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A.M. No. MTJ-97-1128 April 22, 1998




Before us is a verified complaint filed by Florentino C. Bagunas, dated February 27, 1997 charging Acting Judge Concordio L. Fabillar 1 with Gross Ignorance of the Law and Grave Abuse of Discretion in finding probable cause in Criminal Case No. 1238 entitled "People of the Philippines v. Florentino Bagunas @ "Tinong" for Illegal Possession of Firearms.

On May 17, 1995, a demand letter was sent by SPO2 Aquilino A. Fabillar of the Giporlos Municipal Police Station, Eastern Samar to complainant Bagunas, to wit:


This has reference with (sic) your signed Memorandum Receipt dated 07 October 1989 in connection with your borrowed caliber .38 (Smith & Wesson) revolver during your term as Municipal Mayor of Giporlos, Eastern Samar.

As accountable officer of this Station, we have your (sic) honor to request your cooperation to turn-over to this office the aforecited firearm for it is very much needed for accounting of firearm nationwide.

In relation above, may we request to hear your side within seventy two (72) hours upon receipt thereof.

Your utmost cooperation on this matter is highly appreciated. I am (sic)

Very truly yours,



Chief Invest/Supply NCPO. 2

In a letter dated June 7, 1995, Bagunas informed SPO2 Fabillar that the firearm had already been returned, viz.:

xxx xxx xxx


In connection with your request for turn-over of the .38 Caliber Revolver (Smith & Wesson) personally owned by Col. Alzate, the then Provincial Commander of Eastern Samar, which revolver he lent me for my protection during my term as the Mayor of Giporlos and for which a memorandum receipt was caused to be prepared by Col. Alzate in your office, I have the honor to inform you that said revolver have (sic) already been taken from my possession sometimes (sic) in the year 1989 or 1990 by two (2) Confidants (sic) of Col. Alzate, one of whom was (sic) a relative of said Col. Alzate, who came to me one afternoon at about 4:30 P.M. and who alleged (sic) that they were ordered by Col. Alzate to get the same revolver from me. I was asking a receipt from said soldiers, but because they were in a hurry to proceed to Lawaan for another mission, so they only promised me to give me a receipt upon their return from Lawaan for they might be nighted (sic). Due to my confidence and trust of the other person who was (sic) said to be the relative of Col. Alzate and because Col. Alzate was my friend, I gave said revolver to them, with my expectation and hope that they will give me the receipt for such revolver upon their return from Lawaan, but until the following day, said two soldiers did not pass anymore by me (sic) in Giporlos.

So, I went to the office of the Chief of Police in Giporlos, informed Rafael Valdemoro, who was then the Chief of Police that time (sic) about the matter and requested him to make the incident that took place appear in his police blotter. 3

xxx xxx xxx

For your information, said Col. Alzate was the sole property owner of said revolver and not the Municipal Government of Giporlos nor of the Provincial Government of Eastern Samar or of the National Government, which information about said firearm was narrated to me by said Col. Alzate before he lend me such arm, and so, you will not be accountable for such property which was not turned to you for responsibility and/or accountability.

xxx xxx xxx

Very truly yours,

(Sgd.) Florentino C. Bagunas. 4

In spite of said explanation, a complaint signed by SPO2 Sofronio Barsania, the Acting Chief of Police of Giporlos Municipal Police Station, was filed on July 31, 1995 charging Bagunas with illegal possession of firearm, to wit:

That sometimes (sic) on October 7, 1989, the accused FLORENTINO C. BAGUNAS @ "Tinong", a resident of Brgy. No. 2, Poblacion Giporlos, Eastern Samar, a former Municipal Mayor of Giporlos, Eastern Samar, within the preliminary jurisdiction of this Honorable Court the abovenamed accused failed to returned (sic) his receipted short firearm Smith and Wesson .38 caliber revolver bearing serial number C14647 from the office of Giporlos police station in spite of the verbal and written demand letter made by SPO2 Aquilino A. Fabillar PNP the supply NCPO of the said station to returned (sic) the said firearm, did there and then the (sic) willfully, unlawfully and criminally kept in his possession and control of the said firearm without proper documents and functional (sic) in Violation (sic) of PD 1866 (ILLEGAL POSSESSION OF FIREARM). 5

On August 1, 1995, respondent judge Concordio Fabillar, conducted a preliminary investigation during which Atty. Francisco Mirales, counsel of Bagunas, manifested that his client has not received a subpoena and copies of the affidavits of complainant's witnesses. Respondent judge explained that he was just conducting the "first phase" of the preliminary investigation, hence Bagunas was not yet entitled to a subpoena as well as to copies of the affidavits. According to respondent judge, the first phase of the investigation is intended to determine whether the complaint is meritorious and it is only after finding such merit will the court issue a subpoena. Although Atty. Mirales informed the respondent judge that a preliminary investigation has only one stage, he deferred to judge Fabillar's decision to continue with the so-called "first phase" of the preliminary investigation. 6 Thus, the investigation proceeded, with respondent judge commenting:

xxx xxx xxx


Now, go back to my first impression of the case, I was asking the Chief of Police if there is a way where we can avoid this case. To make it simplier (sic), to settle in this case without asking concurrence delima (sic). Be it remembered that the respondent in this case is an Ex-mayor of the municipality of Giporlos, a friend of the presiding judge and he is a relative. It is not easy to endure the rigors of setting the case where one is friend of the court. I hope I can share with this period (sic) to some people whom you know well, but that is the game (sic) the wish be grant (sic) and according to the Supreme Court it is mandated that we should follow the law (sic). 7

After the so-called "first phase" of the investigation, where complainant's witnesses were simply asked whether they prepared their respective affidavits, respondent judge issued an order, to wit:

Pursuant to paragraph (a) of Section 3, Rule 112 of the New Rules of Court, the court scrutinized the complaint as well as the supporting affidavits and documents. It is found that the complaint as supported by the affidavits and other documents is impressed with merits.

It is therefore ordered that copies of the complaint and supporting affidavits be furnish (sic) the respondent Florentino C. Bagunas requiring him to file his counter affidavit within a period of ten (10) days from receipt thereof, if he so desire, after which this case will be set for the final phase of the preliminary investigation which date must take place on August 14, 1995 at 8:30 o'clock in the morning. . . . (Emphasis supplied) 8

On August 9, 1995, Bagunas, through counsel, filed his counter-affidavit and the affidavits of his witnesses. He also filed an Urgent Motion for Inhibition and for the Forwarding of the Case to the Provincial Prosecutor for preliminary investigation. 9

In an Order dated August 9, 1995, respondent judge denied the Motion holding that although he is a "friend" of Bagunas and a distant relative of prosecution witness SPO2 Aquilino Fabillar, under Rule 137, he is not mandatorily required to inhibit himself from conducting the preliminary investigation. He also denied Bagunas' request to forward the case to the Office of the Provincial Prosecutor. 10

On August 14, 1995, respondent judge issued an order 11 finding probable cause against Bagunas. He forthwith issued a warrant of arrest against Bagunas.

On August 24, 1995, Bagunas, through counsel, filed a Motion to Transmit Resolution/Records of the Case to the Provincial Prosecutor, alleging that:

xxx xxx xxx

2. On August 17, 1995 at about 10:00 A.M., undersigned counsel requested the Clerk of Court of this Court to show him the records of this case for him to examine all other evidence submitted by the complainant, if any, pursuant to paragraph (b) of P.D. No. 911, in relation to paragraph (b), Section 3, Rule 112 of the New Rules on Criminal Procedure, but he was informed that the case folder was brought home by the Honorable Presiding Judge, hence the same could not be available for examination;

3. Respondent is intending to file a motion for reinvestigation of this Case before the Provincial Prosecutor's Office, however, the resolution together with the entire records of this case is, up to this time, with the custody of this court;

xxx xxx xxx 12

Respondent Judge denied said Motion stating:

xxx xxx xxx

It must be emphasized that the records of this case can only be elevated to the Office of the Provincial Prosecutor for his proper action, upon the termination of the preliminary investigation in conformity with the provisions of the aforesaid section thus cited. But the preliminary investigation could not be terminated because although the court has already made clarificatory questions upon some witnesses of the case during which the accused deliberately failed to appear despite due notice, pursuant to the provisions of Paragraph (e) of Section (sic) of the same rule, and thus has found the existence of a probable cause, pursuant to the mandate of Paragraph (b) of Section 6, also of the same rule, the accused has not been placed under the jurisdiction of this court and remains at large despite the issuance of a warrant for his apprehension, the Preliminary Investigation therefore cannot be terminated and as a consequences thereof, cannot be elevated to the proper forum of competency.

The court is ready with its resolution of the result of the Preliminary Investigation, but as above intimated, it cannot elevate the records hereof as the accused had not been arrest (sic) nor surrendered to the court or any proper authority. Before then, the preliminary investigation cannot be terminated and the records cannot be elevated.


On September 8, 1995, Bagunas, through counsel, filed a Motion for Reinvestigation with the Department of Justice where he raised the following grounds:




On September 15, 1995, Bagunas surrendered to respondent judge and posted a bond for his temporary release.

On September 18, 1995, respondent judge issued another Resolution finding probable cause exists to continue with Criminal Case No. 1238 for Illegal Possession of Firearm against Bagunas. 15

On January 15, 1996, Asst. Provincial Prosecutor Fred O. Japzon, submitted his Reinvestigation Report finding that:

. . . there is no gun recovered from the respondent, the charge is based only on a Memorandum Receipt, the corpus delicti, the gun, which is the body of the crime was not recovered, so, there is no prima facie case in this instant case that can prosper in filing an information.

That the return of the gun in question a short firearm Smith and Wesson .38 caliber revolver to the two (2) soldiers on September 12, 1990 was witnessed by PO3 Victor Leona, PNP, Giporlos and Sangguniang Bayan Juan Albutra, and was recorded in the next day September 13, 1990 in Police Blotter, Annex "A", for the defense which the undersigned believed to be truthful and record properly.

That the demand letter of SPO3 Aquilino Fabillar dated May 17, 1995 happened only after there was a case filed against prosecution witness Angel Dacuno in the Ombudsman Visayas, and five (5) years after it was recorded in the police blotter on September 13, 1990, that the said firearm was already returned to two (2) soldiers sent by Lt. Col. Alzate.

That the prosecution witness Angel C. Dacuno, is bias (sic) because he became a witness to this cage after respondent filed against him nine (9) criminal cases in the Ombudsman, prosecution witness Maximo C. Fabillar is also biased because he is a relative of the incumbent Mayor Rodito Fabillar, who had an election protest filed against him by respondent.

C o n c l u s i o n -

In view of the foregoing reasons, let this case of Illegal Possession of Firearms against Florentino C. Bagunas, alias Tinong, be dismissed, as it is hereby ordered DISMISSED. 16

Hence, this administrative complaint before us where Bagunas alleges that respondent judge exhibited gross ignorance of the law and abused his discretion when he: (1) refused to inhibit himself from conducting the preliminary investigation; (2) failed to dismiss Criminal Case No. 1238 for lack of probable cause; and (3) precipitately issued a warrant of arrest.

After investigation, the Court Administrator found that the complaint is meritorious.

We agree.

Under Par. 1, Sec. 1, Rule 137 of the Rules of Court, a judge or judicial officer shall be mandatorily disqualified to sit in any case in which:

(a) he, or his wife or child, is pecuniarily interested as heir, legatee, creditor or otherwise;

(b) he is related to either party within the sixth degree of consanguinity or affinity, or to counsel within the fourth degree, computed according to the rules of civil law;

(c) he has been executor, administrator, guardian, trustee or counsel;

(d) he has presided in any inferior court when his ruling or decision is the subject of review, without the written consent of all parties in interest, signed by them and entered upon the record.

Paragraph two of Section 1, Rule 137, provides for the rule on voluntary inhibition and states: "(a) judge may, in the exercise of his sound discretion, disqualify himself from sitting in a case, for just or valid reasons other than those mentioned above."

In the case at bar, respondent Judge is not mandatorily disqualified from conducting the preliminary investigation of the complainant. His relationship to prosecution witness SPO2 Aquilino Fabillar does not fall under the scope of the prohibition mandated by the Rules of Court. 17

The next issue is whether the respondent judge should have voluntarily inhibited himself. Whether or not a judge should voluntarily inhibit himself is addressed to his sound discretion. The operative word is sound for the soundness of his discretion can be passed upon by this Court. Where the exercise of his discretion is characterized by grave abuse, this Court will not sit still and let the error remain uncorrected. In the case at bar, we find the respondent judge gravely abused his discretion when he decided to proceed with the preliminary investigation of the complainant knowing fully well that his impartiality was impaired.

The records show that respondent judge's partiality manifested itself when he found the existence of probable cause in Criminal Case No. 1238 despite paltry evidence presented by the prosecution. Acting Chief of Police Barsania filed the complaint for illegal possession on the basis of a mere Memorandum Receipt signed by Bagunas on October 7, 1989 and executed by Pfc. Aquilino Fabillar, then supply officer of Giporlos Police Station. 18 It is highly suspicious why the police would try to recover said firearm after a span of five (5) years. Indeed, SPO2 Aquilino Fabillar, who wrote the demand letter, is privy to the issuance of said firearm to Bagunas. For his part, Bagunas did not deny that he received the subject firearm. However, he asserts that he had returned it and the return was recorded in the police blotter. 19 To corroborate Bagunas' assertion, Juan Albutra and PO3 Victor L. Leona stated in their respective counter-affidavits that on September 12, 1990, they witnessed then Mayor Bagunas surrendering the subject firearm to two (2) soldiers who were sent by Col. Alzate. 20 And we take it against the prosecuting police officers that they did not present Col. Alzate, who is in the best position to shed light on the whereabouts of the firearm he issued to Bagunas.

More telling against the respondent judge is the series of procedural blunders he committed to the prejudice of the respondent, viz.: (1) in insisting that there are two stages to a preliminary investigation; (2) in holding that he could not conclude the preliminary examination and transmit the records to the provincial prosecutor for appropriate action without acquiring jurisdiction over the person of Bagunas through his arrest; and (3) in ruling that there was necessity to issue a warrant of arrest.

In Sangguniang Bayan of Batac, Ilocos Norte v. Judge Efren Albano, 21 we have explained that under our new rules of procedure, preliminary investigation has only one stage, viz.:

(u)nder 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. Presidential Decree 911, 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.

Nor should the respondent judge wait for the arrest of the accused before elevating the records of the case to the provincial prosecutor. Section 5, Rule 112 of the Rules of Court is crystal clear on the matter, viz.:

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; (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 the cancellation of his bail bond, if the resolution is for the dismissal of the complaint.

. . . . (Emphasis supplied)

Indeed, under the same rule, a preliminary investigation is concluded after the following procedure, viz.:

Sec. 3. Procedure. - Except as provided for in Section 7 hereon, 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:

(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 as 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, 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) If the investigating officer finds no ground to continue with the inquiry, he shall dismiss the complaint. Otherwise, he shall issue a subpoena to the respondent, attaching thereto a copy of the complaint, affidavits and other supporting documents and granting him ten (10) days from receipt within which he may submit counter-affidavits and other supporting documents. The respondent shall have the right to examine all other evidence submitted by the complainants.

(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.

Respondent judge should have resolved the case within ten (10) days after the hearing where he clarified the evidence of the parties and then, he should have forthwith transferred the records to the provincial prosecutor for appropriate action.

It is also clear that respondent judge gravely abused his discretion in issuing a warrant of arrest against Bagunas. No expediency warranted the immediate arrest of Bagunas. "Even if the judge finds probable cause, it is not mandatory for him to issue a warrant of arrest . . . . He must further find that there is a necessity of placing the respondent under immediate custody in order not to frustrate the ends of justice." 22

We agree with the Office of the Court Administrator (OCA), that respondent insisted on investigating complainant Bagunas due to his close association with the latter's political rivals. It appears that Bagunas filed an election protest before the Regional Trial Court of Guian, Eastern Samar, against
Mayor Rodito Fabillar, a relative of respondent judge, after the May 1995 local elections. 23 As earlier stated, Bagunas filed a graft and corruption case against COMELEC officer Angel Dacuno, who is also a friend and relative of respondent judge. 24

As early as 1967, in the case of Pimentel v. Salanga, 25 we drew the guidelines for judges to follow where their impartiality is challenged by a party, viz.:

A judge may not be legally prohibited from sitting in a litigation. But when suggestion is made of record that he might be induced to act in favor of one party or with bias or prejudice against a litigant arising out of circumstance reasonably capable of inciting such a state of mind, he should conduct a careful self-examination. He should exercise his discretion in a way that the people's faith in the courts of justice is not impaired. A salutary norm is that he reflect on the probability that a losing party might nurture at the back of his mind the thought the judge had unmeritoriously tilted the scales of justice against him. That passion on the part of a judge may be generated because of serious charges of misconduct against him by a suitor or his counsel, is not altogether remote. He is a man, subject to the frailties of other men. He should, therefore exercise great care and caution before making up his mind to act or withdraw from a suit where that party or counsel is involved. He should in good grace inhibit himself where the case could be heard by another judge and where no appreciable prejudice would be occasioned to others involved therein. On the result of his decisions to sit or not to sit may depend to a great extent the all-important confidence in the impartiality of the judiciary. If after reflection he should resolve to voluntarily desist from sitting in a case where his motives or fairness might be seriously impugned, his action is to be interpreted as giving meaning and substance to the second paragraph of Section 1, Rule 137. He serves the cause of the law who forestalls miscarriage of justice.

IN VIEW WHEREOF, respondent Judge Concordio Fabillar is SUSPENDED for three (3) months without pay with a stern WARNING that a similar offense in the future will be dealt with more severely.


Regalado, Melo, Mendoza and Martinez, JJ., concur.


1 Judge of the 9th Municipal Circuit Trial Court (MCTC), Giporlos-Quinapundan, Eastern Samar.

2 Exhibit "D", Rollo, p. 22.

3 Certification issued by Acting Chief of Police Sofronio Barsania on August 2, 1995, attesting to the presence of said report in the police blotter, dated September 13, 1990, Rollo, p. 41.

4 Exhibit "E", Rollo, p. 23.

5 Complaint, Rollo, pp. 16.

6 "Minutes of the Proceedings," pp. 2-4; Rollo, pp. 102-104.

7 Ibid., p. 5; Rollo, p. 105.

8 Annex "K", Rollo, p. 111.

9 Annex "L", Rollo, p. 112.

10 Annex "M" Rollo, p. 114.

11 Annex "P", Rollo, pp. 146-147.

12 Rollo, pp. 58-59.

13 Order, Rollo, p. 61.

14 Rollo, p. 67.

15 Resolution, p. 4; Rollo, p. 65.

16 Reinvestigation Report, pp. 2-3, Rollo, pp. 76-77.

17 Judge Fabillar's father is the third cousin of prosecution witness SPO2 Aquilino Fabillar's grandfather. Hence, they are related within the eleventh degree of consaguinity. (Comment of Judge Fabillar, p. 2, Rollo, p. 83).

18 Annex "F", Rollo, p. 21.

19 Supra note 3.

20 Annexes "L" and "M", Rollo, pp. 38-39.

21 A.M No. MTJ-94-1004, August 21, 1996, pp. 4-5.

22 Atty. Jose A. Bersales v. Judge Diosdado C. Arriesgado, A.M. No. MTJ-93-773, September 3, 1996.

23 Election Protest Case No. 876, Annex "S", Rollo, pp. 48-54.

24 Office of the Court Administrator (OCA) Memorandum dated June 3, 1997, p. 2.

25 21 SCRA 160, 167-168.


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