CITY FISCAL NESTORIO M. PLACER, ASST. CITY FISCALS AGELIO L. BRINGAS, ERNESTO M. BROCOY, RAFAEL V. FLORES, FELIXBERTO L. GUIRITAN, MACARIO B. BALANSAG AND ROSARITO F. DABALOS, A…

The legal question raised in this petition is whether the
certification of the investigating fiscal in the information as to the
existence of probable cause obligates respondent City Judge to issue a warrant
of arrest.

The antecedent facts are
not disputed.  During the period from
March 30 to April 14, 1982, petitioners, the City Fiscal of Butuan City and his assistants filed in the City Court of Butuan the following informations,
to wit:

These informations,
except the last four, docketed as Criminal Cases Nos. 12219, 12220, 12221 and 12222, were certified to by the respective investigating fiscals as
follows:  “that a preliminary
examination has been conducted by me in this case, having examined the
complainant and his witnesses; that on the basis of the sworn statements and
other evidence submitted before this Office, there is reasonable ground to
believe that the crime charged has been committed and that herein accused is
probably guilty thereof.” The informations in
Criminal Cases Nos. 12219 and 12220 bore the certification of 3rd Assistant
Fiscal Felixberto Guiritan
“that I am filing this information upon directive of the Minister of
Justice, who upon review of the resolution of the undersigned investigating
fiscal has found prima facie case against herein accused”,^[1] while the informations
in Criminal Cases Nos. 12221 and 12222 were certified to by 2nd Assistant
Fiscal Ernesto M. Brocoy in this wise:  “I am filing this information upon
directive of the City Fiscal pursuant to the provisions of P.D. No. 911, who,
upon review of the resolution of the investigating fiscal now on temporary
detail with the office of the Provincial Fiscal of Surigao
del Sur, has found prima facie case
against the herein accused.”^[2]

Following receipt of said informations,
respondent judge issued an order setting on April 5, 1982 the hearing of said criminal cases for the
purpose of determining the propriety of issuing the corresponding warrants of
arrest.  After said hearing, respondent
issued the questioned orders dated April 13, 15, 16 and 19, 1982, requiring
petitioners to submit to the court the affidavits of the prosecution witnesses
and other documentary evidence in support of the informations
to aid him in the exercise of
his power of judicial review of the findings of probable cause by petitioners.^[3]

Petitioners filed two separate motions for reconsideration of
said orders, contending that under P.D. Nos. 77 and 911, they are authorized to
determine the existence of a probable cause in a preliminary
examination/investigation, and that their findings as to the existence thereof
constitute sufficient basis for the issuance of warrants of arrest by the
court.^[4]
On April 28, 1982,
respondent judge denied said motions and reiterated his order to petitioners to submit the supporting affidavits and other
documents within five (5) days from notice.^[5]

Hence, petitioners filed this petition for certiorari and mandamus
to set aside the aforesaid orders and to compel respondent to issue the
warrants of arrest in Criminal Cases Nos. 12209-12222.

Meanwhile, the
respondent, in addition to his duties as presiding judge of Branch I of the
City Court of Butuan, was also assigned to preside
over Branch II of said court, as Judge Jesus Ruiz, presiding judge of said sala, had retired from the service.  The informations
filed by petitioners in Branch II likewise remained dormant because of
respondent’s firm refusal to issue the corresponding warrants of arrest for
want of affidavits of the witnesses. 
Thus, as disclosed by petitioner’s urgent motion,^[6] no warrants had been issued in 113 informations as of July 15, 1982.

On July 12,
1982, respondent
judge received Our May 19, 1982 Resolution requiring him to comment on the
petition.  However, interpreting the same
as a denial of the petition itself, respondent issued on the following
day, July 13, an Omnibus Order directing petitioners to submit immediately the
supporting affidavits and other evidence in Criminal Cases Nos.
12209-12222.  Having failed to secure a
reconsideration of said Omnibus Order, petitioners finally submitted the required
affidavits and documents on July 15,
1982 in order to avoid further delay in the prosecution of these
cases.

This move on the part of
the petitioners would have rendered the instant petition moot and
academic.  But while respondent gave due
course to some of said cases either by issuing the warrants of arrest or taking
some other appropriate action,^[7] he refused to issue the warrants in Criminal
Cases Nos. 12417, 12418, 12419, 12420 and 12422, and instead ordered the
records thereof remanded to the City Fiscal “for further preliminary
investigation or reinvestigation,” for on the bases of said affidavits,
respondent found no prima facie case against the accused.

Petitioners therefore filed a motion with this Court to restrain
respondent from enforcing the orders subject of the main petition and to compel
him to accept, and take cognizance of, all the informations filed in his court.  They contend that the fiscal’s
certification in the information of the existence of probable cause constitutes
sufficient justification for the judge to issue a warrant of arrest; and that
such certification binds the judge, it being supported by the presumption that
the investigating fiscal had performed his duties regularly and completely.

Upon the other hand, respondent justifies his order as an
exercise of his judicial power to review the fiscal’s
findings of probable cause.  He further
maintains that the failure of petitioners to file the required affidavits
destroys the presumption of regularity in the performance of petitioners’
official duties, particularly in the light of the long standing practice of the
Office of the City Fiscal of Butuan of attaching to
the informations filed with the court the affidavits
of prosecution witnesses and other documentary evidence presented during the
preliminary investigation.

The issue to be resolved
is whether or not the respondent city judge may, for the purpose of issuing a
warrant of arrest, compel the fiscal to submit to the court the supporting
affidavits and other documentary evidence presented during the preliminary
investigation.

We sustain the position
of respondent judge.

The primary requirement
for the issuance of a warrant of arrest is the existence of probable
cause.  Section 3, Article IV of the 1973
Constitution provides that –

“x x x no search warrant or warrant
of arrest shall issue except upon probable cause to be determined by the judge,
or such other responsible officer, as may be recognized by law, after
examination under oath or affirmance of the
complainant and the witnesses he may produce x x x.”

P.D. No. 911 authorizes
the fiscal or state prosecutor to determine the existence of probable
cause.  Thus,

“If on the basis of complainant’s sworn statements and
documents submitted, the investigating fiscal or state prosecutor finds no
probable cause to conduct a preliminary investigation, he shall dismiss the
case.  If probable cause is established
by complainant’s evidence, he shall notify the respondent by issuing a subpoena
x x x.  (Sec. 1 [b], RA 5180, as amended by P.D. Nos.
77 and 911).

“The fiscal or state prosecutor shall certify under oath in
the information to be filed by him that he has examined the complainant and his
witnesses; that on the basis of the sworn statements and other evidence
submitted before him there is reasonable ground to believe that a crime has
been committed and that the accused is probably guilty thereof, x x x” (Sec. 1 [d], id.).

There is thus no dispute
that the judge may rely upon the fiscal’s
certification of the existence of probable cause and, on the basis thereof,
issue a warrant of arrest.  But does such
certification bind the judge to come out with the warrant?  We answer this query in the negative.  The issuance of a warrant is not a mere
ministerial function; it calls for the exercise of judicial discretion on the
part of the issuing magistrate.  This is
clear from the following provisions of Section 6, Rule 112 of the Rules of
Court:

“Warrant of arrest, when issued. – If the judge be satisfied
from the preliminary examination conducted by him or by the investigating
officer that the offense complained of has been committed and that there is
reasonable ground to believe that the accused has committed it, he must issue a
warrant or order for his arrest.”

Under this section, the judge must satisfy himself of the
existence of probable cause before issuing a warrant or order of arrest. 
If on the face of the information the judge finds no probable cause, he
may disregard the fiscal’s certification and require the
submission of the affidavits of witnesses
to aid him in arriving at a conclusion as to the existence of a probable
cause.  This has been the rule since U.S. vs. Ocampo^[8] and Amarga vs. Abbas^[9].  And
this evidently is the reason for the issuance by respondent of the questioned
orders of April 13, 15, 16, 19, 1982 and July 13, 1982. 
Without the affidavits of the prosecution witnesses and other evidence
which, as a matter of long-standing practice had been
attached to the informations filed in his sala, respondent found the informations
inadequate bases for the determination of probable cause.  For as the ensuing events would show, after
petitioners had submitted the required affidavits, respondent wasted no time in
issuing the warrants of arrest in the cases where he was satisfied that
probable cause existed.

Germane to the issue at hand is the Rule on Summary Procedure in
Special Cases^[10]
applicable to the following, to wit:

“I.    B.
Criminal Cases:

(1.)   Violation of traffic laws, rules and
regulations;

(2)    Violations of the rental laws;

(3)    Violations of municipal or city ordinances;

(4)    All other criminal cases where the penalty
prescribed by law for the offense charged does not exceed six (6) months
imprisonment, or a fine of One Thousand Pesos [P1,000.00], or both,
irrespective of other imposable penalties, accessory or otherwise, or of the
civil liability arising therefrom; Provided, however,
that in offenses involving damage to property through reckless negligence, this
Rule shall govern where the imposable fine does not exceed Ten Thousand Pesos
[P10,000.00].”

In
said cases, the filing of the affidavits of witnesses with the court is
mandatory.  Section 9, par. 2 of said
Rule prescribes that “the complaint or information must be accompanied by
the affidavits of the complainant and of his witnesses in such number of copies
as there are defendants plus two (2) copies for the court’s files.”

Section 10 of the Summary
Rule provides:

“On the basis of the complaint or information and the
affidavits accompanying the same, the court shall make a preliminary
determination whether to dismiss the case outright for being patently without
basis or merit, or to require further proceedings to be taken.  In the latter case, the court may set the
case for immediate arraignment of an accused under custody, and if he pleads
guilty, may render judgment forthwith. 
If he pleads not guilty, and in all other cases, the court shall issue
an order, accompanied by copies of all the affidavits submitted by the
complainant, directing the defendant(s) to appear and submit his
counter-affidavit and those of his witnesses at a specified date not later than
ten (10) days from receipt thereof.

“Failure on the part of the defendant to appear whenever
required, shall cause the issuance of a warrant for his arrest if the court
shall find that a probable cause exists after an examination in writing and
under oath or affirmation of the complainant and his witnesses.

The obvious purpose of requiring the submission of affidavits of the complainant and
of his witnesses is to enable the court to determine whether to dismiss the
case outright or to require further proceedings.

One last point.  It appears
that after petitioners had submitted the required affidavits of witnesses, the
respondent judge ordered Criminal Cases Nos. 12417, 12418, 12419, 12420 and
12420 remanded to the City Fiscal for further preliminary investigation or
reinvestigation.  We hold that respondent
did not abuse his discretion in doing so. 
From the informations and affidavits presented
to him, he found the charges patently without basis or merit.  For respondent to issue the warrants of
arrest and try the accused would only expose the latter to unnecessary harrassment, anxiety and expense.  And as already pointed out, under the Rule on
Summary Procedure in Special Cases, the respondent judge has the power to order
the outright dismissal of the charge if, from the information and the
affidavits attached thereto, he finds the same to be patently without basis or
merit.

WHEREFORE, the petition is hereby dismissed.  No costs.

SO ORDERED.

Makasiar (Chairman), Concepcion, Jr., Guerrero, Abad Santos, and De Castro, JJ., concur.

Aquino, J., no part.

^[1]
Annexes K and L, pp. 33-34, 35-36, Rollo.

^[2]
Annexes M and N, pp. 38-40, Rollo.

^[3]
Annexes 2, AA, BB and CC, pp.
69-74, Rollo.

^[4]
Annexes DD and EE, pp. 75-77, Rollo.

^[5]
Annexes FF, p. 82, Rollo.

^[6]
Dated July 15, 1982, p.
103, Rollo.

^[7]
Certification of the Clerk of Court dated August 20, 1982, p. 136, Rollo.

^[8]
18 Phil. 1.

^[9]
98 Phil. 739.

^[10]
This Summary Rule took effect on August
1, 1983.