THIRD DIVISION

A.M. No. MTJ-04-1532. June 27, 2005.
(Formerly OCA IPI No. 03-1349-MTJ)

THELMA ALMONTE, complainant,vs.JUDGE FRED A. BIEN, respondent.

R E S O L U T I O N

GARCIA, J p:

In a verified, sworn administrative complaint directly filed with this Court, herein complainant, Thelma Almonte, charges herein respondent, Judge Fred A. Bien,incumbent Acting Presiding Judge of the 8th Municipal Circuit Trial Court (MCTC) of San Jacinto-Monreal, 5th Judicial Region, San Jacinto, Masbate with gross ignorance of the law in connection with respondent's preliminary investigation of Criminal Case No. 4598, a prosecution for robbery filed with respondent's court at the instance of Isauro Lique against the complainant and her husband, Jaime Almonte.

Complainant alleges that after conducting a "semblance of a preliminary investigation" by an ex-parte inquiry on Isauro Lique, the respondent judge, in his order of April 24, 2002, directed the arrest of complainant and her husband and fixed their bail for provisional liberty at P40,000 each.

Complainant avers that respondent judge disregarded the procedure for preliminary investigation, as provided under Section 3(b) and (c),

On May 20, 2002, complainant, through counsel, filed in Criminal Case No. 4598 a Motion To Quash Or Cancel The Order Dated April 24, 2004 Directing The Issuance Of The Warrant Of Arrest Of Accused Herein And Fixing The Bail Bond For Their Provisional Liberty And The Warrant Of Arrest Itself. However, in his order of June 25, 2002, the respondent judge denied the motion, relying on the ruling of this Court in that once an accused posted his bail bond, he thereby waived his right to question any defect in the issuance of the warrant of arrest.

Complainant asserts that the respondent's denial of their aforementioned motion is another manifestation of the latter's ignorance of the

In the same administrative complaint, complainant further avers that prior to the filing of the robbery case against her and her husband by Isauro Lique, they had caused the filing against Lique of a criminal case for acts of lasciviousness for molesting their 9-year old daughter, Brenda Almonte, which case is still pending with the Regional Trial Court at Masbate, Branch 48 (Family Court).Complainant asserts that Lique maliciously filed the complaint for robbery in order to compel her and her husband to drop the earlier criminal case for act of lasciviousness they filed against him. TcIHDa

In his COMMENT dated March 10, 2003, respondent judge wants it placed on record that he is: (1) the Acting Presiding Judge of the MCTC of both San Jacinto and San Fernando, Masbate; (2) the Judge-Designate of some of inhibited cases in the MTCC, Masbate and MCTC of Aroroy, Masbate; and (3) the Presiding Judge of the MCTC of Dimasalang, Masbate, his permanent station.

In the same COMMENT, respondent admits having conducted on April 24, 2002 the preliminary investigation in Criminal Case No. 4598; that after finding the existence of a probable cause, he issued the warrant of arrest against complainant and her husband and fixed a bail bond of P40,000 each for their provisional liberty, as required under the first stage of preliminary investigation; that although no subpoenas were issued to the accused, such an omission was an honest mistake on his part in the performance of his duties, and not due to his ignorance of the law or procedure, adding that he had been extra-careful and diligent in the discharge of his duties, dispensing justice without delay, fear or favor; that in fact, his April 24, 2002 order was even affirmed by the Office of the Provincial Prosecutor, Masbate City which eventually filed an information for Robbery against complainant and her husband before the Regional Trial Court at San Jacinto, Masbate.

As regards his denial of the Motion To Quash Or Cancel The Order dated April 24, 2002, etc.,(supra) filed by complainant and her husband, thru counsel, in Criminal Case No. 4598, respondent, by way of explanation, reproduced in his COMMENT the full text of his denial Order of June 25, 2002, to wit:

This is a Motion to Quash or Cancel the Order dated April 24, 2004 Directing the Issuance of the Warrant of Arrest Herein and Fixing the Bail Bond for their Provisional Liberty and the Warrant of Arrest Itself, filed by accused thru counsel Atty. Ruben Joel A. Puertollano in the above-entitled case.

Accused alleged that this Court did not observe the provisions of Sections 3, 5 and 6 (b) of

Records of the case would readily show that when this instant motion was filed on May 20, 2002, the Court also received an Order of Release issued by the Hon. Cristobal M. Bailon of the Regional Trial Court, Branch 50, San Jacinto, Masbate commanding the Jailer of the Bureau of Jail Management and Penology, San Jacinto, Masbate to release from custody accused Thelma Almonte for having posted the required bail bond.

In the case of People vs. Rolito ,the Supreme Court held that once an accused has posted his bail bond, he waives his right to question any defect in the issuance of the warrant of arrest. For this reason, the instant Motion to Quash the Warrant of Arrest issued by this Court has now become moot and academic.

As to the allegation that the Court did not observe the provisions in the conduct of the preliminary investigation and the issuance of warrant of arrest, it is worth recalling that basically the preliminary examination has two phrases or stages. The first is the preliminary examination. It is here where the Court conducts an ex parte inquiry on the prosecution witnesses based on their sworn statements in the form of searching questions and answers. After this, if the Court believes that there is a probable cause that the crime has been committed and that the accused is probably guilty thereof, then the Court will issue a warrant of arrest in order not to frustrate the ends of justice.

When the accused has already been arrested on the basis of the warrant of arrest issued by the Court, and has been committed for detention, the Court immediately issues a subpoena to the accused requiring him to submit his counter-affidavit and other controverting evidence for the evaluation of the Court. This is the second stage of the preliminary investigation. cCDAHE

It is submitted that the Court has correctly applied the

WHEREFORE, premises considered, the Court hereby resolves to DENY the instant Motion to Quash or Cancel the Order dated April 24, 2002 and the Warrant of Arrest.

SO ORDERED. (Underscoring by respondent himself).

Respondent judge submits that the aforequoted Order is in accordance with law and with what he honestly believed as correct and proper, and not on his alleged ignorance of the law and procedure, as charged by complainant.

In her Reply to Comment, complainant expresses the belief that respondent judge issued the warrants of arrest in Criminal Case No. 4598 without giving her and her husband notice and chance to file their counter-affidavits to favor Isauro Lique. Elaborating thereon, complainant asserts that if respondent judge is truly not ignorant of the law, as he claims, then it could well be that his intention in forthwith issuing the warrants is for her and her husband to be immediately arrested and detained, such that if they could not post bail, Lique would have a bargaining leverage for the dropping of the case for acts of lasciviousness then pending against him. Complainant also points out that Lique's complaint for robbery was directly filed by the latter with the Municipal Trial Court of San Jacinto, Masbate without reporting the alleged robbery incident with the local barangay authorities or with the Philippine National Police of San Jacinto, Masbate.

Complainant also contends that respondent judge's argument to the effect that a preliminary investigation has two stages or phases is misplaced. She asserts that respondent judge obviously applied Section 6,

On the basis of its evaluation, the Office of the Court Administrator (OCA) which initially acted on the subject administrative complaint recommended that: (1) the same be re-docketed as a regular administrative matter; (2) respondent judge be fined in the amount of P10,000 for gross ignorance of the law; (3) he be reprimanded in his capacity as a member of the Philippine Bar for violation of the

In separate resolutions both dated February 23, 2004, we redocketed the present case as a regular administrative matter and required both parties to manifest whether they are amenable to submit the case for resolution based on the pleadings filed. In their respective manifestations, complainant and respondent judge expressed their willingness to submit the case based on the pleadings filed, which manifestations were noted by us in our Resolution of July 19, 2004.

After a thorough examination of the OCA's evaluation report and the records on hand, the Court finds merit in the recommendation of the Court Administrator.

Doubtless, the root of the controversy is respondent judge's unfamiliarity with the

It is the stance of respondent that there are two stages or phases of preliminary investigation; that he was only in the first or the preliminary examination stage when he issued the warrants of arrest against the Almonte spouses after examining the complaining witness Isauro Lique and after finding the existence of probable cause that a crime had been committed; and that the issuance of subpoenas to the accused requiring them to submit their counter-affidavits and other evidence would only be after they shall have been arrested (the second stage or the preliminary investigation proper).

Obviously, the respondent judge failed to keep track with the developments in law and jurisprudence.

In and reiterated in , this Court ruled that under the viz:

Under the old Presidential Decree 911, upon which the present . TAESDH

Section 3,

Section 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.

Here, respondent judge disregarded the procedure for preliminary investigation in Criminal Case No. 4598. As it were, he merely took the statement of therein complainant Isauro Lique, and, on that very same day, terminated his investigation and issued warrants of arrest against the couple. The spouses Almonte were not furnished with the copies of the complaint for robbery, thereby denying them the chance to examine the same and the evidence submitted by Lique. Nor were they given the opportunity to submit their counter-affidavits and supporting documents. If anything else, the respondent judge's actuations in the premises only betray his ignorance of procedural

Further demonstrating respondent's deliberate disregard of the law, if not his gross ignorance of the same, is his misplaced reliance in .According to respondent judge, he denied the Almontes' motion to quash the warrant of arrest because of this Court's ruling in Rolito that once an accused has posted bail, he waived his right to question any defect in the issuance of the warrant of arrest.

Under Section 26,

Sec. 26. Bail not a bar to objections on illegal arrest, lack or irregular preliminary investigation. An 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. The court shall resolve the matter as early as practicable but not later than the start of the trial of the case.

We are not unmindful of occasional mistakes or errors of judgment which judges may commit. In the same breath, however, judges are expected to show more than a mere cursory acquaintance with elementary

For sure, the As advocates of justice and visible representation of the law, they are expected to keep abreast with the developments in law and jurisprudence, and to be proficient in their application and interpretation thereof. When a law or a

The OCA recommends that we impose a fine of P10,000 upon the respondent judge. Given respondent s proven gross violation of the IASCTD

WHEREFORE, herein respondent Judge Fred A. Bien, incumbent Acting Presiding Judge, MCTC, San Jacinto, Masbate is hereby declared GUILTY of gross violation of Section 3,

SO ORDERED.

Panganiban, Sandoval-Gutierrez, Corona and Carpio Morales, JJ., concur.

Footnotes

1. Rollo,pp. 1-3.

2. Annex "C",Administrative Complaint; Rollo,p. 7.

3. Annex "I",Administrative Complaint; Rollo,pp. 16-18.

4. Annex "J",Administrative Complaint; Rollo,pp. 19-20.

5. G.R. No. 101837, February 11, 1992, 206 SCRA 138.

6. Rollo,pp. 28-32.

7. Supra.

8. Rollo,pp. 33-39.

9. Rollo,pp. 50-51.

10. Rollo,p. 55.

11. 329 Phil. 363 1996.

12. 352 Phil. 206 1998.

13. Annex "B",Administrative Complaint; Rollo,pp. 5-6.

14. Annex "D",Administrative Complaint; Rollo,p. 8.

15.

16. ,A.M. MTJ-00-1321, 10 March 2004, 425 SCRA 79.