arraignment and the pre-trial.

There is nothing irregular in the

course of action taken by respondent judge.

_______________

* SECOND DIVISION.

VOL. 452, FEBRUARY 28, 2005 365

Sesbreño vs. Aglugub 366

A.M. No. MTJ-05-1581. February 28, 2005. 366 SUPREME COURT REPORTS ANNOTATED
(Formerly OCA-IPI No. 04-1547-MTJ)
Sesbreño vs. Aglugub
PETER L. SESBREÑO, complainant, vs. JUDGE GLORIA
B. AGLUGUB, Metropolitan Trial Court, Branch 2, San Same; Same; Same; The issuance of a warrant of arrest for
Pedro, Laguna, respondent. non-appearance of the accused during trial is discretionary upon
the judge.—Neither is there merit in complainant’s contention
Administrative Law; Criminal Procedure; Preliminary that respondent judge should have issued a warrant of arrest
Investigation; A preliminary investigation is required before the against the accused for their failure to appear during the initial
filing of a complaint or information for an offense where the presentation of evidence for the prosecution for the charge of
penalty prescribed by law is at least four (4) years, two (2) months Usurpation of Authority. The issuance of a warrant of arrest for
and one (1) day without regard to the fine.—A preliminary non-appearance of the accused during trial is discretionary upon
investigation is required before the filing of a complaint or the judge. Indeed, there is nothing in the Rules which requires a
information for an offense where the penalty prescribed by law is judge to issue a warrant of arrest for non-appearance of the
at least four (4) years, two (2) months and one (1) day without accused during trial.
regard to the fine. Thus, a preliminary investigation is not Same; Judges; For liability to attach for ignorance of the law,
required nor was one conducted for the charge of violation of Art. the assailed order, decision or actuation of the judge in the
177 of the Revised Penal Code which is punishable by prision performance of official duties must not only be found to be
correccional in its minimum and medium periods or from six (6) erroneous but most importantly it must be established that he was
months and one (1) day to four (4) years and two (2) months. moved by bad faith, dishonesty or some other like motive.—For
Same; Same; Same; Whether it is necessary to place the liability to attach for ignorance of the law, the assailed order,
accused in custody in order not to frustrate the ends of justice is decision or actuation of the judge in the performance of official
left to the judge’s sound judgment.—It is thus not obligatory but duties must not only be found to be erroneous but, most
merely discretionary upon the investigating judge to issue a importantly, it must be established that he was moved by bad
warrant for the arrest of the accused even after having personally faith, dishonesty or some other like motive. Respondent judge’s
examined the complainant and his witnesses in the form of actuations are hardly indicative of bad faith or any motive to
searching questions for the determination of whether probable delay the case which characterizes the offense of gross ignorance
cause exists. Whether it is necessary to place the accused in of the law.
custody in order not to frustrate the ends of justice is left to the
ADMINISTRATIVE MATTER in the Supreme Court. Gross
judge’s sound judgment.
Ignorance of the Law, Neglect of Duty and Conduct
Same; Same; Same; The judge is not required to transmit the Prejudicial to the Best Interest of the Service.
records of the case to the prosecutor for review.—The judge is not
required to transmit the records of the case to the prosecutor for The facts are stated in the resolution of the Court.
review. In this case, respondent judge, following the foregoing
procedure, found probable cause to hold the accused for trial for
the charge of Usurpation of Authority and forthwith set their
 violation of R.A. 10 was indeed alleged in the complaint for
Usurpation of Authority but was not resolved due to over-
RESOLUTION

_______________
TINGA, J.:
1
2 Id., at p. 15.
Peter L. Sesbreño filed a Verified Complaint dated March 3 Id., at pp. 66-68.
2, 2004 against respondent judge, Hon. Gloria B. Aglugub, 4 The pertinent provision reads:
charging the latter with Gross Ignorance of the Law,
Sec. 1. Any person who with or without pretense of official position, shall perform
Neglect of Duty and Conduct Prejudicial to the Best
any act pertaining to the Government, or to any person in authority or public
Interest of the
officer, without being lawfully entitled to do so, shall be punished with
imprisonment for not less than two years, nor more than ten years.
_______________
5 Supra, note 1 at pp. 36-38.
1 Rollo, pp. 1-5.
368
367

368 SUPREME COURT REPORTS ANNOTATED

VOL. 452, FEBRUARY 28, 2005 367
Sesbreño vs. Aglugub
Sesbreño vs. Aglugub
sight. However, since the statute only applies to members
Service relative to Criminal Case No. 39806 entitled People of seditious organizations engaged
6 in subversive activities
v. Enrique Marcelino, et al. pursuant to People v. Lidres, and considering that the
It appears that complainant filed three (3) separate complaint failed to allege this element, respondent judge
complaints against Enrique Marcelino (Marcelino), Susan found no probable cause and dismissed the charge for
Nuñez (Nuñez), Edna Tabazon (Tabazon) and Fely violation of R.A. 10. Further, citing Sec. 6(b), Rule 112 of
Carunungan (Carunungan), all from the Traffic the Revised Rules of Criminal Procedure (Rules),
Management Unit of San Pedro, Laguna, for Falsification, respondent judge denied complainant’s prayer for the
Grave Threats and Usurpation of Authority. The three (3) issuance of warrants of arrest against the accused and
cases were assigned to respondent judge’s branch and ordered the records forwarded to the Provincial
subsequently consolidated for disposition. Prosecutor’s Office (PPO) for review.
After conducting a preliminary examination,
2 respondent Thereafter, complainant’s counsel, Atty. Raul Sesbreño
issued a Consolidated Resolution dated May 6, 2003, (Atty. Sesbreño), filed a Motion for Reconsideration and
dismissing the cases for Falsification and Grave Threats for Urgent Ex-Parte Motion for Issuance of Warrant of Arrest
lack of probable cause, and setting for arraignment the Against Non-Appearing Accused. Respondent judge,
case for Usurpation of Authority. Except for Marcelino who however, did not act on these motions allegedly because the
failed to appear during the arraignment, all of the accused court had already lost jurisdiction over the case by then.
were arraigned. Respondent judge issued a warrant for The PPO affirmed respondent’s order and remanded the
Marcelino’s arrest. Subsequently, complainant 3 filed a case to the court for further proceedings on the charge of
Private Complainants’ Urgent Manifestation dated Usurpation of Authority.
February 6, 2004 alleging that the accused 4 were also During the hearing of the case on February 14, 2004,
charged with violation of Republic Act No. 10 (R.A. 10) and Tabazon, Carunungan and Nuñez did not appear. Atty.
praying that warrants of arrest be likewise issued against Sesbreño, however, did not move for the issuance of
all of the accused. warrants of arrest against them. Neither did he object to
Acting5 upon this manifestation, respondent judge issued the cancellation of the scheduled hearing.
an Order dated February 12, 2004 stating that a charge for
 The foregoing circumstances brought about the filing of adds that respondent judge failed to comply with
the instant administrative complaint. Administrative Order No. 8 since she has yet to forward
Complainant contends that respondent judge violated her resolution to the Deputy Ombudsman.
Sec. 6(b), Rule 112 of the Rules when she refused to issue Moreover, complainant points out that the affidavit
warrants of arrest against the accused. Complainant also attached to his complaint was notarized by Atty. Corro as
faults respondent judge for allegedly motu proprio certified by a member of the latter’s staff. Complainant also
reconsidering her Consolidated Resolution dated May 6, disproves respondent judge’s allegation that Atty.
2003 and failing to order its transmittal to the Office of the Sesbreño is in the habit of filing administrative
Ombudsman within ten (10) days. complaints against judges,

_______________ _______________

6 108 Phil. 995 (1960). 7 Supra note 1 at pp. 51-59.

8 Id., at pp. 95-104.
369
370

VOL. 452, FEBRUARY 28, 2005 369

Sesbreño vs. Aglugub 370 SUPREME COURT REPORTS ANNOTATED
Sesbreño vs. Aglugub
In her Comment With 7 Motion To Dismiss The
Administrative Complaint dated March 26, 2004, explaining that the latter merely acted as counsel for
respondent judge counters that the issuance of a warrant of litigants who filed administrative complaints against
arrest is discretionary upon the judge. Since she found no certain judges. 9

indication that the accused would abscond, she found it In another Verified Complaint filed on March 18, 2004,
unnecessary to issue the warrant. Moreover, under complainant further charges respondent with violating Sec.
Republic Act No. 6770, otherwise known as the 9(b), Rule 112 of the Rules.
Ombudsman Act of 1989, the PPO has been designated as Respondent Judge filed a Comment 10 With Motion To
the Deputized Ombudsman Prosecutor. The PPO can take Dismiss Administrative Complaint dated May 7, 2004
action on similar cases for review and appropriate action. clarifying that contrary to complainant’s allegation, she did
Thus, she acted in accordance with law when she not conduct a preliminary investigation in the case for
forwarded the records of the case to the PPO for review and Usurpation of Authority. What was submitted for
not to the Office of the Ombudsman as complainant insists. preliminary investigation was the charge for violation of
Respondent judge further accuses complainant and Atty. R.A. 10. It was her resolution dismissing the charge for
Sesbreño of falsification, and the latter of violation of Rule violation of R.A. 10 which was transmitted to the PPO for
1.01 and Rule 10.01 of the Code of Professional appropriate action. However, since the charges for violation
Responsibility. Allegedly, the affidavit which was attached of R.A. 10 and Usurpation of Authority were contained in a
to the instant verified complaint was not notarized by Atty. single complaint, respondent judge deemed it proper to
Raul Corro as indicated therein. Further, Atty. Sesbreño forward the entire records to the PPO.
was allegedly convicted of Homicide and may have been Complainant filed a Complainant’s 11 Reply To
suspended from the practice of law. Respondent’s Comment Dated May 7, 2004 dated May 20,
Complainant reiterates his allegations in his 2004 substantially reiterating his allegations.
Complainant’s 8Reply To Respondent’s Comment Dated The Verified Complaint filed on March 18, 2004 was
March 26, 2004 dated May 11, 2004. He further contends treated as a supplemental
12 complaint per the notation in
that there is no provision in the Ombudsman Act of 1989 the Memorandum dated June 25, 2004.
specifically deputizing the PPO to be the “Deputized In sum, complainant asserts that respondent judge
Ombudsman Prosecutor” as respondent judge contends. He erred in conducting a preliminary investigation for the
charge of Usurpation of Authority; in not issuing warrants accordance with the procedure on preliminary investigation laid
of arrest for failure of the accused to appear during trial; in down in Sec. 3, Rule 112 of the Rules on Criminal Procedure.
issuing her Order dated February 12, 2004 dismissing the Respondent Judge also directed that the records of the case be
complaint for violation of R.A. 10; and in transmitting the forwarded to the Provincial Prosecutor’s Office on review. Sec. 5 of
records of the case to the PPO instead of the Office of the Rule 112 provides that the resolution of the Investigating Judge is
Ombudsman. subject to review by the provincial or city prosecutor, or the
The Office of the Court Administrator recommends that Ombudsman or his deputy, as the case may be.
the instant complaint be dismissed for lack of merit but It is respondent Judge’s contention that the resolution shall be
that re- reviewed by the Provincial Prosecutor. She explained that
pursuant to the Ombudsman Act of 1989, the Provincial
_______________ Prosecutor has jurisdiction to take cognizance of the charge of
Violation of R.A. No. 10.
9 Id., at pp. 113-117.
10 Id., at pp. 127-131.
_______________
11 Id., at pp. 163-174.
12 Id., at pp. 109-112. 13 The OCA further recommends that the complaint of respondent
judge against Atty. Raul H. Sesbreño be referred to the Office of the Bar
371 Confidant for proper disposition. Memorandum dated January 6, 2005.

372
VOL. 452, FEBRUARY 28, 2005 371
Sesbreño vs. Aglugub
372 SUPREME COURT REPORTS ANNOTATED

spondent judge should be reminded13 to be more circumspect Sesbreño vs. Aglugub

in the performance of her duties. It made the following
findings: However, Sec. 31 of Rep. Act No. 6770 or “The Ombudsman Act of
1989” provides that prosecutors can (be) deputized by the
A careful consideration of the records as well as the pertinent Ombudsman to act as special investigator or prosecutor only on
rules reveals that there is nothing in the Rules of Criminal certain cases. Such provision is not applicable to the issue at
Procedure which requires a judge to issue a warrant of arrest for hand. Therefore, respondent Judge erred when she forwarded the
the non-appearance of the accused during the trial. Hence, its case for review to the Provincial Prosecutor’s Office. Nonetheless,
issuance rests on the sound discretion of the presiding judge. complainant failed to show that respondent Judge was motivated
More so in this case, the private prosecutor did not move for the by bad faith when she issued the assailed order. At most, she is
issuance of such warrant. guilty of judicial error for which she could not be held
As regards the next issue, Rep. Act No. 10 penalizes a person administratively
14 accountable absent any proof of fraud or other
who, with or without pretense of official position, shall perform evil motive.
any act pertaining to the Government, or to any person in
authority or public officer, without being lawfully entitled to do A preliminary investigation is required before the filing of
so, shall be punished with imprisonment of not less than two (2) a complaint or information for an offense where the penalty
years nor more than ten (10) years. Violation thereof is cognizable prescribed by law is at least four (4) years, two (2) months
by the Regional Trial Court but subject to preliminary and one (1) day without regard to the fine.15 Thus, a
investigation. preliminary investigation is not required nor was one
Respondent judge admitted that she overlooked the charge conducted for the charge of violation of Art. 177 of the
when she conducted the preliminary examination of the Revised Penal Code which is punishable by prision
complaints. Nonetheless, after reviewing the case, respondent correccional in its minimum and medium periods or from
Judge found no probable cause and ordered the dismissal of the six (6) months
16 and one (1) day to four (4) years and two (2)
case. Therefore, when respondent Judge motu proprio ordered the months.
dismissal of the case for lack of probable cause, she was acting in
 This being so, Sec. 9, Rule 112 of the Rules is applicable. summons instead of a warrant of arrest if he does not find
Said section provides: it necessary to place the accused under custody.
It is thus not obligatory but merely discretionary upon
Sec. 9. Cases not requiring a preliminary investigation nor covered the investigating judge to issue a warrant for the arrest of
by the Rule on Summary Procedure.— the accused even after having personally examined the
(b) If filed with the Municipal Trial Court.—If the complaint or complainant and his witnesses in the form of searching
information is filed with the Municipal Trial Court or Municipal questions for the determination of whether probable cause
Circuit Trial Court for an offense covered by this section, the exists. Whether it is necessary to place the accused in
procedure in section 3(a) of this Rule shall be observed. If within custody in order not to frustrate the ends of justice is left to
17
ten (10) days after the filing of the complaint or information, the the judge’s sound judgment. Moreover, the judge is not
judge finds no probable cause after personally evaluating the required to transmit the records of the case to the
evidence, or after personally examining in writing and under oath prosecutor for review.
the complainant and his witnesses in the form of searching In this case, respondent judge, following the foregoing
questions and answers, he shall dismiss the same. He may, procedure, found probable cause to hold the accused for
however, require the submission of additional evidence, within trial for the charge of Usurpation of Authority and
ten (10) days from notice, to determine forthwith set their arraignment and the pre-trial. There is
nothing irregular in the course of action taken by
_______________ respondent judge.
14 Id., at pp. 181-182.
15 Sec. 1, Rule 112, Rules. _______________
16 See Arts. 177 and 76, Revised Penal Code.
17 P/Supt. Severino Cruz and Francisco Monedero v. Judge Areola, 428

373 Phil. 373; 378 SCRA 316 (2002).

374
VOL. 452, FEBRUARY 28, 2005 373
Sesbreño vs. Aglugub 374 SUPREME COURT REPORTS ANNOTATED
Sesbreño vs. Aglugub
further the existence of probable cause. If the judge still finds no
probable cause despite the additional evidence, he shall, within
ten (10) days from its submission or expiration of said period, Neither is there merit in complainant’s contention that
dismiss the case. When he finds probable cause, he shall issue a respondent judge should have issued a warrant of arrest
warrant of arrest, or a commitment order if the accused had against the accused for their failure to appear during the
already been arrested, and hold him for trial. However, if the initial presentation of evidence for the prosecution for the
judge is satisfied that there is no necessity for placing the accused charge of Usurpation of Authority. The issuance of a
under custody, he may issue summons instead of a warrant of warrant of arrest for non-appearance of the accused during
arrest. trial is discretionary upon the judge. Indeed, there is
nothing in the Rules which requires a judge to issue a
Under the foregoing section, if a complaint or information warrant of arrest for non-appearance of the accused during
is filed directly with the Municipal Trial Court, the trial.
procedure laid down in Sec. 3(a), Rule 112 of the Rules Respondent judge concedes, however, that due to
shall be observed. If the judge finds no sufficient ground to oversight, she failed to rule on the charge of violation of
hold the respondent for trial, he shall dismiss the R.A. 10 in her Consolidated Resolution dated May 6, 2003.
complaint or information. Otherwise, he shall issue a Nonetheless, she asserts in her Comment
18 With Motion To
warrant of arrest, or a commitment order if the accused Dismiss Administrative Complaint dated May 7, 2004 that
had already been arrested, and hold the latter for trial. she conducted a preliminary investigation for the charge of
However, the judge is given the discretion to merely issue violation of R.A. 10 and dismissed the charge after taking
into consideration the affidavits and evidence presented. Moreover, “[R]esolutions in Ombudsman cases against
Complainant does not dispute the fact that indeed a 19 public officers and employees prepared by a deputized
preliminary investigation was conducted for this charge. assistant prosecutor shall be submitted to the Provincial or
Thus, when respondent judge dismissed the complaint for City Prosecutor concerned who shall, in turn, forward the
violation of R.A. 10, she merely did so to correct an same to the Deputy Ombudsman of the area with his
oversight. recommendation for the approval or disapproval thereof.
Furthermore, as the Order dated February 12, 2004 The Deputy Ombudsman shall take appropriate final
confirms, it was the dismissal of the charge for violation of action thereon, including the approval of its filing in the
R.A. 10 that was elevated to the PPO for review. It was proper regular court or the dismissal of the complaint, if
imprudent, however, for respondent judge to transmit the the crime charged is punishable by prision correccional or
entire records of the case to the PPO knowing that the lower, or fine of not more than P6,000.00 or both.
charge for Usurpation of Authority was included in the Resolutions involving offenses falling within the
records of the case. Respondent judge should have ensured jurisdiction of the Sandiganbayan shall be forwarded by
that at least one com- the Deputy Ombudsman with his recommendation thereon
to the Office of the Ombudsman.”
_______________
_______________
18 Id., at pp. 127-131.
19 Complainant avers: 20 November 12, 1990.
21 An Ombudsman Case is defined as a complaint filed in or taken
“Simply stated: (1) Despite the fact that violation of Art. 177, Rev. Penal Code is
cognizance of by the Office of the Ombudsman charging any public officer
NOT to be subjected to preliminary investigation, respondent subjected it to
or employee including those in government owned or controlled
preliminary investigation, together with the complaint for violation of Section 1,
corporations, with an act or omission alleged to be illegal, unjust,
Republic Act No. 10 . . .”
improper or inefficient.
Id., at p. 166.
376
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376 SUPREME COURT REPORTS ANNOTATED

VOL. 452, FEBRUARY 28, 2005 375
Sesbreño vs. Aglugub
Sesbreño vs. Aglugub

Thus, respondent judge did not err and was, in fact, merely
plete set of the records remained in her sala so that the
acting in accordance with law when she forwarded the case
prosecution for Usurpation of Authority would not be held
for violation of R.A. 10 to the PPO. The fact that the PPO
up. Injudicious though her actuation was, we do not agree
remanded the case to the court for further proceedings
with complainant that respondent judge was motivated by
instead of forwarding the same to the Deputy Ombudsman
an evil intent to delay the case.
as required by Administrative Order No. 8 is quite another
This brings us to the issue of whether respondent should
matter. In any event, respondent judge should have taken
have transmitted her Order dated February 12, 2004
the necessary steps to remedy the lapse in order to
dismissing the charge of violation of R.A. 10 to the Office of
preclude delay in the disposition of the case.
the Ombudsman instead of the PPO. Complainant asserts
In sum, for liability to attach for ignorance of the law,
that since the charge of violation of R.A. 10 is cognizable by
the assailed order, decision or actuation of the judge in the
the Sandiganbayan, the Office of the Ombudsman has the
performance of official duties must not only be found to be
primary jurisdiction to review the resolution of dismissal. 20
erroneous but, most importantly, it must be established
This issue is answered by Administrative Order No. 8
that he was moved by bad faith, dishonesty or some other
entitled Clarifying and Modifying Certain Rules of
like motive. Respondent judge’s actuations are hardly
Procedure of the Ombudsman, which provides “that all
indicative of bad faith or any motive to delay the case
prosecutors are now deputized Ombudsman prosecutors.”
21
 which22 characterizes the offense of gross ignorance of the
law.
IN VIEW OF THE FOREGOING, the instant complaint
is DISMISSED for lack of merit. Respondent Judge Gloria
B. Aglugub is ADMONISHED to be more circumspect in
the performance of her duties in the future.
SO ORDERED.

Puno (Chairman), Austria-Martinez, Callejo, Sr.

and Chico-Nazario, JJ., concur.

Complaint dismissed, Judge Gloria B. Aglugub

admonished to be more circumspect in the performance of
her duties.

Note.—No preliminary investigation is required for

criminal cases cognizable by Municipal Trial Courts but
only required for those cognizable by the Regional Trial
Court. (Villanueva vs. Almazan, 328 SCRA 230 [2000])

——o0o——

_______________

22 Pesayco v. Layague, A.M. No. RTJ-04-1889, December 22, 2004, 447

SCRA 450.

377

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