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[A.M. No. OCA-IPI-97-404-MTJ.October 13, 1999]

JUANITO QUERUBIN JR. vs. HON. BONILLA

SECOND DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated OCT 13 1999 .

A.M. No. OCA-IPI-97-404-MTJ (Juanito Querubin, Jr. vs. Hon. Melchor E. Bonilla, Formerly the Acting Presiding Judge, Third Municipal Circuit Trial Court, Sara-Ajuy-Lemery, Iloilo.)

This is a complaint filed by Juanito Querubin, Jr. charging Judge Melchor E. Bonilla of the Third Municipal Circuit Trial Court, Sara-Ajuy-Lemery, Iloilo, with grave abuse of authority, gross incompetence, and misconduct.Complainant alleges that on July 30, 1997, a complaint for qualified theft was filed against him and on the same date, respondent judge issued a warrant for his arrest.He claims that respondent judge has no jurisdiction over the complaint since qualified theft is within the jurisdiction of the Regional Trial Court.He also claims that respondent judge acted with bad faith and malice considering that he issued the warrant of arrest on the same day the complaint was filed, without previously conducting a preliminary investigation.

Respondent judge denies the charges against him and claims that since the imposable penalty for qualified theft is more than six years and thus, within the jurisdiction of the Regional Trial Court, he has the duty as a municipal trial court judge to conduct the preliminary investigation.He claims that contrary to the allegations of complainant, he conducted a preliminary investigation, i.e., the preliminary examination of the private complainant and his witnesses, and the preliminary investigation proper wherein herein complainant was required to submit his counter-affidavit.He contends that he examined private complainant and his witnesses and properly determined the necessity of placing the complainant under immediate custody before issuing the warrant of arrest.To prove his contention, he submitted to the Court the transcript of stenographic notes of the preliminary examination that he conducted.

In its report, dated September 9, 1999, the Office of the Court Administrator made the following findings and recommendation:

EVALUATION : The complaint is devoid of merit.Complainant first questions the jurisdiction of respondent over Criminal Case No. 4368-A and the latter's authority to issue a warrant of arrest.There is no question that said case falls within the jurisdiction of the RTC and not the Municipal Circuit Trial Courts since the estimated value of the stolen property is P450,000.00 and the imposable penalty therefor is the maximum provided by law which is twenty (20) years.(Article 310 in connection with Article 309 of the Revised Penal Code).But it cannot be said that respondent exercised jurisdiction over Criminal Case No. 4368-A.Criminal jurisdiction has been defined as the authority to hear and try a particular offense and impose the punishment for it.(People vs. Mariano, 71 SCRA 600, 605).Obviously, respondent did not try the merits of the case.What respondent did was merely to conduct a preliminary investigation which he is fully authorized to carry out under Section 2, Rule 112 of the Rules of Court which provides:

"Section 2. Officers authorized to conduct preliminary investigation. - Thefollowing may conduct a preliminary investigation:

(a) Provincial or City fiscals and their assistants;

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

(c) National and Regional State Prosecutors; and

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

As to his authority to issue a warrant of arrest, respondent was well within his powers to issue the same pursuant to Section 6 (b) of Rule 112 of the Rules of Court which reads:

Section 6.When warrant of arrest may issue. -

(a) By the Regional Trial Court. - Upon the filing of an information, the Regional Trial Court may issue a warrant for the arrest of the accused.

(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."

We are not convinced that respondent issued the warrant of arrest with bad faith or malice.The only evidence presented by complainant to substantiate his claim is the speed with which the warrant was issued, to wit, on the same day the criminal complaint was filed.This would not suffice.We cannot fault respondent [for] acting promptly on a case pending before his sala.Besides respondent complied with the requirement of Section 6(b), Rule 112 of the Rules of Court by examining the private complainant and his witnesses in the form of searching questions and answers.As proof thereof, respondent attached to his comment the transcript of stenographic notes of his examination.

Furthermore, contrary to complainant's contention respondent in his order dated July 30, 1997 found that there was a necessity of placing complainant in immediate custody in order not to frustrate the ends of justice.Prior to declaring that there was a necessity of placing complainant under immediate custody and issuing the warrant of arrest, respondent examined personally under oath in the form of searching questions and answers the complainant and the witnesses in the criminal case.Herein complainant has not shown to our satisfaction that respondent abused his discretion in issuing the warrant of arrest and we failed to find any considering that respondent complied with the procedural requirements of Section 6(b), Rule 112 of the rules of Court and considering further that the propriety of issuing a warrant of arrest pursuant to the said provision is left to the sound discretion of the judge (Flores vs. Judge Sumalyag, A.M. No. MTJ-97-1115, June 10, 1998 citing Samulder vs. Salvani, Jr., 165 SCRA 734, 741).

As to the issue of whether or not respondent should have first given complainant the opportunity to submit his Counter-Affidavit before issuing the warrant of arrest, we find for the respondent.In Pangandaman vs. Casar (159 SCRA 599, 605) this Court had the occasion to discuss the issue of whether or not a warrant of arrest may be issued even before the completion of the preliminary investigation.Said the Court:

There is no requirement that the entire procedure for preliminary investigation must be completed before a warrant of arrest may be issued.What the rule provides is that no complaint or information for an offense cognizable by the Regional Trial Court may be filed without completing the procedure.But nowhere is it provided that the procedure must be completed before a warrant of arrest may issue.Indeed, it is the contrary that is true.The present Section 6 of the same Rule 112 clearly authorizes the municipal trial court to order respondent's arrest even before opening the second phase of the investigation if said court is satisfied that a probable cause exists and there is a necessity to place respondent under immediate custody in order not to frustrate the ends of justice.

RECOMMENDATION:Respectfully submitted for the consideration of this Honorable Court is our recommendation that the instant case be dismissed for lack of merit.

The Court finds the report and recommendation of the Office of the Court Administrator to be well taken, it appearing that respondent judge properly observed due process in the conduct of the preliminary investigation and in the issuance of the questioned warrant of arrest.The Court finds respondent judge to have performed his duties regularly under the law.

WHEREFORE , the instant complaint is DISMISSED for lack of merit.Bellosillo, J., Chairman is on official leave.

Very truly yours,

(Sgd.) TOMASITA M. DRIS

Clerk of Court

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