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[A.M. OCA IPI No. 04-1583-MTJ.� April 25, 2005]
DALISAY vs. BARTE
SECOND DIVISION
Sirs/Mesdames:
Quoted hereunder, for your information, is a resolution of this Court dated APR 25 2005.
AM OCA IPI No. 04-1583-MTJ (Rex I. Dalisay vs. Judge Felixberto P. Barte.)
R E S O L U T I O N
Considering the Report of the Office of the Court Administrator, to wit:
In a VERIFIED COMPLAINT Rex I. Dalisay charges respondent Judge Felixbero P. Barte with Ignorance of the Law, Misconduct, Violation of Canon 3, Rule 3.01 of the Code of Judicial Conduct and Violation of the Code of Professional Responsibility relative to Criminal Case No. 3121-C entitled "People of the Philippines vs. Rex Dalisay" for Violation of R.A. 9165.
Complainant, who is the accused in the criminal case, alleges that on 13 January 2004 he was arrested in a "buy bust operation" by some members of the Philippine National Police (PNP). He claims however to have been framed by the police for possession of marked money and a sachet of prohibited drugs and was made to sign the Receipt for Property Seized without the assistance of a counsel. Thereafter, he was detained at the Culasi PNP Lock-Up Cell. The criminal complaint was filed three days after his arrest, or on 16 January 2004 and a warrant of arrest was issued by respondent on 29 January 2004. In addition, the Resolution forwarding the records of the case to the Provincial Prosecutor's Office was dated 5 February 2004 but was received by him only on 23 February 2004.
In his COMMENT, respondent judge denies the charges against him. He states that on 16 January 2004, a complaint against complainant for Violation of the Comprehensive Dangerous Drugs Act of 2002 was filed by the PNP members of the 1st Antique Provincial Mobile Group stationed at Culasi, Antique. The case was docketed as Crim. Case No. 3121-C.
On 22 January 2004, respondent set the case for preliminary investigation but the same was reset to 29 January 2004 on motion of PO2 Ramon Mosquera. On said date, he issued an order finding probable cause and issued a warrant for the arrest of the accused. Respondent explains that he holds session at MCTC Culasi, Antique only once a week.
On 2 February 2004, after complainant filed his counter-affidavit, he issued an order forwarding the records of the case to the Provincial Prosecutor's Office for appropriate action.
Respondent claims that when he conducted the preliminary investigation on 29 January 2004, he assumed that complainant had been released from detention as early as 15 January 2004 following the lapse of the 36-hour period prescribed in Art. 125 of the Revised Penal Code (RPC). That the detention of complainant became illegal after 36 hours without any complaint filed against him should not be blamed on him. Although complainant was arrested without the benefit of a warrant, the provision of Sec. 7, Rule 112 of the Revised Rules on Criminal Procedure ceased to apply because he was no longer legally detained when the preliminary investigation was conducted. What should govern is Sec. 3 in relation to Sec. 6, part. (b), Rule 112 of the Revised Rules on Criminal Procedure.
Respondent also points out that he was not the person who detained the accused nor was he charged by law to deliver the detained person to the proper judicial authorities. If complainant truly believed that his continued detention, was illegal, he should have filed a Petition for Habeas Corpus instead of filing a complaint for Arbitrary Detention against some PNP member and herein respondent judge.
In sum, respondent insists that he has not committed any act violative of the Code of Professional Responsibility. His actions were all in accordance with his knowledge and honest belief that he must conduct a preliminary investigation to determine probable cause. Even if he wanted to expedite the preliminary investigation, he granted the request for continuance of PO2 Ramon Mosquera who was not yet ready to present evidence because it was reasonable and is allowed under Sec. 2 of Act No. 194 and in Marcos vs. Cruz, 12 May 1939, 1st Supp. 40 OC 174. Respondent Judge claims that he has three (3) clays from the time an accused is brought to him for him to conduct the investigation unless the accused or complainant asks for more time in order that witnesses maybe obtained or for other good and sufficient reason in which event a continuance for a reasonable time may be allowed. Since he holds office thereat only on Thursdays, he should not be cited as the cause of complainant's prolonged detention.
EVALUATION : Respondent judge may not be held accountable for the charges against him inasmuch as he was not the public officer responsible for the prolonged detention of the complainant. The arbitrary detention suffered by complainant was the result of the procedural lapses of the PNP of Culasi, Antique.
As regards the delay in the conduct of the preliminary investigation, we find in favor of respondent judge. Although no specific provision for continuance is found in Rule 112 (Preliminary Investigation), Sec. 3(f) of Rule 119 provides that:
Sec. 3.
(f)���������� Any period of delay resulting from a continuance granted by any court motu proprio, or on motion of either the accused or his counsel, or the prosecution if the court granted the continuance on the basis of its findings set forth in the order that the ends of justice served by taking such action outweigh the best interest of the public and the accused in a speedy trial.
RECOMMENDATION : Respectfully submitted for the consideration of the Honorable Court our recommendation that the case be DISMISSED for lack of merit.
and finding the evaluation and recommendation thereon to be in accord with law and the facts of the case, the Court hereby approves and adopts the same.
ACCORDINGLY, the administrative complaint against Judge Felixberto P. Barte is DISMISSED.
SO ORDERED.
Very truly yours,
(Sgd.) LUDICHI YASAY-NUNAG
Clerk of Court
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