CITY PROSECUTOR ARMANDO P. ABANADO, complainant,
JUDGE ABRAHAM A. BAYONA, Presiding Judge, Municipal Trial Court in Cities, Branch 7, Bacolod City, respondent.
The case sprang from a criminal case entitled People of the Philippines vs. Cresencio Palo, Sr. It was initially handled by Investigating Prosecutor Dennis Jarder who found no probable cause against Palo. However, complainant, upon review, found that there was a probable cause against Palo. Thus, complainant disapproved Jarder’s Resolution and filed the Information in court.
In connection with the issuance of a warrant of arrest against accused Palo, respondent Judge Bayona issued an order directing complainant Abanado to present (1) a copy of the Memorandum of Preliminary Investigation, (2) Resolution of the Investigating Prosecutor Dennis Jarder, (3) Memorandum of the transfer of case assignment from designated Investigating Prosecutor to the City Prosecutor, and (4) Exhibit to the Court, to enable his court to evaluate and determine the existence of probable cause.
With respect to item 3, complainant explained in a letter that there was no memorandum of transfer of the case from Investigating Prosecutor Jarder to him.
Respondent was dissatisfied with the explanation of the Office of the City Prosecutor. In an Order, respondent stated that the Jarder’s Resolution dismissing the complaint was part and parcel of the official records of the case and, for this reason, must form part of the records of the preliminary investigation. He further stated that because there was a conflict between Jarder’s and complainant’s resolutions, those documents were necessary in the evaluation and appreciation of the evidence to establish probable cause for the issuance of a warrant of arrest against Palo. He, thus, ordered complainant to complete the records of the case by producing the Jarder’s Resolution. The Office of the City Prosecutor again sent a letter explaining the impossibility of submitting it to the court. The letter stated that the Resolution was no longer part of the records of the case as it was disapproved by complainant.
Respondent did not accept the explanations made by the Office of the City Prosecutor. In an order, he required complainant to explain why he should not be cited for contempt. Complainant requested for a ten-day extension to comply with it but respondent denied the request. He likewise ordered the Clerk of Court to issue a subpoena duces tecum ad testificandum to Jarder directing him to testify on the existence of his resolution dismissing the case against Palo and to Office of the City Prosecutor’s Records Officer Myrna Vañegas to bring the entire record of the preliminary investigation of the Palo case.
Aggrieved, complainant immediately filed a motion for inhibition against respondent and a petition for certiorari with a prayer for the issuance of a temporary restraining order (TRO) to restrain respondent from proceeding with the hearing of the contempt proceedings. Complainant’s prayer for a TRO was granted by Presiding Judge Pepito Gellada of the Regional Trial Court, Branch 53, Bacolod City.
Judge Gellada granted the petition for certiorari holding that when a city or provincial prosecutor reverses the investigating assisting city or provincial prosecutor, the resolution finding probable cause replaces the recommendation of the investigating prosecutor recommending the dismissal of the case. The result would be that the resolution of dismissal no longer forms an integral part of the records of the case. It is no longer required that the complaint or entire records of the case during the preliminary investigation be submitted to and be examined by the judge. The rationale behind this practice is that the rules do not intend to unduly burden trial judges by requiring them to go over the complete records of the cases all the time for the purpose of determining probable cause for the sole purpose of issuing a warrant of arrest against the accused. What is required, rather, is that the judge must have sufficient supporting documents (such as the complaint, affidavits, counter-affidavits, sworn statements of witnesses or transcripts of stenographic notes, if any) upon which to make his independent judgment or, at the very least, upon which to verify the findings of the prosecutor as to the existence of probable cause.
Complainant executed an administrative complaint and the same was received by the Office of the Court Administrator (OCA). He alleged that respondent was guilty of gross ignorance of the law or procedure and gross misconduct. He essentially asserted that respondent unduly burdened himself by obsessing over the production of the records of the preliminary investigation, especially Jarder’s Resolution. Respondent, in his Comment with Counter-Complaint for Disbarment of Prosecutor Abanado, reiterated the importance of the Jarder’s Resolution in deciding whether to issue a warrant of arrest.
The OCA submitted its report and recommendation. It noted Judge Gellada’s Order which held that the resolution of the city or provincial prosecutor finding probable cause replaces the recommendation of the investigating prosecutor. In such case, the resolution recommending the dismissal is superseded, and no longer forms an integral part of the records of the case and it need not be annexed to the information filed in court.
Whether or not the conduct of a preliminary investigation is an executive function
Yes. The conduct of a preliminary investigation is primarily an executive function.
Thus, the courts must consider the rules of procedure of the Department of Justice in conducting preliminary investigations whenever the actions of a public prosecutor is put in question. The Department of Justic-National Prosecution Service (DOJ-NPS) Manual states that the resolution of the investigating prosecutor should be attached to the information only as far as practicable. Such attachment is not mandatory or required under the rules.