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[Adm. Matter No. MTJ-94-1004. August 21, 1996.]




Before us is Resolution No. 56 s. 1994 issued by the Sangguniang Bayan of Batac, Ilocos Norte calling for the immediate investigation of Judge Efren F. Albano, of the Municipal Trial Court of Batac, Ilocos Norte. The Sanggunian alleged that:chanrob1es virtual 1aw library

(1) "the stay of Judge Albano in the Municipality of Batac as the Presiding Judge of its Municipal Trial Court has been marred by controversial decisions coupled with habitual absence from office which hampered speedy resolution of cases to the prejudice of (their) constituents," and

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

On November 3, 1994, we referred the Sanggunian’s resolution to Judge Alejandrino C. Cabebe of the Regional Trial Court of Batac, Ilocos Norte for investigation, report and recommendation. 2

Judge Cabebe summoned Mr. Da Vinci Crisostomo, Presiding Officer of the Sanggunian, to a conference to substantiate their charges against the respondent judge. Mr. Crisostomo pointed out several irregularities in the way respondent judge conducts preliminary investigations. Judge Cabebe then examined the criminal dockets of the Municipal Trial Court of Batac, Ilocos Norte as well as the records of preliminary investigations conducted in said court. 3

In the course of his investigation, Judge Cabebe uncovered around forty (40) criminal cases dismissed after preliminary investigation. 4 In all these cases, respondent judge failed to transmit the resolution and records to the provincial prosecutor upon conclusion of the proceedings. Respondent judge also archived two (2) cases when the police failed to arrest the suspects therein, in violation of Section 5 of Rule 112 of the Revised Rules of Court. In addition, Judge Cabebe discovered that respondent judge issued warrants of arrest without examining the complainant and his witnesses in writing and under oath, in violation of Section 6 (b) of Rule 112 of the Revised Rules of Court and Section 21, Article III of the Constitution. Judge Cabebe recommended the dismissal of respondent judge from the service with forfeiture of benefits. 5 The Office of the Court Administrator made a similar recommendation in a Memorandum dated May 23, 1996. 6

It is the stance of respondent judge that the cases cited by Judge Cabebe were all dismissed at the preliminary examination stage and did not reach the preliminary investigation proper. Respondent judge averred that before going to the preliminary investigation proper, he first conducted a preliminary examination to determine whether there is probable cause to issue a warrant of arrest. In the cases cited by Judge Cabebe, respondent judge found no probable cause for the issuance of a warrant, hence he did not proceed to the preliminary investigation proper. He argued that since there were no preliminary investigations conducted and concluded, there were no records to be forwarded to the provincial prosecutor for the filing of the corresponding information. 7 Respondent judge further argued that" (he) may not be held liable for improper disposition of cases under preliminary investigation because the acts imputed against him pertains (sic) to his judicial capacity that are not subject to disciplinary power." 8

Respondent judge’s stance clearly demonstrates his gross ignorance of the proper procedure in conducting a preliminary investigation.

Under the old rules, the preliminary investigation conducted by a municipal judge had two stages: (1) the preliminary examination stage during which the investigating judge determines whether there is reasonable ground to believe that an offense has been committed and the accused is probably guilty thereof, so that a warrant of arrest may be issued and the accused held for trial; and (2) the preliminary investigation proper where the complaint or information is read to the accused after his arrest and he is informed of the substance of the evidence adduced against him, after which he is allowed to present evidence in his favor if he so desires. 9 Presidential Decree 911, 10 upon which the present rule is based, removed the preliminary examination stage and integrated it into the preliminary investigation proper. Now, the proceedings consist only of one stage. 11

Section 3 of Rule 112 of the Revised Rules of Court outlines the procedure for conducting a preliminary investigation:chanrob1es virtual 1aw library

Sec. 3. Procedure. — Except as provided for in Section 7 hereof, no complaint or information for an offense cognizable by the Regional Trial Court shall be filed without a preliminary investigation having been first conducted in the following manner:chanrob1es virtual 1aw library

(a) The complaint shall state the known address of the respondent and be accompanied by affidavits of the complainant and his witnesses as well as other supporting documents, in such number of copies as there are respondents plus two (2) copies for the official file. The said affidavits shall be sworn to before any fiscal, state prosecutor or government official authorized to administer oath, or in their absence or unavailability, a notary public, who must certify that he has 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 the same if he finds no ground to continue with the inquiry, or issue a subpoena to the respondent attaching thereto a copy of the complaint, affidavits and other supporting documents. Within ten (10) days from receipt thereof the respondent shall submit counter-affidavits and other supporting documents. He shall have the right to examine all other evidence submitted by the complainant.

(c) Such counter-affidavits and other supporting evidence submitted by the respondent shall also be sworn to and certified as prescribed in paragraph (a) hereof and copies thereof shall be furnished by him to the complainant.

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

(e) If the investigating officer believes that there are matters to be clarified, he may set a hearing to propound clarificatory questions to the parties or their witnesses, during which the parties shall be afforded an opportunity to be present but without the right to examine or cross-examine. If the parties so desire, they may submit questions to the investigating officer which the latter may propound to the parties or witnesses concerned.

(f) Thereafter, the investigation shall be deemed concluded, and the investigating officer shall resolve the case within ten (10) days therefrom. Upon the evidence thus adduced, the investigating officer shall determine whether or not there is sufficient ground to hold the respondent for trial.

Section 5 of the same rule specifies the duty of the investigating judge upon conclusion of the preliminary investigation:chanrob1es virtual 1aw library

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

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

Respondent judge’s failure to transmit the resolution and records of the cases disregards the clear mandate of Section 5 of Rule 112. Under this provision, it is mandatory for the investigating judge to transmit to the provincial or city prosecutor his resolution dismissing or admitting the complaint, together with the entire records of the case.

A preliminary investigation is conducted to determine whether there is sufficient ground to engender a well-founded belief that a crime cognizable by the Regional Trial Court has been committed and that the respondent is probably guilty thereof and should be held for trial. 12 It is an executive, not a judicial function. It falls under the authority of the prosecutor who is given by law the power to direct and control all criminal actions. However, since there are not enough fiscals and prosecutors to investigate the crimes committed in all the municipalities all over the country, the government was constrained to assign this function to judges of Municipal Trial Courts and Municipal Circuit Trial Courts. 13 Thus, when a municipal judge conducts preliminary investigation, he performs a non-judicial function as an exception to his usual duties. His findings, therefore, are subject to review by the provincial or city prosecutor whose findings, in turn, may be reviewed by the Secretary of Justice in appropriate cases. Hence, the investigating judge, after conducting a preliminary investigation, must perform his ministerial duty to transmit within ten (10) days the resolution of the case together with the entire records to the provincial or city prosecutor. 14

It is true that the determination of the existence of probable cause for the issuance of a warrant of arrest is a judicial function which is beyond the reviewing power of the prosecutor. However, distinction should be made between a preliminary inquiry for the determination of probable cause for the issuance of a warrant of arrest and a preliminary investigation to ascertain whether or not a person should be held for trial. The first is a judicial function while the second is an executive function. 15 Even if the investigating judge finds no sufficient ground to issue a warrant of arrest, he is still duty-bound to transmit the records to the provincial or city prosecutor. The prosecutor’s reviewing power shall affect only his conclusion as to whether or not a criminal complaint or information should be filed against the respondent, but not his conclusion as to the proprietary of issuing a warrant of arrest.

We now come to the warrants of arrest issued by the respondent judge. The issuance of a warrant of arrest is addressed to the sound discretion of a judge. Provided there is no grave abuse of discretion or malice, a mistake on his part in the determination of probable cause will not subject him to disciplinary action. He is nevertheless expected to follow strictly the procedure laid down in the rules regarding its issuance. Failure to comply with such procedure will make him administratively liable. 16 In the case at bar, respondent judge issued several warrants of arrest without examining the complainant and his witnesses in writing and under oath, in violation of Section 6 of Rule 112 which provides:chanrob1es virtual 1aw library

Sec. 6. When warrant of arrest may issue. — . . .

(b) By the Municipal Trial Court. — If the municipal trial judge conducting the preliminary investigation is satisfied after an examination in writing and under oath of the complainant and his witnesses in the form of searching questions and answers, that a probable cause exists and that there is a necessity of placing the respondent under immediate custody in order not to frustrate the ends of justice, he shall issue a warrant of arrest.

The records show that respondent judge has violated the rules on preliminary investigation and issuance of a warrant of arrest since the start of his term as municipal judge in Batac, Ilocos Norte in September 1991. The gross ignorance of respondent judge has immensely prejudiced the administration of justice. Parties adversely affected by his rulings dismissing their complaints after preliminary investigation have been denied their statutory right of review that should have been conducted by the provincial prosecutor. His practice of issuing warrants of arrest without examining the complainants and their witnesses is improvident and could have unnecessarily deprived the accused of their liberty however momentary it may be. Our Constitution requires that all members of the judiciary must be of proven competence, integrity, probity and independence. 17 Respondent judge’s stubborn adherence to improper procedures and his constant violation of the constitutional provision requiring him to personally examine the complainant and the witness in writing and under oath before issuing a warrant of arrest makes him unfit to discharge the functions of a judge. 18

IN VIEW WHEREOF, respondent Judge Efren F. Albano is DISMISSED from the service with forfeiture of all leave credits and retirement benefits and with disqualification for reemployment in the national and local governments, as well as in any governmental instrumentality or agency, including government-owned or controlled corporations.

This decision is immediately executory and the respondent judge is further ordered to cease and desist from discharging the functions of his office upon receipt of this Decision. Let a copy be entered in the personal records of the Respondent.


Narvasa, C.J., Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Francisco, Hermosisima, Jr., Panganiban and Torres, Jr., JJ., concur.


1. Rollo, p. 4.

2. Rollo, p. 8.

3. Preliminary Report submitted by Judge Alejandrino C. Cabebe, Rollo, pp. 78-79.

4. Crim. Case No. 4480; Crim. Case No. 4482; Crim. Case No. 4500; Crim. Case No. 4511; Crim. Case No. 4561; Crim. Case No. 4565; Crim. Case No. 4569; Crim. Case No. 4584; Crim. Case No. 4588; Crim. Case No. 4600; Crim. Case No. 4631; Crim. Case No. 4645; Crim. Case No. 4646; Crim. Case No. 4651; Crim. Case No. 4653; Crim. Case No. 4654; Crim. Case No. 4659; Crim. Case No. 4672; Crim. Case No. 4677; Crim. Case No. 4699; Crim. Case No. 4701; Crim. Case No. 4702; Crim. Case No. 4712; Crim. Case No. 4713; Crim. Case No. 4714; Crim. Case No. 4738; Crim. Case No. 4744; Crim. Case No. 4767; Crim. Case No. 4768; Crim. Case No. 4769; Crim. Case No. 477s; Crim. Case No. 4777; Crim. Case No. 4796; Crim. Case No. 4805; Crim. Case No. 4813; Crim. Case No. 4815; Crim. Case No. 4821; Crim. Case No. 4824; Crim. Case No. 4827; Crim. Case No. 4830; Crim. Case No. 4846; Crim. Case No. 4849.

5. Final Report submitted by Judge Alejandrino C. Cabebe, Rollo, pp. 26-34.

6. Rollo, pp. 114-118.

7. Rollo, p. 106.

8. Rollo, p. 103.

9. Biron v. Cea, 73 Phil. 673.

10. Further Amending Section 1 of Republic Act No. 5180 as Amended by Presidential Decree No. 77 (took effect on March 23, 1976).

11. Florenz D. Regalado, Remedial Law Compendium Vol. II, 7th Revised Ed. (1995), p. 296.

12. Section 1, Rule 112, Revised Rules of Court.

13. Section 2, Rule 112, Revised Rules of Court; Castillo v. Villaluz, 171 SCRA 39 (1989); Salta v. Court of Appeals 143 SCRA 228 (1986).

14. Balagapo, Jr. v. Duquilla, 238 SCRA 645 (1994); Cantela v. Almoradie, 229 SCRA 712 (1994).

15. People v. Inting, 187 SCRA 788 (1990).

16. Ancog v. Tan, 227 SCRA 137 (1993).

17. Section 7 (3), Article VIII, 1987 Constitution.

18. See Balagapo, Jr. v. Duquilla, 238 SCRA 645 (1994).

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