FIRST DIVISION

[A.M. No. MTJ-12-1804. July 30, 2012.]

(Formerly A.M. OCA I.P.I. No. 09-2179-MTJ)

CITY PROSECUTOR ARMANDO P. ABANADO , complainant, vs.

JUDGE ABRAHAM A. BAYONA, Presiding Judge Municipal
Trial Court in Cities, Branch 7, Bacolod City, respondent.

DECISION

LEONARDO-DE CASTRO, * J : p

The case now before this Court sprang from Criminal Case No. 09-03-
16474, entitled People of the Philippines v. Cresencio Palo, Sr. 1 On March 24,
2009, complainant City Prosecutor Armando P. Abanado filed the Information 2
in the Municipal Trial Court in Cities, Bacolod City, which was eventually raffled
to Branch 7 thereof presided by respondent Judge Abraham A. Bayona.

On April 13, 2009, respondent issued the following order in Criminal Case
No. 09-03-16474 in connection with the issuance of a warrant of arrest against
the accused therein:
Pursuant to [Section] 6, paragraph (a) in relation to [paragraph]
b, Rule 112 of the Revised Rules of Criminal Procedure, the Office of
the City Prosecutor of Bacolod City is hereby ordered to present
additional evidence, relevant records and documents to enable this
Court to evaluate and determine the existence of probable cause, to
wit:

1. Copy of the Memorandum of Preliminary Investigation;

2. Resolution of the Investigating Prosecutor on Record,
Prosecutor Dennis S. Jarder [Jarder Resolution];

3. Memorandum of the transfer of case assignment from

designated Investigating Prosecutor to the City Prosecutor;
[and]

4. Exhibit to the Court, the copies of all documents submitted

by the complainant and the respondents [therein] for
comparison, authentication and completeness of the
photocopies attached to the information.

Compliance is required within five (5) days from receipt of this Order. 3

On April 29, 2009, the Office of the City Prosecutor submitted a copy of
the Memorandum of Preliminary Investigation and informed respondent that
the documents submitted by the parties for preliminary investigation were
already appended to the complaint, thus, taking care of items 1, 2, and 4
required by the April 13, 2009 Order.
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 With respect to item 3 thereof, complainant, in a letter also dated April 29,
2009, explained that there was no memorandum of transfer of the case from
the investigating prosecutor, Assistant City Prosecutor (ACP) Dennis S. Jarder,
to him. 4 In his aforementioned letter, complainant discussed that the case was
initially handled by ACP Jarder who found no probable cause against Cresencio
Palo, Sr., accused in Criminal Case No. 09-03-16474. However, complainant,
upon review pursuant to Section 4, Rule 112 of the Revised Rules of Criminal
Procedure, 5 found otherwise; that is, there was probable cause against Palo.
Thus, complainant disapproved ACP Jarder's Resolution and filed the
Information in court. 6 SEHaTC

Respondent was nonetheless dissatisfied with the explanation of the

Office of the City Prosecutor. In an Order dated May 5, 2009, 7 respondent
stated that the Jarder 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.
WHEREFORE, in view of the foregoing premises, [complainant] is
hereby ordered to complete the records of this case by producing in
Court this official and public document (Resolution of the Investigating
Prosecutor Dennis S. Jarder), required by the Revised Rules o[f]
Criminal Procedure, Rules of Court. Compliance is required within five
(5) days from receipt hereof. Fail not under the pain of Contempt. 8

On May 11, 2009, in view of the foregoing order, the Office of the City
Prosecutor again sent a letter 9 explaining the impossibility of submitting the
Jarder Resolution to the court. The letter stated that the Jarder Resolution was
no longer part of the records of the case as it was disapproved by complainant
and it attached a letter of Chief State Prosecutor Jovencito Zuño which reads:
This refers to your letter dated April 18, 2008. For your
information, all resolutions prepared by an Investigating Prosecutor
after preliminary investigation shall form part of the record of the case.
But if they have been disapproved by the Provincial/City Prosecutor,
the same shall not be released to the parties and/or their counsels.
Thus, only resolutions approved by the Provincial/City Prosecutor for
promulgation and release to the parties shall be made known to the
parties and/or their counsel. 10

Respondent did not accept the explanations made by the Office of the
City Prosecutor and insisted instead that the Jarder Resolution should form part
of the records of the case. Thus, in an Order 11 dated May 14, 2009, he required
complainant to explain within five days from the receipt thereof why he should
not be cited for contempt under Section 3, Rule 71 of the Rules of Court. 12
Complainant received the aforementioned order on May 15, 2009 and
requested for a ten-day extension to comply with it. 13

In an Order 14 dated May 19, 2009, respondent denied the request of a

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 ten-day extension and set the hearing for the contempt charges on May 26,
2009. He likewise ordered the Clerk of Court to issue a subpoena duces tecum
ad testificandum to ACP 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 15
against respondent on May 20, 2009 claiming:
4. That [Complainant] is now in a quandary because despite
the fact that the production of the disapproved resolution is not
required under Circular Resolution No. 12 for purposes of issuance of
warrant of arrest[,] the Court is very much interested in its production
and adding insult to injury in foisting to cite in contempt the City
Prosecutor for its non-production.
5. That the issuance of said order is capricious and whimsical
and issued with grave abuse of discretion. Because as it appears now,
the presiding judge is very much interested in the outcome of this
case, thereby showing bias and prejudice against the prosecution. 16

Complainant likewise filed a petition for certiorari with a prayer for the
issuance of a temporary restraining order (TRO) to restrain respondent from
proceeding 17 with the May 26, 2009 hearing of the contempt proceedings.
Complainant's prayer for a TRO was granted in an Order dated May 25, 2009 by
Presiding Judge Pepito B. Gellada of the Regional Trial Court, Branch 53,
Bacolod City.
In an Order 18 dated June 15, 2009, Judge Gellada granted the petition for
certiorari (Gellada Order) holding that:
[W]hen 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. CSIDTc

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. . . . . 19 (Emphases supplied.)

The records thereafter make no mention of what happened in Criminal

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 Case No. 09-03-16474.

On July 10, 2009, complainant executed the present administrative

complaint and the same was received by the Office of the Court Administrator
(OCA) on August 20, 2009. 20 Complainant alleged therein that respondent was
guilty of gross ignorance of the law or procedure, 21 gross misconduct, 22 and
violation of Supreme Court Circular No. 12 dated June 30, 1987. 23 He
essentially asserted that respondent unduly burdened himself by obsessing
over the production of the records of the preliminary investigation, especially
the Jarder Resolution.
Respondent, in his Comment with Counter-Complaint for Disbarment of
Prosecutor Abanado, 24 essentially reiterated the importance of the Jarder
Resolution in deciding whether to issue a warrant of arrest in Criminal Case No.
09-03-16474. He stated that the document was "material and relevant in the
proper conduct of preliminary investigation and the neutral, objective and
circumspect appreciation of the Judge of the evidence . . . for a proper and just
determination whether probable cause exist[s] or not for [the] possible
issuance of a warrant of arrest." 25 As for respondent's countercharge, he
claimed complainant should be disbarred for (a) filing a malicious and
unfounded administrative complaint; (b) disrespect and disobedience to judicial
authority; (c) violation of the sanctity of public records; (d) infidelity in the
custody of documents; and (e) misconduct and insubordination. 26
In a Reply 27 dated October 8, 2009, complainant vehemently denied
respondent's charges against him and claimed that they were merely meant to
discourage him from pursuing his just and valid administrative complaint.
On February 2, 2011, the OCA submitted its report and recommendation.
28 It noted the June 15, 2009 Gellada 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. Thus, the OCA held that complainant cannot be held guilty of
contempt. Nevertheless, because there was no showing that respondent was
motivated by bad faith and settled is the rule that the acts of a judge in his
judicial capacity are not subject to the disciplinary action, it recommended that:
(a) The administrative complaint against [respondent] be RE-
DOCKETED as a regular administrative case; and,
(b) [Respondent] be REPRIMANDED with STERN WARNING that
a repetition of the same or similar offenses will be dealt with
more severely. 29

We adopt the factual findings of the OCA but find reason not to impose
the recommended penalty of reprimand on respondent.

We are tasked to determine whether respondent was administratively

liable for gross ignorance of the law, gross misconduct and violation of
Supreme Court Circular No. 12 dated June 30, 1987 for requiring the Office of
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 the City Prosecutor to submit the Jarder Resolution to the court despite the
reversal thereof.

The conduct of a preliminary investigation is primarily an executive

function. 30 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. An examination of the 2008
Revised Manual for Prosecutors of the Department of Justice-National
Prosecution Service 31 (DOJ-NPS Manual), therefore, is necessary.
The pertinent provisions of the DOJ-NPS Manual are as follows:
J. PREPARATION OF THE RESOLUTION
1. When There is Lack of Probable Cause ACTEHI

If the investigating prosecutor does not find

sufficient basis for the prosecution of the
respondent, he shall prepare the resolution
recommending the dismissal of the complaint.
xxx xxx xxx

3. Form of the Resolution and Number of Copies

The resolution shall be written in the official
language, personally and directly prepared and signed by
the investigating prosecutor. It shall be prepared in as
many copies as there are parties, plus five (5) additional
copies.

xxx xxx xxx

e. Contents of the Body of the Resolution
In general, the body of [the] resolution should
contain:
1. a brief summary of the facts of the
case;
2. a concise statement of the issues
involved;
3. applicable laws and jurisprudence;
and

4. the findings, including an

enumeration of all the
documentary evidence submitted
by the parties and
recommendations of the
investigating prosecutor.

All material details that should be found in the

information prepared by the Investigating Prosecutor
shall be stated in the resolution.
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 xxx xxx xxx

K. TRANSMITTAL OF THE RECOMMENDATORY RESOLUTION AND

INFORMATION TOGETHER WITH THE COMPLETE RECORD OF THE
CASE

The investigating prosecutor shall forward his

[recommendation] and Information, together with
the complete records of the case, to the Chief
State/Regional State/Provincial/City Prosecutor
concerned within five (5) days from the date of his
resolution.
xxx xxx xxx
3. Documents to be Attached to the Information

An information that is filed in court shall, as far

as practicable, be accompanied by a copy of the
resolution of the investigating prosecutor, the
complainant's affidavit, the sworn statements of the
prosecution's witnesses, the respondent's counter-affidavit
and the sworn statements of his witnesses and such other
evidence as may have been taken into account in arriving
at a determination of the existence of probable cause.
4. Confidentiality of Resolutions
All resolutions prepared by an investigating
prosecutor after preliminary investigation, whether
his recommendation be for the filing or dismissal of the
case, shall be held in strict confidence and shall not
be made known to the parties, their counsels and/or
to any unauthorized person until the same shall
have been finally acted upon by the Chief
State/Regional State/Provincial/City Prosecutor or
his duly authorized assistant and approved for
promulgation and release to the parties.
xxx xxx xxx
L. ACTION OF THE CHIEF STATE/REGIONAL STATE/PROVINCIAL OR
CITY PROSECUTOR ON THE RECOMMENDATORY RESOLUTION
The Chief State/Regional State/Provincial or City
Prosecutor concerned shall act on all resolutions within a
period of thirty (30) days from receipt thereof, extendible
for another thirty (30) days in cases involving complex
issues and/or heavy workload of the head of office, by
either:DHcSIT

xxx xxx xxx

3. reversing the recommendation of the investigating
prosecutor, in which case, the Chief State/Regional
State/Provincial or City Prosecutor

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 a. may file the corresponding Information in court
(except the Regional State Prosecutor); or
b. direct any other state prosecutor or assistant
prosecutor, as the case may be, to do so.
In both instances, there is no more need for the head
of office concerned to conduct another preliminary
investigation. (Emphases supplied.)

Based on the foregoing, the guidelines for the documentation of a resolution

by an investigating prosecutor, who after conducting preliminary
investigation, finds no probable cause and recommends a dismissal of the
criminal complaint, can be summed as follows:

(1) the investigating prosecutor prepares a resolution

recommending the dismissal and containing the following:

a. summary of the facts of the case;

b. concise statement of the issues therein; and
c. his findings and recommendations.

(2) within five days from the date of his resolution, the
investigating fiscal shall forward his resolution to the
provincial, city or chief state prosecutor, as the case may be,
for review;
(3) if the resolution of the investigating prosecutor is reversed
by the provincial, city or chief state prosecutor, the latter
may file the information himself or direct another assistant
prosecutor or state prosecutor to do so;
(4) the resolution of the investigating prosecutor shall be
strictly confidential and may not be released to the parties,
their counsels and/or any other unauthorized person until the
same shall have been finally acted upon by the provincial,
city or chief state prosecutor or his duly authorized assistant
and approved for promulgation and release to the parties;
and
(5) that the resolution of the investigating prosecutor, the
complainant's affidavit, the sworn statements of the
prosecution's witnesses, the respondent's counter-affidavit
and the sworn statements of his witnesses and such other
evidence, as far as practicable , shall be attached to the
information.
We find that there is nothing in the DOJ-NPS Manual requiring the removal
of a resolution by an investigating prosecutor recommending the dismissal of a
criminal complaint after it was reversed by the provincial, city or chief state
prosecutor.
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 Nonetheless, we also note that attaching such a resolution to an
information filed in court is optional under the aforementioned manual. The
DOJ-NPS Manual states that the resolution of the investigating prosecutor
should be attached to the information only "as far as practicable." Thus, such
attachment is not mandatory or required under the rules.

In view of the foregoing, the Court finds that respondent erred in insisting
on the production of the Jarder Resolution when all other pertinent documents
regarding the preliminary investigation have been submitted to his court, and
in going so far as to motu proprio initiating a proceeding for contempt against
complainant.
However, not every judicial error is tantamount to ignorance of the law
and if it was committed in good faith, the judge need not be subjected to
administrative sanction. 32 While complainant admitted that he erred in
insisting on the production of the Jarder Resolution despite the provisions of the
DOJ-NPS Manual, such error cannot be categorized as gross ignorance of the
law as he did not appear to be motivated by bad faith. Indeed, the rules of
procedure in the prosecution office were not clear as to whether or not an
investigating prosecutor's resolution of dismissal that had been reversed by the
city prosecutor should still form part of the records.
Neither did respondent's action amount to gross misconduct. Gross
misconduct presupposes evidence of grave irregularity in the performance of
duty. 33 In the case at bar, respondent's act of requiring complainant to explain
why he should not be cited in contempt for his failure to submit the Jarder
Resolution in court was in accordance with established rules of procedure.
Furthermore, complainant did not abuse his contempt power as he did not
pursue the proceedings in view of the May 29, 2009 and June 15, 2009 Gellada
orders. 34 Lastly, as previously discussed, respondent issued those orders in
good faith as he honestly believed that they were necessary in the fair and just
issuance of the warrant of arrest in Criminal Case No. 09-03-16474. CaAIES

As far as the disbarment charges against complainant are concerned,

under the Rules of Court, complaints for disbarment against a lawyer are
ordinarily referred to an investigator who shall look into the allegations
contained therein. 35 However, in the interest of expediency and convenience,
as the matters necessary for the complete disposition of the counter-complaint
are found in the records of the instant case, we dispose of the same here. We
find no merit in the countercharges. It appears from the records that
complainant's non-submission of the Jarder Resolution was motivated by his
honest belief that his action was in accord with the procedures in the
prosecution office. It likewise cannot be said that the filing of the present
administrative case against Judge Bayona was tainted with improper motive or
bad faith.
ACCORDINGLY, the complaint against Judge Abraham A. Bayona of the
Municipal Trial Court in Cities, Bacolod City, Branch 7 is DISMISSED.
The counter-complaint against City Prosecutor Armando P. Abanado is
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 likewise DISMISSED.
SO ORDERED.

Bersamin, Del Castillo, Villarama, Jr. and Perlas-Bernabe, ** JJ., concur.

Footnotes
*Per Special Order No. 1226 dated May 30, 2012.
**Per Special Order No. 1227 dated May 30, 2012.

1.For Violation of Section 12, Republic Act No. 6539 or the Anti-Carnapping Act of
1972.

2.Rollo , pp. 17-18.

3.Id. at 19.
4.Id. at 22. Signed by Associate Prosecution Attorney I Lady Liza Rodrigazo-Placido.
5.RULES OF COURT, Rule 112, Section 4 provides:
Section 4. Resolution of investigating prosecutor and its review. — If the
investigating prosecutor finds cause to hold the respondent for trial, he shall
prepare the resolution and information. He shall certify under oath in the
information that he, or as shown by the record, an authorized officer, has
personally examined the complainant and his witnesses; that there is
reasonable ground to believe that a crime has been committed and that the
accused is probably guilty thereof; that the accused was informed of the
complaint and of the evidence submitted against him; and that he was given
an opportunity to submit controverting evidence. Otherwise, he shall
recommend the dismissal of the complaint.
Within five (5) days from his resolution, he shall forward the record of the
case to the provincial or city prosecutor or chief state prosecutor, or to the
Ombudsman or his deputy in cases of offenses cognizable by the
Sandiganbayan in the exercise of its original jurisdiction. They shall act on
the resolution within ten (10) days from their receipt thereof and shall
immediately inform the parties of such action.
No complaint or information may be filed or dismissed by an investigating
prosecutor without the prior written authority or approval of the provincial or
city prosecutor or chief state prosecutor or the Ombudsman or his deputy.

Where the investigating prosecutor recommends the dismissal of

the complaint but his recommendation is disapproved by the
provincial or city prosecutor or chief state prosecutor or the
Ombudsman or his deputy on the ground that a probable cause
exists, the latter may, by himself, file the information against the
respondent, or direct another assistant prosecutor or state
prosecutor to do so without conducting another preliminary
investigation.
If upon petition by a proper party under such rules as the Department of
Justice may prescribe or motu proprio, the Secretary of Justice reverses or
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 modifies the resolution of the provincial or city prosecutor or chief state
prosecutor, he shall direct the prosecutor concerned either to file the
corresponding information without conducting another preliminary
investigation, or to dismiss or move for dismissal of the complaint or
information with notice to the parties. The same rule shall apply in
preliminary investigations conducted by the officers of the Office of the
Ombudsman. (Emphasis supplied.)
6.Rollo , pp. 20-21.

7.Id. at 23-25.
8.Id. at 25.
9.Id. at 26.
10.Id. at 92.
11.Id. at 27-29.

12.RULE OF COURT, Rule 71, Section 3 provides:

SEC. 3. Indirect contempt to be punished after charge and hearing. — After a
charge in writing has been filed, and an opportunity given to the respondent
to comment thereon within such period as may be fixed by the court and to
be heard by himself or counsel, a person guilty of any of the following acts
may be punished for indirect contempt:
(a) Misbehavior of an officer of a court in the performance of his official
duties or in his official transactions;
(b) Disobedience of or resistance to a lawful writ, process, order, or judgment
of a court, including the act of a person who, after being dispossessed or
ejected from any real property by the judgment or process of any court of
competent jurisdiction, enters or attempts or induces another to enter into or
upon such real property, for the purpose of executing acts of ownership or
possession, or in any manner disturbs the possession given to the person
adjudged to be entitled thereto;
(c) Any abuse of or any unlawful interference with the processes or
proceedings of a court not constituting direct contempt under section 1 of
this Rule;
(d) Any improper conduct tending, directly or indirectly, to impede, obstruct,
or degrade the administration of justice;
(e) Assuming to be an attorney or an officer of a court, and acting as such
without authority;
(f) Failure to obey a subpoena duly served;
(g) The rescue, or attempted rescue, of a person or property in the custody
of an officer by virtue of an order or process of a court held by him.
But nothing in this section shall be so construed as to prevent the court from
issuing process to bring the respondent into court, or from holding him in
custody pending such proceedings.
13.Rollo , p. 30.
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 14.Id. at 30-31.
15.Id. at 32-33.
16.Id. at 33.
17.Docketed as Civil Case No. 09-13383.
18.Rollo , pp. 35-42.

19.Id. at 40-41.
20.Id. at 2-10.
21.RULES OF COURT, Rule 140, Section 8 (9).
22.Id., Section 8 (3).
23.A hearing is not necessary therefor. In satisfying himself of the existence of
probable cause for the issuance of a warrant of arrest, the judge, following
the established doctrine and procedure, shall either (a) personally evaluate
the report and the supporting documents submitted by the prosecutor
regarding the existence of probable cause and, on the basis thereof, issue a
warrant of arrest, or (b) if on the face of the information he finds no probable
cause, he may disregard the prosecutor's certification and require the
submission of the supporting affidavits of witnesses to aid him in arriving at a
conclusion as to the existence of probable cause. (De los Santos-Reyes v.
Judge Montesa, Jr., 317 Phil. 101, 111 (1995).
24.Rollo , pp. 57-82; dated October 1, 2009.
25.Id. at 61.

26.Id. at 79-80.
27.Id. at 102-107.

28.Id. at 118-121.

29.Id. at 121.
30.Metropolitan Bank and Trust Company v. Tobias, G.R. No. 177780, January 25,
2012; People v. Court of Appeals and Cerbo , 361 Phil. 401, 410 (1999).

31.Superseding Department Order No. 153, s. 1996.

32.Amante-Descallar v. Judge Ramas, A.M. No. RTJ-08-2142, March 20, 2009, 582
SCRA 22.

33.See Ocampo v. Arcaya-Chua, A.M. OCA I.P.I. No. 07-2630-RTJ, April 23, 2010,
619 SCRA 59, 92-93.
34.Cf. Tabujara III v. Gonzales-Asdala, A.M. No. RTJ-08-2126, January 20, 2009, 576
SCRA 404, 413-414.

35.See RULES OF COURT, Rule 139-B.

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