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Under our law the definition1 of an arrest is the taking of a person into custody in order that he may be bound to answer for the commission of an offense. It is made by an actual restrain of a person to be arrested or by his submission to the custody of the person making the arrest. This is an intrusion of our freedom hence a person cannot be just arrested anytime there should be lawful causes such as but not exclusively is when a warrant of arrest is issued against a person. All persons are protected against unreasonable arrest and his is manifested in the Constitution, According to Sec. 2 of Article III of the Constitution of the Philippines Art. III, Sec. 2. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. (Emphasis supplied) The words “determined personally” have been the biggest issue for several cases decided by the Supreme Court and the Court has been consistent with the interpretation of this provision. It was first interpreted in the case of Soliven v Makasiar2 in which the petitioner calls for the interpretation of the said provision of the Constitution the court held that the interpretation of the said provision is that “What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause. In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest, the judge is not required to personally examine the complainant and his witnesses. Following established doctrine and procedure, he shall: (1) personally evaluate the report and the supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or
Sec. 1 Rule 113 Rules of Court
G.R. No. 82585, November 14, 1988
The constitutional requirement has not been satisfied. can a judge issue a warrant of arrest by relying on the resolution of the prosecutor that a probable exist? The Supreme Court disagreed as manifested in the case of Lim v Felix3 in which the Petitioners Vicente Lim. after all. and Susana Lim filed with the respondent court several motions and manifestations.” Now. We cannot determine beforehand how cursory or exhaustive the Judge's examination should be. . February 19. he may disregard the fiscal's report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause. 1991. Nos. the personal determination is vested in the Judge by the Constitution.(2) if on the basis thereof he finds no probable cause. He 3 G. pursuant to the mandatory mandate of the constitution that no warrant shall issue unless the issuing magistrate shall have himself been personally convinced of such probable cause. the Judge must go beyond the Prosecutor's certification and investigation report whenever necessary. To be sure. 94054-57. The Judge commits a grave abuse of discretion. Sr. among others was an order be issued requiring the transmittal of the initial records of the preliminary inquiry or investigation conducted by the Municipal Judge Barsaga of Masbate for the best enlightenment of this Honorable Court in its personal determination of the existence of a probable cause or prima facie evidence as well as its determination of the existence of guilt.” And that “The extent of the Judge's personal examination of the report and its annexes depends on the circumstances of each case. otherwise judges would be unduly laden with the preliminary examination and investigation of criminal complaints instead of concentrating on hearing and deciding cases filed before their courts. Respondent court issued an order denying for lack of merit the motions and manifestations and issued warrants of arrest against the accused including the petitioners herein. The determination is made by the Provincial Prosecutor.R. Sound policy dictates this procedure. The Court held that “If a Judge relies solely on the certification of the Prosecutor as in this case where all the records of the investigation are in Masbate. It can be as brief or as detailed as the circumstances of each case require. he or she has not personally determined probable cause. The Judge has to exercise sound discretion for.
in determining the existence or non-existence of probable cause for the arrest of the accused. De Leon. 150185. as the Court held in Webb v. alleging that the only documents appended to the Information submitted by the investigating prosecutor were respondent affidavit-complaint for estafa and the resolution of the investigating prosecutor. Rule 112 of the Rules of Court 4 G. 2nd Assistant City Prosecutor came out with a resolution. the judge just personally reviews the initial determination of the investigating prosecutor finding a probable cause to see if it is supported by substantial evidence.should call for the complainant and witnesses themselves to answer the court's probing questions when the circumstances of the case so require. the affidavits of the witnesses of the complainant. After the requisite preliminary investigation. The petitioner filed a verified motion for judicial determination of probable cause and to defer proceedings/arraignment. submitted to the court by the investigating prosecutor upon the filing of the Information. 2004. . However. Gutierrez4 in which during the preliminary investigation. the judge should not rely solely on the said report. The trial court then issued a warrant of arrest with a recommended bond of P40. the respondent’s counteraffidavit and the other evidence adduced by the parties are not attached thereto. finding probable cause for estafa against the petitioner which was subsequently approved by the city prosecutor. No.” After the personal determination of probable cause of the judge the following are the next step as manifested in the Sec 6. After all. It was held that “In determining the existence or non-existence of probable cause for the arrest of the accused. the complainant submitted the affidavit of her witnesses and other documentary evidence. the RTC judge may rely on the findings and conclusions in the resolution of the investigating prosecutor finding probable cause for the filing of the Information.000. as well as the transcript of stenographic notes taken during the preliminary investigation.” This was reiterated in a relatively recent case of Okabe v. the counter-affidavit of the accused and his witnesses. The judge should consider not only the report of the investigating prosecutor but also the affidavit/affidavits and the documentary evidence of the parties.R. if any. May 27.
and the corresponding information is filed. or a commitment order if the accused has already been arrested pursuant to a warrant issued by the judge who conducted the preliminary investigation or when the complaint or information was filed pursuant to section 7 of this Rule. the judge may order the prosecutor to present additional evidence within five (5) days from notice and the issue must be resolved by the court within thirty (30) days from the filing of the complaint of information. Municipal Trial Court in Cities. he shall issue a warrant of arrest. If the findings and recommendations are affirmed by the provincial or city prosecutor. — Within ten (10) days from the filing of the complaint or information.“When warrant of arrest may issue. the procedure for the issuance of a warrant or arrest by the judge shall be governed by paragraph (a) of this section. without waiting for the conclusion of the investigation. (b) By the Municipal Trial Court. — (a) By the Regional Trial Court. or by the Ombudsman or his deputy. the judge may issue a warrant of arrest if he finds after an examination in writing and under oath of the complainant and his witnesses in the form of searching question and answers. he shall follow the procedure provided in section 3 of this Rule. However. — When required pursuant to the second paragraph of section 1 of this Rule. If he finds probable cause. the judge shall personally evaluate the resolution of the prosecutor and its supporting evidence. Municipal Trial Court. In case of doubt on the existence of probable cause. or Municipal Circuit Trial Court may be conducted by either the judge or the prosecutor. he shall issue a warrant of arrest. the preliminary investigation of cases falling under the original jurisdiction of the Metropolitan Trial Court. The Supreme Court based on the several cases cited has been consistent with its decisions that the judge should personally determine the report of the prosecutor and the supporting documents before he should issue a warrant of arrest and if . When conducted by the prosecutor. that a probable cause exists and that there is a necessity of placing the respondent under immediate custody in order not to frustrate the ends of justice. When the investigation is conducted by the judge himself.” To conclude the issuance of a warrant of arrest must be based on the determination of the judge based on the resolution of the prosecutor and supporting documents that a probable case exists and it only when he is not satisfied with the resolution and supporting documents presented by the prosecutor he may call the witness to personally determine if a probable cause exists. He may immediately dismiss the case if the evidence on record clearly fails to establish probable cause.
the judge should not personally determine the existence of probable cause it would constitute to a violation of the right of the accused and frustrate the ends of justice. .
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