on June 27, 2002 and came out with a
Resolution, on the same day, affirmed by the Assistant Chief State Prosecutor, finding probable cause against the
petitioner for serious illegal detention under Article 267 of the Revised Penal Code. 5
On June 28, 2002, an Information was filed before the Regional Trial Court of Parañaque City, charging the
petitioner with kidnapping/serious illegal detention with no bail recommended. The case was raffled to Branch 258
of the court and docketed as Criminal Case No. 02-0759.

On July 1, 2002, the petitioner filed a Motion to Quash the Information on the ground that he was illegally arrested
and subjected to an inquest investigation; hence, he was deprived of his right to a preliminary investigation. He
also prayed that he be released from detention and that, in the meantime, the NBI be ordered to refile the
complaint against him withthe Office of the Parañaque City Prosecutor and for the latter to conduct a preliminary
investigation. On July 4, 2002, the petitioner filed a Motion to Quash the Information, this time, on the ground
that the facts alleged therein do not constitute the felony of kidnapping/serious illegal detention. He claimed that
he was a barangay chairman when the private complainant was allegedly detained; hence, he should be charged
only with arbitrary detention, the most severe penalty for which is reclusion temporal.

The prosecution opposed the petitioner's motion to quash the Information on the ground that when he detained
the private complainant, he acted in his private capacity and not as a barangay chairman.6

On July 24, 2002, the RTC issued an Order directing the City Prosecutor to conduct a reinvestigation within a non-
extendible period of forty-five (45) days.7 Assistant City Prosecutor Antonietta Pablo Medina was assigned to
conduct the reinvestigation. The petitioner opposed the reinvestigation contending that the prosecutor should
conduct a regular preliminary investigation since the inquest investigation was void. He refused to submit a
counter-affidavit.

On July 31, 2002, the petitioner filed a petition for certiorari with the Court of Appeals assailing the July 24, 2002
Order of the RTC. He raised in his petition the following issues:

1. Whether or not respondent Judge De Leon acted arbitrarily and in grave abuse of discretion in not granting

petitioner's "Urgent Motion to Quash Information" dated 01 July 2002.

2. Whether or not respondent Judge De Leon acted arbitrarily and in grave abuse of discretion in not granting

petitioner's "Urgent Motion to Quash On The Ground That The Facts Charged Do Not Constitute An Offense" dated

04 July 2002.

3. Whether or not respondent Judge De Leon acted arbitrarily and in grave abuse of discretion in not granting bail

as a matter of right in favor of the petitioner.

4. Whether or not respondent Judge Jose S. Jacinto, Jr. of the Metropolitan Trial Court of Parañaque, Branch 77,

can validly and legally proceed with the hearing of Criminal Case No. 02-2486.8

In the meantime, on August 27, 2002, the Assistant City Prosecutor came out with a Resolution finding probable
cause of arbitrary detention against the petitioner and recommending that the Information for arbitrary detention
and the Motion to Withdraw Information appended thereto be approved. 9 The City Prosecutor opposed the said
Resolution.

On August 28, 2002, the Assistant City Prosecutor filed with the trial court a "Motion to Withdraw
Information."10 On August 30, 2002, the RTC issued an Order granting the motion and considered the Information
withdrawn.

On the same day, an Information was filed with the Metropolitan Trial Court (MeTC) docketed as Criminal Case No.
02-2486, charging the petitioner with arbitrary detention, viz:

That on or about the 19th day of June 2002 and subsequent thereto, in the City of Parañaque, Philippines, and

within the jurisdiction of this Honorable Court, the above-named accused, being a Barangay Chairman of Brgy. La

Huerta, Parañaque City, a public officer, committing the offense in relation to office, did then and there willfully,

unlawfully and feloniously detain one RICARDO TAN, an act done as he well knew, arbitrary and without legal

ground (sic).

CONTRARY TO LAW.11
The case was raffled to Branch 77 of the court. The petitioner posted a cash bond of P3,000.00 for his provisional
release without prejudice to the outcome of his petition in the Court of Appeals. 12

On April 15, 2003, the Court of Appeals rendered its decision denying due course and dismissing the petition
for certiorari of the petitioner.

The petitioner filed the petition at bar contending that:

4.1 THE COURT OF APPEALS SERIOUSLY ERRED IN FINDING THAT NO GRAVE ABUSE OF DISCRETION WAS

COMMITTED BY JUDGE RAUL E. DE LEON WHEN HE DENIED PETITIONER'S "URGENT MOTION TO QUASH

INFORMATION" DATED JULY 01, 2002.

4.2. THE COURT OF APPEALS SERIOUSLY ERRED IN FINDING THAT NO GRAVE ABUSE OF DISCRETION WAS

COMMITTED BY JUDGE RAUL E. DE LEON WHEN HE DENIED PETITIONER'S "URGENT MOTION TO QUASH ON THE

GROUND THAT THE FACTS CHARGED DO NOT CONSTITUTE AN OFFENSE" DATED 04 JULY 2002.

4.3. THE COURT OF APPEALS SERIOUSLY ERRED IN FINDING THAT NO GRAVE ABUSE OF DISCRETION WAS

COMMITED BY JUDGE RAUL E. DE LEON WHEN HE DENIED PETITIONER OF HIS CONSTITUTIONALLY-

GUARANTEED RIGHT TO BAIL.

4.4. THE COURT OF APPEALS SERIOUSLY ERRED IN HOLDING THAT JUDGE JOSE S. JACINTO OF THE

METROPOLITAN TRIAL COURT OF PARAÑAQUE, BRANCH, (sic) CAN VALIDLY AND LEGALLY PROCEED WITH THE

HEARINGS IN CRIMINAL CASE NO. 02-2486.13

The petitioner asserts that he was illegally arrested by the NBI; hence, he was entitled to a regular preliminary
investigation, not merely to an inquest investigation. He contends that since the Information charging him with
kidnapping/serious illegal detention was filed before the Regional Trial Court without affording him a preliminary
investigation, the Information is void. The RTC, the petitioner avers, should have granted his motion to quash the
Information and ordered the NBI to refile its complaint against him with the Office of the City Prosecutor of
Parañaque for the appropriate preliminary investigation and that, in the meantime, the RTC should have ordered
his release from detention. The petitioner posits that the RTC committed a grave abuse of its discretion amounting
to excess or lack of jurisdiction in denying his motion to quash the Information and directing the City Prosecutor to
conduct a reinvestigation. On the other hand, since the Assistant City Prosecutor did not conduct a regular
preliminary investigation before filing the Information for arbitrary detention against him with the MeTC, the
Information is void. Hence, the MeTC should be ordered to quash the Information filed therein.

In its Comment to the petition, the Office of the Solicitor General (OSG) contends that the petition for certiorari of
the petitioner in the Court of Appeals and in this Court had become moot and academic by the withdrawal of the
Information from the Regional Trial Court and filing of the Information for arbitrary detention against the
petitioner in the MTC. The inquest investigation conducted by the State Prosecutor was valid because the
petitioner refused to execute a waiver under Article 125 of the Revised Penal Code. The OSG asserts that the
investigation conducted by the Assistant City Prosecutor, as directed by the RTC, was valid. The petitioner is
estopped from assailing the Resolution of the Assistant City Prosecutor finding probable cause for arbitrary
detention because of his failure to submit his counter-affidavit.

The Court of Appeals ruled that the petitioner was unlawfully arrested; hence, he was entitled to preliminary
investigation and release from detention subject to his appearance during the preliminary investigation. However,
the Court of Appeals declared that the lack of preliminary investigation did not impair the validity of the
Information filed with the RTC. Moreover, the Court of Appeals declared that the petitioner had already been
granted a reinvestigation after which the Information filed with the RTC was withdrawn. Consequently, the
appellate court further declared that the petition had been mooted by the withdrawal of the Information from the
RTC and the filing of another Information in the MeTC for arbitrary detention. The appellate court also held that
the RTC did not commit grave abuse of its discretion amounting to excess or lack of jurisdiction in issuing the
assailed Order. It ruled that even if the reinvestigation conducted by the City Prosecutor is defective, the
Information filed with the MeTC is valid because under the Revised Rules of Criminal Procedure, there is no need
for a preliminary investigation for crimes cognizable by the Metropolitan Trial Court.

The petition is partially granted.

We agree with the Court of Appeals that the petitioner was unlawfully arrested without a warrant of arrest against
him for kidnapping/serious illegal detention. As correctly ruled by the Court of Appeals:

Furthermore, warrantless arrest or the detention of petitioner in the instant case does not fall within the provision

of Section 5, Rule 113, Revised Rules on Criminal Procedure, as amended, which provides:

"Sec. 5. Arrest without 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 been committed and he has probable cause to believe, based on personal knowledge of

facts or circumstances, that the person to be arrested has committed it; and cralawl ibra ry

(c) When the person to be arrested is a prisoner who has escaped while being transferred from one confinement to

another.

In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant shall be forthwith

delivered to the nearest police station or jail and shall be proceeded against in accordance with Section 7 of Rule

112."

considering that petitioner only went to the Office of the NBI to answer the subpoena it issued which was seven

(7) days after the supposed turning over of the custody of Ricardo Tan to petitioner who was then the Barangay

Chairman of La Huerta, Parañaque City, and his locking up in the barangay jail and, thereafter, he was already

arrested and detained. Certainly, the "arresting" officers were not present within the meaning of Section 5(a) at

the time when the supposed victim, Ricardo Tan, was turned over to petitioner. Neither could the "arrest" which

was effected seven (7) days after the incident be seasonably regarded as "when the turning over and locking up in

the Barangay jail had in fact just been committed within the meaning of Section 5(b). Moreover, none of the

"arresting" officers had any "personal knowledge" of facts indicating that petitioner was the person to whom the

custody of the victim Ricardo Tan was turned over and who locked up the latter in the Barangay jail. The

information upon which the "arresting" officers acted upon had been derived from the statements made by the

alleged eyewitnesses to the incident which information did not, however, constitute personal knowledge.14

Consequently, the petitioner is entitled to a preliminary investigation before an Information may be filed against
him for said crime. The inquest investigation conducted by the State Prosecutor is void because under Rule 112,
Section 7 of the Revised Rules on Criminal Procedure, an inquest investigation is proper only when the suspect is
lawfully arrested without a warrant:

SEC. 7. When accused lawfully arrested without warrant. - When a person is lawfully arrested without a warrant

involving an offense which requires a preliminary investigation, the complaint or information may be filed by a

prosecutor without need of such investigation provided an inquest investigation has been conducted in accordance

with existing rules. In the absence or unavailability of an inquest prosecutor, the complaint may be filed by the

offended party or a peace officer directly with the proper court on the basis of the affidavit of the offended party or

arresting officer or person.15

We also agree with the Court of Appeals that the absence of a preliminary investigation does not affect the
jurisdiction of the trial court but merely the regularity of the proceedings. It does not impair the validity of the
Information or otherwise render it defective.16 Neither is it a ground to quash the Information or nullify the order
of arrest issued against him or justify the release of the accused from detention.17 However, the trial court should
suspend proceedings and order a preliminary investigation18 considering that the inquest investigation conducted
by the State Prosecutor is null and void.19 In sum, then, the RTC committed grave abuse of its discretion
amounting to excess or lack of jurisdiction in ordering the City Prosecutor to conduct a reinvestigation which is
merely a review by the Prosecutor of his records and evidence instead of a preliminary investigation as provided
for in Section 3, Rule 112 of the Revised Rules on Criminal Procedure.

However, we do not agree with the ruling of the Court of Appeals that there was no need for the City Prosecutor to
conduct a preliminary investigation since the crime charged under the Information filed with the MeTC was
arbitrary detention under Article 124, paragraph 1 of the Revised Penal Code punishable by arresto mayor in its
maximum period to prision correccional in its minimum period, which has a range of four months and one day to
two years and four months. Whether or not there is a need for a preliminary investigation under Section 1 in
relation to Section 9 of Rule 112 of the Revised Rules on Criminal Procedure depends upon the imposable penalty
for the crime charged in the complaint filed with the City or Provincial Prosecutor's Office and not upon the
imposable penalty for the crime found to have been committed by the respondent after a preliminary
investigation. In this case, the crime charged in the complaint of the NBI filed in the Department of Justice was
kidnapping/serious illegal detention, the imposable penalty for which is reclusion perpetua to death.

IN LIGHT OF ALL THE FOREGOING, the petition is PARTIALLY GRANTED. The Order of the Regional Trial Court
of Parañaque City, dated July 24, 2004, ordering the City Prosecutor to conduct a reinvestigation is SET ASIDE.
The Regional Trial Court is directed to ORDER the City Prosecutor of Parañaque City to conduct a preliminary
investigation as provided for in Section 3, Rule 112 of the Revised Rules on Criminal Procedure. In the meantime,
the Metropolitan Trial Court of Parañaque City, Branch 77, is ordered to suspend the proceedings in Criminal
Case No. 02-2486 pending the outcome of said preliminary investigation.

SO ORDERED.
 FIRST DIVISION

[G.R. NO. 156962 : October 6, 2008]

VICTORIAS MILLING CO., INC., Petitioner, v. LUIS J. PADILLA, EMMANUEL S. DUTERTE, CARLOS TUPAS,
JR., and ROLANDO C. RODRIGUEZ, Respondents.

DECISION

CARPIO, J.:

The Case

This Petition for Review assails the 13 June 2002 Decision1 and the 22 January 2003 Resolution2 of the Court of
Appeals in CA-G.R. SP No. 65895. The Court of Appeals dismissed the petition for certiorari filed by petitioner on
the grounds of (1) lack of standing to prosecute the criminal cases for falsification of private documents against
respondents; (2) failure to attach the assailed order in the petition for certiorari filed in the Regional Trial Court;
and (3) late filing of the petition for certiorari in the Regional Trial Court.

The Facts

The present controversy stemmed from a single complaint for falsification of private documents filed by the Chief
of Police3 of the then Municipality of Victorias against respondents Luis J. Padilla (Padilla), Emmanuel S. Duterte
(Duterte), Carlos Tupas, Jr. (Tupas), and Rolando C. Rodriguez (Rodriguez). Docketed as Criminal Case No. 8069-
V, the complaint reads:

COMPLAINT

The undersigned, Station Commander, Victorias Police Station, PNP Victorias, Negros Occidental, hereby
accuses Luis J. Padilla, Emmanuel S. Duterte, Carlos Tupas, Jr. and Rolando C. Rodriguez of the crime of
Violation of Article 172 Paragraph 2 of the Revised Penal Code on Falsification of Private Documents committed as
follows:

That confederating, working and acting in conspiracy with one another and with intent to cause damage to
Victorias Milling Company (VMC), Luis J. Padilla, Emmanuel S. Duterte, Carlos Tupas, Jr. and Rolando C.
Rodriguez on various dates and in various quantities during the period from 21 January 1992 to 02 December
1996 committed the crime of falsification of private documents in Victorias, Negros Occidental by executing,
issuing and signing RSDOs (Refined Sugar Invoice/Delivery Orders) amounting to THREE MILLION ONE
HUNDRED FORTY TWO THOUSAND SEVEN HUNDRED SIXTEEN (3,142,716) LKG, which are sugarless,
and executing, issuing and signing false certifications supporting the RSDOs without securing the
authority of the board of directors of VMC, as shown in Annex "A" hereof.

Acts contrary to Law.4 (Emphasis supplied)cralawlibrary

On 6 November 1998, upon Motions to Quash the Complaint filed by several of the respondents on the ground,
among others, of duplicity of offenses, Municipal Trial Court in Cities Judge Ricardo S. Real, Sr. (MTCC Judge)
dismissed the complaint and ordered the amendment of the complaint or the filing of another information.5

Accordingly, on 13 November 1998, upon the conversion of the Municipality of Victorias into a city,6 City
Prosecutor Adelaida R. Rendon filed sixty-four (64) Informations for falsification7 against respondents,8 alleging
conspiracy among respondents in signing and using "sugarless" Refined Sugar Delivery Orders (RSDOs) as
collateral to obtain loans from five banks9 in the total amounts of US$15,274,956.40 and P692,322,644.86.

The MTCC Judge approved the issuance of Warrants of Arrest against respondents only in the cases where they
were the signatories of the sugarless RSDOs. Thus, warrants of arrest were issued against Padilla in 47 cases only,
against Duterte in 10 cases only, against Tupas in 6 cases only, and against Rodriguez in 1 case only.

On 14 January 1999, the prosecution filed a Motion to Defer Arraignment,10 praying for the issuance of 64
warrants of arrest against each respondent corresponding to the 64 informations for falsification in view of the
charge of conspiracy.

In an Order of 7 April 1999,11 the MTCC Judge denied the Motion to Defer Arraignment, ruling that conspiracy had
to be proved by the prosecution and setting the cases for arraignment on 3 July 2000.
On 14 April 1999, the prosecution moved for reconsideration,12 which the MTCC Judge denied in his Order of 24
November 1999.13 This order reads:

It must be stressed that although the affidavit of the prosecution is based on personal knowledge, the same were
not yet introduced, authenticated, marked as exhibits and offered as evidence, consequently, it remained as a
worthless piece of evidence to establish even the circumstantial evidence of conspiracy. During the preliminary
investigation using the sworn statement of the prosecution as part thereof is only to determine that a probable
cause exists that the crime as charged was committed and that all the accused were probably guilty thereof and
there is a necessity to issue a warrant of arrest.

The theory of the City Prosecutor of Victorias to issue Sixty Four (64) Warrants of Arrest to each accused as a
result of the alleged conspiracy is baseless. Each accused is only liable for each RSDO's that they have signed
since the dictum that the act of one is the act of all no longer stand [sic]. The High Court speaking thru Justice
Davide, Jr. states:

"Conspiracy, just like the crime itself, must be established by proof beyond reasonable doubt and the Rule has
always been that co-conspirators are liable only for the acts done pursuant to the conspiracy, for other acts done
outside the contemplation of the co-conspirators or which are not necessary and logical consequence of the
intended crime, only the actual perpetrators are liable. In such a case, the dictum that the act of one is the act of
all does not hold true anymore. People v. Rodolfo Federico y Mediona (G.R. No. 99840, August 14,
1995)."14 (Underscoring in the original)

On 29 June 2000, the prosecution filed an Urgent Ex-Parte Motion15 praying for an ex-parte hearing for the
presentation of evidence on its allegation of conspiracy.

On 3 July 2000, during the scheduled arraignment, the MTCC Judge impliedly denied the ex-parte motion, stating
in open court that it is a "mere scrap of paper"16 and proceeded with the arraignment. Respondents, except Tupas,
were arraigned only on specific informations where their signatures appeared in the RSDOs or certifications.
Accordingly, Padilla pleaded not guilty to 46 cases,17 Duterte pleaded not guilty to 10 cases, and Rodriguez
pleaded not guilty to 1 case only. Tupas, through his counsel, requested a deferment of his arraignment.

On the same date, the MTCC Judge set the pre-trial of the case on 4 September 2000 and trial proper on 25 and
26 September, 23 and 24 October, and 27 and 28 November 2000. He also reset the arraignment of Tupas to 4
September 2000.

On 30 August 2000, petitioner filed with the Regional Trial Court (RTC) of Negros Occidental a petition
for certiorari and mandamus, docketed as Civil Case Nos. 2133-40, against the MTCC Judge.18 Petitioner prayed
for the nullification of the arraignment of the three respondents and for the issuance of a writ of preliminary
injunction to enjoin the MTCC Judge from further hearing the cases.

On 31 August 2000, the RTC issued an Order setting the date of the hearing for the preliminary injunction on 7
September 2000 and granting a temporary restraining order.19

On 29 September 2000, petitioner filed an Amended Petition attaching the 24 November 1999 Order of the MTCC
Judge, which had been inadvertently omitted from the original Petition.

On 23 November 2000, the RTC issued an Order20 denying the petition for certiorari and mandamus on three
grounds: 1) petitioner has no standing to file the petition for certiorari; 2) the petition was incomplete in the
narration of facts; and 3) the petition was filed beyond the prescribed period.

On 26 December 2000, petitioner filed a Motion for Reconsideration, which was denied in the 25 May 2001 Order
of the RTC.21

On 1 August 2001, petitioner filed a petition for certiorari with the Court of Appeals challenging the 23 November
2000 and 25 May 2001 Orders of the RTC.

On 5 December 2001, the Court of Appeals issued a Resolution directing the issuance of a temporary restraining
order.22

On 12 December 2001, the Office of the Solicitor General (OSG) filed a Manifestation and Motion (in Lieu of
Comment)23 asking that the People of the Philippines be removed as a party respondent and be excused from
filing a comment to the petition considering that it was in conformity with the petition.

On 13 June 2002, the Court of Appeals rendered a Decision dismissing the petition.
On 1 July 2002, petitioner filed a Motion for Reconsideration, which was denied by the Court of Appeals on 22
January 2003.

Hence, this petition.

The Ruling of the Court of Appeals

In dismissing the petition for certiorari, the Court of Appeals ruled that petitioner has no personality to file the
petition. The Court of Appeals stated that all criminal actions either commenced by complaint or by information
should be prosecuted under the direction and control of the public prosecutor. In this case, petitioner did not even
acquire the conformity of the public prosecutor before filing the petition. Petitioner was not also able to show that
it suffered damages by reason of the alleged criminal act committed by respondents.

The Court of Appeals also found procedural lapses in petitioner's filing of the petition for certiorari before the RTC.
Petitioner failed to attach the assailed orders to its petition and filed the petition beyond the reglementary period.
The Court of Appeals opined that the 60-day period should start from the date of receipt of the 24 November 1999
Order, not from 3 July 2000 when the RTC impliedly denied the motion to conduct an ex-parte hearing. Hence, the
RTC did not commit grave abuse of discretion in dismissing the petition for certiorari .

The Issues

Petitioner raises the following issues:

1. Whether the petition for certiorari was filed within the reglementary period;

2. Whether the petition for certiorari lacked the required vital documents;

3. Whether petitioner has a legal personality to file a petition for certiorari; andcralawlibrary

4. Whether the issuance of a writ of mandamus directing the MTCC Judge to conduct an ex-parte hearing on the
allegation of conspiracy is proper.

The Ruling of the Court

The petition is meritorious.

On the procedural issues

Petitioner contends that it seasonably filed on 30 August 2000 the petition for certiorari with the RTC considering
that it "directly challenged the 3 July 2000 Orders issued by the MTCC," not the Orders dated 7 April 1999 and 24
November 1999. The prayer of the petition for certiorari filed in the RTC reads:

WHEREFORE, it is respectfully prayed of this Honorable Court that, after hearing, judgment be rendered in favor of
the petitioner and against the respondents, directing the issuance of the writs
of certiorari and mandamus, setting aside the arraignment of the three (3) accused for being null and
void, and directing respondent judge through the writ of mandamus to conduct first an ex-parte hearing to
determine whether warrants of arrest (shall) issue against all the accused in all the criminal informations for
falsification, with costs against the respondents.

It is also prayed of this Honorable Court that after hearing, a writ of preliminary injunction be likewise issued to
enjoin respondent Judge from further hearing the cases below and arraigning the accused Carlos
Tupas, Jr. until further orders from this Honorable Court; that pending consideration of the issuance of the
writ of preliminary injunction, a temporary restraining order be issued forthwith to the same effect.24 (Emphasis
supplied)cralawlibrary

Under Section 4 of Rule 65,25 the aggrieved party must file a petition for certiorari within 60 days from notice of
the assailed judgment, resolution or order.

As can be gleaned from the prayer of the petition for certiorari, petitioner was not only assailing the implied denial
of its ex-parte motion during the scheduled arraignment on 3 July 2000. Petitioner was also challenging the
legality of respondents' arraignment on specific informations only instead of on all the 64 informations. Since the
arraignment of the three respondents was held on 3 July 2000, the 60-day period for filing a petition
for certiorari questioning the legality of the arraignment may be reckoned from that date. Therefore, the petition
for certiorari filed on 30 August 2000 was filed within the reglementary period. Considering that petitioner is also
objecting to the arraignment of the respondents, then the attachment to the petition for certiorari of the 3 July
2000 orders of the MTCC Judge and the transcript of the stenographic notes taken on that date substantially
complied with the requirement under the Rules.

On petitioner's personality to file a petition for certiorari

Contrary to the view of the Court of Appeals, petitioner has the personality to file a petition for certiorari assailing
the orders of the MTCC Judge. In Paredes v. Gopengco,26 which ruling was reiterated in People v. Calo, Jr.,27 the
Court held that:

The non-joinder of the People in the action was x x x but a formality, x x x and should not serve as a ground for
dismissal of the action, by virtue of the provisions of Rule 3, section 11, providing that "parties may be dropped or
added by order of the Court on motion of any party or on its own initiative at any stage of the action and on such
terms as are just." Furthermore, as offended party x x x, it cannot be gainsaid that respondents have sufficient
interest and personality as "person(s) aggrieved" x x x to file the special civil action, under sections 1 and 2 of
Rule 65.

Moreover, it is basic in criminal law that the civil case is impliedly included in the criminal case.28 Therefore,
private complainant, petitioner in this case, has sufficient interest and personality in filing the petition
for certiorari .

At any rate, the OSG fully adopted petitioner's views, curing the perceived lack of standing on the part of
petitioner to assail the 3 July 2000 orders of the MTCC Judge via a petition for certiorari . In its Manifestation and
Motion (In Lieu of Comment) filed with the Court of Appeals, the OSG explicitly stated that:

x x x it is in conformity with the instant petition [for certiorari], being on all fours with the Rules of Court and
pertinent jurisprudence. Hence, it should be removed as party respondent, and excused from filing comment on
the petition.29

In its Manifestation and Motion filed before this Court, the OSG reiterated its position that the petition
for certiorari is correct.30

Further, it is not yet necessary to prove that petitioner suffered damages on account of the falsification of the
private documents in order for petitioner to have standing to file a petition for certiorari . Intent to cause damage
is a sufficient allegation of damage for a charge of falsification of private documents.31

On the MTCC Judge's failure to determine the existence of probable cause against respondents

as conspirators in the crimes charged

The 64 separate informations filed with the Municipal Trial Court in Cities by City Prosecutor Adelaida R. Rendon
uniformly charge Padilla, Duterte, Tupas, and Rodriguez of conspiring in the falsification of 64 private documents
consisting of various RSDOs or certifications on different occasions with the intent to cause damage to petitioner.
In effect, each respondent is charged, as a co-conspirator, with 64 counts of falsification of private documents.

At the time of the filing of the informations, the applicable provision was Section 9, Rule 112 of the 1985 Rules on
Criminal Procedure, which covers cases not falling under the original jurisdiction of the Regional Trial Courts nor
covered by the Rule on Summary Procedure.32 No preliminary investigation is required in such cases.33

In the course of the proceedings, Section 9 of Rule 112 was amended to read as follows:

SEC. 8. Cases not requiring a preliminary investigation nor covered by the Rule on Summary Procedure. - -

xxx

(b) If the complaint or information is filed with the Municipal Trial Court or Municipal Circuit Trial Court for an
offense covered by this section, the procedure in section 3(a) of this Rule shall be observed. If within ten (10)
days after the filing of the complaint or information, the judge finds no probable cause after personally
evaluating the evidence, or after personally examining in writing and under oath the complainant and his
witnesses in the form of searching questions and answers, he shall dismiss the same. He may, however, require
the submission of additional evidence, within ten (10) days from notice, to determine further the existence of
probable cause. If the judge still finds no probable cause despite the additional evidence, he shall, within ten (10)
days from its submission or expiration of said period, dismiss the case. When he finds probable cause, he shall
issue a warrant of arrest, or a commitment order if the accused had already been arrested, and hold him for
trial. However, if the judge is satisfied that there is no necessity for placing the accused under custody, he
may issue summons instead of a warrant of arrest. (Emphasis supplied)cralawlibrary
Whether under the old or new provision, the Rules applicable to this case are substantially the same. The Rules
essentially provide that if the MTCC judge finds no probable cause against respondents, he shall dismiss
the complaint or information. Otherwise, he shall issue either warrants of arrest or summonses, depending on
the necessity to place the accused under custody.

In the present case, Padilla, Duterte, Tupas, and Rodriguez are charged in each information as conspirators of
falsifying 64 private documents. In other words, whether respondents signed the falsified documents or not, they
are alleged to have conspired in making untruthful statements in such documents.

After the filing of the 64 informations for falsification of private documents by the City Prosecutor, the MTCC Judge
proceeded to the issuance of warrants of arrest only against the signatories of the allegedly falsified documents
and arraigned the same respondents against whom warrants of arrest were issued. The MTCC Judge opined that
"each respondent is liable only for the RSDO that he signed," citing the case of People v. Federico, where this
Court held that "conspiracy, just like the crime itself, must be established by proof beyond reasonable doubt." The
MTCC Judge also stated that the prosecution's evidence is worthless for not being marked as exhibits and for not
being authenticated.

The MTCC Judge is mistaken. He ruled out the existence of conspiracy based on a wrong ground. At that stage of
the proceedings, the MTCC Judge need not find proof beyond reasonable doubt of the existence of conspiracy. He
must only satisfy himself whether there is probable cause or sufficient ground to hold each respondent for trial as
a co-conspirator. It is obviously absurd for the MTCC Judge to require that conspiracy must be proved before
conspiracy can be alleged in the informations.

For the sake of the prosecution, which desires the punishment of the criminals liable for the falsifications, and for
the benefit of the respondents, who will possibly face prosecution or conviction for the crimes charged, the MTCC
Judge should properly and clearly resolve whether there is probable cause against each respondent as a co-
conspirator for 64 counts of falsification of private documents. The summary nature of the procedure under the
Rules does not dispense with such determination.

As stated above, Section 9 of Rule 112 was amended. Since remedial laws may be given retroactive effect,34 the
Court orders the MTCC Judge to determine the existence of probable cause against respondents as conspirators for
the crimes charged pursuant to the amended provision, specifically Section 8(b) of Rule 112 of the Revised Rules
of Criminal Procedure. Accordingly, if the MTCC judge finds no probable cause against respondents as
conspirators, he shall dismiss the informations against the non-conspirators. He may, however, require the
submission of additional evidence, within ten (10) days from notice, to determine further the existence of probable
cause. If the MTCC Judge still finds no probable cause despite the additional evidence, he shall, within ten (10)
days from its submission or expiration of said period, dismiss the informations against the non-conspirators. If
there exists probable cause against each respondent as a co-conspirator for 64 counts of falsification of private
documents, then the MTCC Judge shall issue either warrants of arrest, in addition to the arrest warrants already
issued, or summonses against respondents, depending on the necessity of placing the accused under custody.
Thereafter, the MTCC Judge should arraign each respondent for 64 counts of falsification of private documents.

Concerning the arraignment of the respondents, the same is not void. If ever, the eventual positive finding of the
existence of probable cause against all respondents as conspirators will only mean additional indictments for
respondents. This finding will not affect the arraignment of the respondents.

WHEREFORE, the Court GRANTS the petition. The Court orders Judge Ricardo S. Real, Sr. or the Presiding Judge
of the Municipal Trial Court in Cities of Victorias City to determine whether there is probable cause against
respondents as conspirators in the crime of falsification of 64 private documents defined and penalized under
Article 172(1) in relation to Article 171(4) of the Revised Penal Code in accordance with the procedure in Section
8(b) of Rule 112 of the Revised Rules of Criminal Procedure.

SO ORDERED.
 FIRST DIVISION

[A.M. NO. MTJ-03-1483 : December 28, 2007]

RICHARD SI y TIAN, Complainant, v. JUDGE ELPIDIO R. CALIS, Respondent.

DECISION

AZCUNA, J.:

This is an administrative complaint against a Municipal Trial Court Judge.

On July 26, 2002, Richard Si y Tian filed a Complaint against Judge Elpidio R. Calis, Municipal Trial Court Judge of Sta.
Cruz, Laguna, for alleged ignorance of the law and manifest bias and partiality relative to Criminal Case No. 30851
entitled "People of the Philippines v. Richard Si y Tian," for Reckless Imprudence Resulting in Damage to Property.

Stating that he is the accused in the aforementioned criminal case, complainant alleged that on March 26, 2002 at
around 3:45 p.m., an accident occurred in front of the Landbank of the Philippines Building in Sta. Cruz, Laguna, when
the car he was driving, a Toyota Corolla Model 1992 with Plate No. TEM-216, bumped the back of a Nissan Sentra car
Model 1998 with Plate No. PRX-231 being rented by the complaining witness Atty. Ceriaco A. Sumaya, a close friend of
respondent Judge. Atty. Sumaya, complainant further alleged, jacked up the minimal damage to his car by adding a
charge for the repair/replacement of the damaged front windshield.

Notwithstanding the fact that the offense charged carried only the penalty of a fine, respondent Judge issued a warrant
for complainant's arrest and fixed the bail for his provisional liberty at P21,200. Complainant invokes Sec. 6 (c), Rule 112
of the Revised Rules of Criminal Procedure which states:

(c) When warrant of arrest not necessary. - A warrant of arrest shall not issue if the accused is already under detention
pursuant to a warrant issued by the Municipal Trial Court in accordance with paragraph (b) of this section, or if the
complaint or information was filed pursuant to Section 7 of this Rule or is for an offense penalized by fine only. The court
then shall proceed in the exercise of its original jurisdiction.

Respondent Judge filed his Comment dated September 5, 2002, denying that Atty. Sumaya was his friend and stating
that he knew him only as an old practitioner who used to appear in the courts of Sta. Cruz, Laguna. He cited a criminal
case he decided against a relative of said lawyer.

On the issuance of the warrant of arrest, respondent Judge maintained that it was in accordance with law and
jurisprudence. He added that the matter was merely an oversight on his part and complainant should have raised an
objection through a motion to quash and having failed to do so is deemed to have waived the same.

The Court Administrator1 found the complaint meritorious with respect to the issuance of the warrant of arrest for an
offense that is punishable with a fine only, contrary to Sec. 6 (c), Rule 112 of the Revised Rules of Criminal Procedure.

The Court agrees with the finding of the Court Administrator. ςηα ñrοb lεš ν ιr†υαl l αω lιb rαrÿ

Respondent Judge in fact admitted in his Comment that he "might have overlooked" the pertinent rule.

The Code of Judicial Conduct provides:

Rule 1.01 - A Judge should be the embodiment of competence, integrity and independence.

Rule 3.01 - A Judge shall be faithful to the law and maintain professional competence.

It is the duty of judges to keep themselves abreast of the law and the rules of court and the latest jurisprudence, for
ignorance of the law on their part is the mainspring of injustice. Respondent Judge failed to fulfill this duty. An oversight
of a new provision of the law or the rules is not a valid excuse from performing this bounden duty.

WHEREFORE, respondent Judge Elpidio R. Calis is hereby found GUILTY of ignorance of the law and meted a FINE of Five
Thousand Pesos (P5,000.00) with a STERN WARNING that a repetition thereof will be more severely dealt with.

No costs.

SO ORDERED.