TOPIC Preliminary Investigation: Sec.

2 - Who may conduct

CASE NO. A.M. No. MTJ-09-1737
CASE NAME Conquilla v. Judge Bernardo
MEMBER Prisha Cruz

DOCTRINE
1. Under Section 2 of Rule 112, only the following officers are authorized to conduct preliminary
investigations: (a) Provincial or City Prosecutors and their assistants; (b) National and Regional
State Prosecutors; and (c) Other officers as may be authorized by law.

RECIT-READY DIGEST
Complainant was charged with direct assault before the MTC of Bocaue. Respondent judge conducted a PI
and found probable cause to hold the complainant for trial for the crime of direct assault. Eventually,
complainant posted bail. She then filed an administrative complaint against respondent judge. According
to complainant, respondent judge committed an illegal act constituting gross ignorance of the law and
procedure when he conducted the PI and issued the warrant of arrest because under A.M. No. 05-08-[2]6-
SC, first level court judges no longer have the authority to conduct PIs. Complainant contends that
respondent judge usurped the power of the prosecutor.

SC ruled against the respondent judge. The records show that respondent judge did conduct a PI and not
just a preliminary examination by stating in his Order that there is sufficient ground to hold the accused for
trial for the crime charged. The conduct of preliminary investigation by respondent judge was in direct
contravention of A.M. No. 05-8-26-SC, which removed the conduct of PI from judges of first-level courts.
Under Section 2 of Rule 112, only the following officers are authorized to conduct preliminary
investigations: (a) Provincial or City Prosecutors and their assistants; (b) National and Regional State
Prosecutors; and (c) Other officers as may be authorized by law. While PI was required based on the penalty
of the crime charged, it was incumbent upon respondent judge to forward the records of the case to the
Office of the Provincial Prosecutor for PI, instead of doing it himself.

FACTS
• This is an administrative complaint for usurpation of authority, grave misconduct, and gross
ignorance of the law filed by Conquilla (complainant) against Judge Bernardo (respondent judge),
Presiding Judge of the MTC of Bocaue, Bulacan.
• On 4 July 2008, a criminal complaint for direct assault was filed against complainant before the
MTC of Bocaue, Bulacan.
• Respondent judge conducted a preliminary investigation (PI) and found probable cause to hold the
complainant for trial for the crime of direct assault. Respondent judge then issued a warrant of
arrest with the bail fixed at P12,000. Respondent judge then issued an order reducing the bail for
complainant's provisional liberty to P6,000. On the same date, complainant posted cash bail of
P6,00.
• Complainant then filed an administrative complaint against respondent judge.

Complainant's Contentions
• Under A.M. No. 05-08-[2]6-SC, first level court judges no longer have the authority to conduct
PIs. Respondent judge committed an illegal act constituting gross ignorance of the law and
procedure when he conducted the PI and issued the warrant of arrest.
• The issuance of the warrant of arrest was without legal basis and unjustly prejudiced complainant
and deprived her of her liberty. Respondent judge usurped the power of the prosecutor, who was
not even given the chance to comment on complainant's Motion to Reduce Bail.

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 • Furthermore, complainant alleges that when she learned about the warrant of arrest, she called
respondent judge's wife, who said "she would help in having the bail reduced to P6,000.00 and
would have the case for direct assault against herein complainant dismissed provided herein
complainant cancel the wife's debt of P35,000.00 and provided that herein complainant loan the
wife an additional amount of P50,000.00."

Respondent's Contentions
• He issued the warrant of arrest in good faith because he was convinced that there was probable
cause and that it was necessary to place the complainant under immediate custody to prevent a
frustration of justice. Although he knew that the SC already amended Rules 112 and 114 by
removing the conduct of the PI from judges of first-level courts, the power to personally determine
probable cause in the issuance of a warrant of arrest cannot be revoked.
• Even if such power was indeed revoked by the amendment, technical rules can be relaxed if their
implementation will result in injustice.
• He did not usurp the power of the prosecutor when he reduced the bail considering that under
Section 20 of Rule 114, the court may increase or decrease the bail upon good cause.

The Office of the Court Administrator's Ruling

• The OCA found respondent judge guilty of gross ignorance of the law for his patent and unjustified
violation of the provisions of the Resolution in A.M. No. 05-8-26-SC.
• The charge of usurpation of authority is without merit. The power to determine the amount of bail
is vested in the judge.

ISSUE/S and HELD

1. W/N the judge is guilty of gross ignorance of the law by conducting a PI – YES

RATIO
1. On the issue of respondent judge conducting a PI:
• The records of the case clearly show that respondent judge indeed conducted a PI on 8 July
2008. After finding probable cause to hold complainant for trial for the crime of direct assault,
respondent judge then issued a warrant for her arrest.
• That respondent judge conducted a preliminary investigation and not just a preliminary
examination to determine existence of probable cause for the issuance of a warrant of arrest is
evident in his Order: "finds that a probable cause exists and there is sufficient ground to hold
the accused LYDELLE L. CONQUILLA for trial for the crime of DIRECT ASSAULT
as charged in the complaint."
• The conduct of preliminary investigation by respondent judge was in direct contravention of
A.M. No. 05-8-26-SC, which removed the conduct of PI from judges of first-level courts.
• Under Section 2 of Rule 112, only the following officers are authorized to conduct
preliminary investigations: (a) Provincial or City Prosecutors and their assistants; (b)
National and Regional State Prosecutors; and (c) Other officers as may be authorized by
law.
• MTC judges are no longer authorized to conduct PI even based on Sec. 5 of Rule 112 (see
notes).
• The offense charged, direct assault against a public school teacher, has an imposable penalty
with a duration of 2 years, 4 months and 1 day to 6 years (prision correcional in its medium
and maximum periods). Thus, PI is clearly needed.
• It was therefore incumbent upon respondent judge to forward the records of the case to
the Office of the Provincial Prosecutor for PI, instead of conducting the PI himself.

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 • Rule 3.01, Canon 3 of the Code of Judicial Conduct mandates that a judge shall be faithful to
the law and maintain professional competence. When a law or a rule is basic, judges owe it to
their office to simply apply the law. Anything less is gross ignorance of the law.

(The next part is not really part of the syllabus topic anymore)
• On the alleged promise of respondent judge's wife about the debts, we find that complainant
did not substantiate her allegation. However, the judge did not deny the wife's debt. Canon 4
of the New Code of Judicial Conduct stresses the importance of propriety and the appearance
of propriety to the performance of all the activities of a judge. Respondent judge should bear
in mind that judges should avoid impropriety and the appearance of impropriety in all their
activities.
• On respondent judge's issuance of the warrant of arrest and reduction of the amount of bail, we
find such acts void for want of jurisdiction. While Rule 114 allows a judge to grant bail in
bailable offenses and to increase or decrease bail, it assumes that the judge has jurisdiction over
the case. In this case, respondent judge conducted the preliminary investigation without
authority and issued the warrant of arrest. And so, these acts are void.
• Considering that this is respondent judge's third offense, the second of which was also for gross
ignorance of the law, we hold that the penalty of six (6) months suspension from office without
salary and other benefits is in order.

DISPOSTIVE PORTION
WHEREFORE, we find respondent Judge Lauro G. Bernardo GUILTY of gross ignorance of the law and
SUSPEND him from office for a period of six (6) months without salary and other benefits, with a stern
warning that a repetition of the same or similar acts shall be dealt with more severely.

Other notes
SEC. 5. When warrant of arrest may issue. —
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(b) By the Municipal Trial Court. — When required pursuant to the second paragraph of section 1 of this
Rule, the preliminary investigation of cases falling under the original jurisdiction of the Metropolitan
Trial Court, Municipal Trial Court in Cities, Municipal Trial Court or Municipal Circuit Trial Court
SHALL be conducted by the prosecutor. The procedure for the issuance of a warrant of arrest by the
judge shall be governed by paragraph (a) of this section.