Respondent is judge of the 8th Municipal Circuit Trial Court of Alcala-Bautista, Pangasinan. He is charged with ignorance of the law, grave abuse of authority, and gross partiality in connection with the preliminary investigation of Criminal Case No. 2346 for frustrated murder which the herein complainant, Roberto Espiritu, had filed against Weny Dumlao.

The facts are as follows:

In his affidavit^[1] in Criminal Case No. 2346, Roberto Espiritu, as complainant, alleged that at around 7:30 in the evening of July 16, 1994, while he was with a group which included Eulogio Pabunan, Arnel Guerra, Januario Peregrino, and Marcelino Bautista, Weny Dumlao approached him and fired at him three times, as a result of which complainant was wounded; that complainant was able to run away; and that Dumlao wanted to kill complainant because the latter had filed a case against Dumlao's brother, Victor, for the murder of complainant's son Rolly. On the basis of this affidavit and those of Arnel Guerra^[2] and Eulogio Pabunan,^[3] SPO II Eduardo R. Yadao filed a criminal complaint for frustrated murder on August 10, 1994^[4] in respondent's court.

After conducting a preliminary examination, respondent judge ordered on August 18, 1994 the arrest of Dumlao and fixed the amount of bail for his provisional liberty at P20,000.00.^[5] However, in an order dated September 7, 1994, he reduced the amount of the bail to P10,000.00, stating that Dumlao's father had asked for the reduction. On September 12, 1994, he ordered "any peace officer under whose custody [Dumlao] may be found" to release the latter in view of the fact that Dumlao had posted bail for P10,000.00.^[6] Then on October 12, 1994 he dismissed the complaint, citing, among other reasons, the fact that Dumlao had filed a case against Roberto Espiritu and others as a result of the same incident complained of in Criminal Case No. 2346.

It appears that Dumlao had filed on July 27, 1994 a countercharge against complainant and others with the Office of the Provincial Prosecutor in Villasis, Pangasinan for attempted murder and illegal possession of firearm. The case was docketed as I.S. No. V-94-30. Dumlao claimed that as he approached Espiritu's group, Arnel Guerra shot him, although Guerra missed him; that as he ran towards his house, other members of the group also fired at him; and that Espiritu's group challenged him and his father to come out and fight.

Dumlao's complaint (I.S. No. V-94-30) was dismissed on August 15, 1994 for insufficiency of evidence.^[7] After a reinvestigation of the two cases, however, Assistant City Prosecutor Paz de G. Peralta directed the filing of an information for attempted murder against complainant Roberto Espiritu, Arnel Guerra, Andres Espiritu, Marlino Bautista, Januario Peregrino, Abrillo Peregrino, Eulogio Pabunan, Dario Pabunan, and Landio Pabunan even as she affirmed the dismissal of Criminal Case No. 2346 against Dumlao.^[8]

Espiritu sought a review in the Department of Justice, but his petition was denied^[9] for having been filed late and for his failure to attach the affidavits submitted during the preliminary investigation.

Espiritu filed the complaint in this case, alleging irregularities committed by respondent judge in the conduct of the preliminary investigation of his complaint against Dumlao.^[10]

Respondent judge filed a comment,^[11] denying the charges. Complainant, on the other hand, filed a reply. Among other things, complainant claimed that this was not the first time that respondent judge had shown ignorance of the rules on criminal procedure, because on September 29, 1994, in People of the Philippines v. Cesario Sanchez, Criminal Case No. V-0092, respondent judge had been reprimanded by the Regional Trial Court of Villasis, Pangasinan (Branch 50) for approving the bail bond of the accused when the latter had not yet been arrested.

On June 26, 1995, the Court referred the case to Judge Pedro C. Cacho of the Regional Trial Court, Branch 52, at Tayug, Pangasinan for investigation, report, and recommendation. On October 6, 1995, Judge Cacho submitted his report, recommending that respondent judge be fined in the amount of P3,000.00 and reprimanded for "neglect of duty, partiality, and/or inefficiency tantamount to grave ignorance of the law."

Except as to the amount of the fine recommended, the Court concurs in the report of the investigating judge.

The charges against respondent judge relate to basically two acts committed by him: (1) granting bail to Weny Dumlao in the reduced amount of P10,000.00 and (2) dismissing the criminal complaint against Dumlao.

I. With respect to the granting of bail to Weny Dumlao and the reduction of its amount to P10,000.00, complainant alleges:

2. The municipal courts are now courts of records. Per order dated September 7, 1994. . . . the Honorable Judge reduced the amount of bail His Honor set in a previous order (Page 12, Ibid.), from P20,000.00 to P10,000.00 acting supposedly upon the request of the father of the accused. However, there is no such request for reduction of bail on file with the records of the case;

3. At the time the Honorable Judge acted on the "request" for reduction of bail, the accused was not under detention as he was not arrested nor had he voluntarily surrendered as borne by the records. Accordingly, the Court has not yet acquired jurisdiction over the person of the accused, so the Honorable Judge cannot act on such "request" for reduction of bail even if interceded by the father of the accused;

4. The amount at which the bail was reduced: P10,000.00 is not commensurate with the gravity of the crime charged, an evident manifestation of the Judge's injudiciousness in the exercise of his authority and discretion. The bail bond guide of 1981 provides for the amount P12,500.00;

Simply stated, the complaint is that respondent judge is guilty of ignorance of the law, bias, and partiality for Dumlao as shown by the following: (a) respondent judge granted bail and later reduced its amount when the fact was that, at that time, Dumlao was not in the custody of the court; (b) there was no written motion presented for the reduction of bail, which is a necessity since MCTCs are courts of record; and (c) pursuant to the 1981 Bail Bond Guide the bail for frustrated murder should be P12,500.00.

A. It is indeed true that, in general, bail presupposes that the applicant is under arrest, detained, or otherwise deprived of his liberty.^[12] In this case, it appears that on July 16, 1994, shortly after the incident, Weny Dumlao surrendered to the police, but the next day (July 17, 1994) he was released to the custody of Assistant Provincial Prosecutor Emiliano Matro.^[13]

Prosecutor Matro testified that upon DECS Supervisor Nuelito Dumlao's request, he agreed to take custody of Dumlao for which reason Weny Dumlao was released by the police.^[14] According to Matro, this was not the first time that he took custody of one who was under investigation.^[15]

Apparently, therefore, when Dumlao applied for bail on September 7, 1994 to respondent judge, Dumlao was not in custody. Nor was his release to the custody of Assistant City Prosecutor Matro in accordance with law. Under Rule 114, §15 of the Rules of Court, the release on recognizance of any person under detention may be ordered only by a court and only in the following cases: (a) when the offense charged is for violation of an ordinance, a light felony, or a criminal offense, the imposable penalty for which does not exceed 6 months imprisonment and/or P2,000 fine, under the circumstances provided in R.A. No. 6036; (b) where a person has been in custody for a period equal to or more than the minimum of the imposable principal penalty, without application of the Indeterminate Sentence Law or any modifying circumstance, in which case the court, in its discretion, may allow his release on his own recognizance; (c) where the accused has applied for probation, pending resolution of the case but no bail was filed or the accused is incapable of filing one; and (d) in case of a youthful offender held for physical and mental examination, trial, or appeal, if he is unable to furnish bail and under the circumstances envisaged in P.D. No. 603, as amended (Art. 191).^[16]

But although then not in legal custody, Dumlao subsequently submitted himself to the jurisdiction of the court when on September 7, 1994 he personally asked respondent judge to admit him to bail and reduce its amount. In Paderanga v. Court of Appeals,^[17] Miguel Paderanga was one of the accused in a case for multiple murder. Before the arrest warrant could be served on him, he filed through counsel a motion for admission to bail which the trial court set for hearing on November 5, 1992 with notice to both public and private prosecutors. As Paderanga was then confined at a hospital, his counsel manifested that they were submitting custody over Paderanga's person to the chapter president of the Integrated Bar of the Philippines and asked that, for purposes of the hearing on his bail application, he be considered as being in the custody of the law. On November 5, 1992, the trial court admitted Paderanga to bail in the amount of P200,000.00. The next day, Paderanga in spite of his weak condition, managed to personally appear before the clerk of court of the trial court and posted bail. He was arraigned and thereafter he attended the hearings. We held that the accused was in the constructive custody of the law when he moved for admission to bail through his lawyers (1) by filing the application for bail with the trial court, (2) by furnishing true information of his actual whereabouts, and (3) by unequivocably recognizing the jurisdiction of said court.

Respondent judge thus correctly granted bail to Dumlao.

B. Respondent judge erred, however, in fixing the amount of bail at P20,000.00 and reducing it to P10,000.00^[18] and in doing so without a hearing.

Under the 1981 Bail Bond Guide (Ministry Circular No. 36, September 1, 1981), the amount of bail in cases of frustrated murder is P12,500.00.^[19] In its Circular No. 10 dated July 3, 1987, the Department of Justice noted that the amounts fixed in the Bail Bond Guide had become "unrealistic and impractical for the purpose of assuring the presence and/or appearance of persons facing charges in court" and accordingly directed that the amount of bail be computed at the rate of P10,000.00 per year of imprisonment based on the medium penalty imposable for the offense. Judged by this standard, the P10,000.00 bail fixed in this case was inadequate. The penalty for frustrated murder prior to R.A. No. 7659 is prision mayor in its maximum period (10 years and 1 day to 12 years) to reclusion temporal in its medium period (14 years, 8 months, and 1 day to 17 years and 4 months). So that, applying Art. 50, in relation to Art. 248 of the Revised Penal Code, the medium penalty would be reclusion temporal in its minimum period (12 years and 1 day to 14 years and 8 months). Under Circular No. 10, the amount of the bail should have been fixed between P120,000.00 and P140,000.00.

Either respondent judge was grossly ignorant of the law or he deliberately disregarded it to favor the accused. Considering that part of his duties as a judge is conducting preliminary investigations, it is his duty to keep abreast of the laws, rulings, and jurisprudence regarding this matter. It is apparent that he has not. In failing to do so he failed to live up to the injunction of the Code of Judicial Conduct to "maintain professional competence."^[20] The maxim ignorance of the law excuses no one has special application to judges.

Further demonstrating either deliberate disregard of the law or gross ignorance of the same, respondent judge granted bail to Weny Dumlao without notice to the prosecution, in violation of Rule 114, § 18. In Chin v. Gustilo,^[21] this Court ruled that notice of application for bail to the prosecution is required even though no charge has yet been filed in court and even though under the circumstances bail is a matter of right. The failure to observe the above requirement constitutes ignorance or incompetence which cannot be excused by any protestation of good faith.^[22]

In this case, the failure to give notice to the prosecution may be due to the fact that there was no written motion filed but only, as respondent judge himself admitted, an oral request by Dumlao and his father that the amount of the bail be reduced. What respondent judge should have done was to have Dumlao put his request in writing and then schedule the incident for hearing with notice to the prosecution. Instead, he readily granted the request, which indicates rather clearly respondent judge's partiality. This partiality was nowhere more evident than in the private conference which he had with the Dumlaos in his chambers without the presence of the opposing party, the complainant in this case. Time and again we have admonished judges not only to be impartial but also to appear to be so. For appearance is an essential manifestation of reality.^[23] Departing from this established norm, respondent judge signed his September 7, 1994 order reducing the amount of bail to P10,000.00 and then told Dumlao to inform the police about it so that he would be released.

II. With respect to the charge that respondent judge, with grave abuse of authority, dismissed the case filed by complainant against Weny Dumlao, it is alleged that:

1. The Honorable Judge of the MCTC subpoenaed Dr. Marcelo S. Patawaran, Jr. (Page 15, Records of the Case-Annex "A") and conducted examination upon the doctor without notice, nay presence, of the parties of the case. . . . It is significant to note that the "searching questions" propounded upon the doctor tended to diminish the significance and importance of the medical certificate (Page 5, Ibid.) which may have been achieved, but the whole of the proceedings unmasked the partiality of the Court towards the accused. Moreover, it is unbelievable that the Honorable Judge is not aware of the plenitude in our jurisprudence of proceedings undertaken by courts and tribunals without notice and presence of the parties that were declared null and void by the Supreme Court;

....

5. On September 12, 1994, the Honorable Judge issued a subpoena upon the accused, requiring the accused to submit his counter-affidavits of his witnesses and his other pieces of evidence, if any. Under the rule, and as contained in the subpoena, the accused was given ten (10) days to do so, and the period expired on September 22, 1994 as he received copies of the subpoena and the complaint with supporting affidavits on September 12, 1994 as shown by the records, Annex "A". Without prior motion for extension of period, the Honorable Judge allowed the filing by the accused of his counter-affidavit only on October 11, 1994, some 29 days late [actually only 19 days]. Moreover, the Court did not require the accused to furnish copy of his counter-affidavit to the complainant prior to submitting the same in Court, in violation of Section 2(c), Rule 112 of the Rules of Court;

6. In the resolution recommending the dismissal of this case . . . , the Honorable Judge cited as one reason the existence of a counter-charge pending preliminary investigation before the Office of the Provincial Prosecutor, Villasis, Pangasinan concerning the same incident which is the subject matter of this case, referring to I.S. No. V-94-30, filed by accused as complainant therein. That case (I.S. No. V-94-30) was dismissed per Resolution dated August 15, 1994, copy of which is hereto attached and marked as Annex "B". After the dismissal of said case, the accused, as complainant, endeavored to revive the case, but which undertaking took him a long time, hence, the delay of accused's counter-affidavit in Criminal Case No. 2346. . . . The fact alone that accused was allowed to delay the filing of his counter-affidavit to enable him to revive his counter-charge is an evident gross partiality of the Honorable Judge; and

7. The Honorable Judge, without any basis, directly or impliedly, made a finding that the wound sustained by herein complainant was self-inflicted, totally disregarding the evidence on record, as declared positively by eye witnesses. Such actuation bespeaks of the grave abuse of discretion by the Honorable Judge.

A. With regard to the examination of Dr. Melecio S. Patawaran, Jr. on September 1, 1994 respondent judge admits that he did not give notice to the parties of the same but claims that it was because he was only at that time in the first stage of preliminary investigation.^[24] This is inconsistent with his later testimony in which he admitted that when he ordered a warrant of arrest to be issued against Dumlao on August 18, 1994, the first stage of preliminary examination had already been terminated.^[25]

Respondent contends that Rule 112, §3(e) did not apply to the examination of Dr. Patawaran on September 1, 1994 because at that time Dumlao had not yet submitted his counteraffidavit.^[26] This provision states:

If the investigating officer believes that there are matters to be clarified, he may set a hearing to propound clarificatory questions to the parties or their witnesses, during which the parties shall be afforded an opportunity to be present but without the right to examine or cross-examine. If the parties so desire, they may submit questions to the investigating officer which the latter may propound to the parties or witnesses concerned.

If, as respondent judge claims, the holding of a hearing for the purpose of asking "clarificatory" questions presupposes the filing by the parties of their affidavits but at the time he examined Dr. Patawaran he had not yet received the counteraffidavit of Weny Dumlao, then what he should have done was to wait until the counteraffidavit was filed and in the meantime not examine Dr. Patawaran. What is particularly objectionable was the examination of Dr. Patawaran as a witness without the presence of the parties.

B. Nor is there any excuse for respondent's consideration of Dumlao's counteraffidavit despite the fact that it had been filed several days late. Dumlao received the order^[27] requiring him to file his counteraffidavit and that of his witnesses on September 12, 1994. As under Rule 112, §3(b) Dumlao had only 10 days from receipt of the subpoena within which to comply, his counteraffidavit should have been filed not later than September 22, 1994. However, it took him 19 more days after the reglementary period had expired before he finally filed his counteraffidavit on October 11, 1994. Dumlao did not ask for an extension, yet respondent judge allowed the counteraffidavit.

Respondent claims that^[28]

The acceptance of the Counter-Affidavit is not my duty. It is my Clerk of Court who received the Counter-Affidavit and when I look into the records, the Counter-Affidavit was already there in the record and I was also preparing a Resolution to that case, so I have to take cognizance of the Counter-Affidavit. After all, there was no one month yet that lapsed so I have to take cognizance of the Counter Affidavit. And immediately after that, I issued a Resolution.

The contention has no merit. The duty of the clerk of court was to receive the counteraffidavit.^[29] It was respondent judge's responsibility to see to it that what was received in his court had been filed on time. Nor is it true that when respondent judge saw the counteraffidavit, it had already been attached to the records. Clerk of Court Adoracion Marcos testified that upon receipt of the counteraffidavit, she showed it to respondent judge.^[30] Respondent judge therefore knew when the counteraffidavit was filed. At the very least, he should have checked whether it was filed on time. That respondent judge allowed the late filing of the counteraffidavit can only be attributed to his desire to enable Dumlao to revive his case against complainant in the Prosecutor's Office because it was the linchpin for his defense in Criminal Case No. 2346.

C. What has been just said applies as well to respondent judge's claim that responsibility for furnishing complainant a copy of the counteraffidavit was not the court's responsibility but Dumlao's. The service of the counteraffidavit on complainant should indeed be made by Dumlao and not by the court,^[31] but respondent judge should have seen to it that this duty had been complied with upon the filing of the counteraffidavit. The "serve and file" rule is so basic for respondent judge not to know it. It was not fair for respondent judge to consider a pleading which the other party knew nothing about because it had not been served on him.

D. In dismissing Criminal Case No. 2346, respondent judge said:^[32]

For the weighing and evaluation of evidence of both parties, the Court took the pain of issuing a subpoena to Dr. Marcelo [actually Melecio] S. Patawaran, Jr., a resident physician of Don Amadeo Perez, Sr. Memorial Hospital at Urdaneta, Pangasinan, who testified that the bullet did not have any exit and there was no bullet left in the body and it becomes only an injury. That the patient was advised to be referred to the Pangasinan Provincial Hospital for x-ray purposes, instead he went to the Sacred Heart Hospital at Urdaneta, Pangasinan and went home after x-ray. That no x-ray result was submitted to Don Amadeo J. Perez, Sr. Hospital or to the Court to prove that it was really a bullet wound. That he did not notice any powder burns on the injury.

. . . [I]n the opinion of the Court, the injury is self inflicted, this case should be dismissed. . . .

Thus, based on alleged testimony of Dr. Patawaran, respondent judge cast doubt on complainant's claim that his wound was a gunshot wound and held that the wound had been inflicted by complainant on himself.

This is contrary to Dr. Patawaran's testimony in the preliminary investigation conducted by respondent judge. Dr. Patawaran said in his testimony:^[33]

Q: Doctor, here in this medical certificate in the findings or diagnosis it says 'GSW' or gunshot wound, was it really in your opinion a gunshot wound?
A: Yes, Judge.

Q: Why do you say it is a gunshot wound?
A: Because when I saw the wound it manifested the characteristic of a gunshot wound like the inversion of the skin edges.

Q: You said inversion of the skin edges Doctor, did you find any bullet in the injury?
A: That is why I referred the patient to the Provincial Hospital for x-ray because when you see only the entrance and no exit, it's a must so as to locate the bullet as it does not have any exit.

Q: Do you know if the bullet is inside the body of the person?
A: That will be determined by the x-ray, sir.

....

Q: In this medical certificate Doctor below the findings and diagnosis are the letters 'GSW' is in writing and not typewritten as the injuries and entries indicated, will you please explain?
A: I initialed it to make it authenticated, a typographical error, sir.

Q: From the injury Doctor you can not determine also how far was the assailant?
A: Probably around more or less 3 meters, sir.

Q: Did you talk to the patient Roberto Espiritu when he was taken to your hospital Doctor?
A: Yes, sir.

Q: Did Roberto Espiritu ever mention to you the name of the assailant and that he recognized him?
A: I just asked what happened and he said "pinaltogdac" I was shot, and I did not ask the name of the assailant any more.

It would seem respondent judge simply relied on the counteraffidavit of Dumlao for his resolution, particularly the following portion of Dumlao's counteraffidavit:^[34]

The medical certificate of private complainant Roberto Espiritu doesn't categorically state that the wound is a gun shot wound and if the letters GSW in handwritten form in a ballpen appear therein is an information coming from and supplied by said complainant, other entries are typewritten, it is not a gun shot wound as ascertained and examined by the attending doctor; the complainant was never confined in the hospital; there is no exit of the bullet but no finding whether said bullet is embedded and found inside the body of the alleged victim-complainant; if the private-complainant ever sustained any wound, it is one that is self-inflicted in a vain effort to substantiate a false charge of a serious offense of frustrated murder making it appear as a consequence of a gunshot; the medical certificate doesn't state the healing period of the self-inflicted wound; medical certificate is attached and marked as Annex "E" to form part hereof.

The foregoing acts of respondent judge clearly demonstrate partiality.

WHEREFORE, the Court finds Judge Eduardo U. Jovellanos GUILTY of gross misconduct and imposes on him a FINE of P20,000.00, with a WARNING that repetition of the same or similar offenses will be dealt with more severely.
SO ORDERED.

Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Francisco, Hermosisima, Jr., Panganiban, and Torres, Jr., JJ., concur.

---

^[1] Sworn Statement of Roberto Espiritu dated July 18, 1994, Rollo, p. 6.

^[2] Id., p. 7.

^[3] Id., p. 8.

^[4] Id., p. 5,

^[5] Exh. U, id., p. 16.

^[6] Exh. I.

^[7] Exh. R.

^[8] Joint Resolution dated November 11, 1994, Exh. 14, Rollo, pp. 69-73.

^[9] Per Letter dated February 7, 1995, Exh. 23.

^[10] Rollo, pp. 1-3.

^[11] Id., pp. 65-68.

^[12] Feliciano v. Pasicolan, 2 SCRA 888 (1961).

^[13] The police blotter shows the following: On said time and date [July 17, 1994, 5:52 p.m.] Hon. Emiliano Matro, Asst. Prov'l Fiscal, Pangasinan, appeared to this station and take into his custody the living person of one Weny Dumlao y Miguel, suspect of alfa shooting incident that transpired on or about 161930H July '94, in Brgy. San Nicolas this matter wherein one Roberto Espiritu y Empabido is the victim. Said person was apprehended by elements this station after the commission of the crime and placed under custodial interrogation. For record purposes. CONFORME TO HEREIN RECORDED EVENT.

(Sgd) HON. EMILIANO MATRO 7/17/94

(Custodian)

^[14] TSN, pp. 3, 6, 7, and 10, Sept. 12, 1995; Folder of TSNs, pp. 158, 161, 162, and 165.

^[15] Id., p. 10; id., p. 165.

^[16] 2 Florenz D. Regalado, Remedial Law Compendium 281-282 (1989).

^[17] 247 SCRA 741 (1995).

^[18] Order of September 7, 1994, Exh. G; Rollo, p. 24.

^[19] 1981 Bail Bond Guide, p. 29.

^[20] Code of Judicial Conduct, Canon 3; Aurillo, Jr. v. Francisco, 235 SCRA 283 (1994).

^[21] 247 SCRA 175 (1995).

^[22] Depamaylo v. Brotarlo, A.M. No. MTJ-92-731, November 29, 1996; De Los Santos-Reyes v. Montesa, 247 SCRA 85 (1995).

^[23] Gallo v. Cordero, 245 SCRA 219 (1995).

^[24] TSN, p. 2, Sept. 14, 1995; Folder of TSNs, p. 185.

^[25] Id., p. 4; id., p. 187.

^[26] Id., 5; id., p. 188.

^[27] Exh. K, Rollo, p. 26.

^[28] TSN, p. 22, Sept. 12, 1995; Folder of TSNs, p. 177.

^[29] TSN, p. 24, Aug. 30, 1995; id., p. 52.

^[30] Id., p. 23; id., p. 81.

^[31] Rule 112, §3 provides:

(c) Such counter-affidavits and other supporting evidence submitted by the respondent shall also be sworn to and certified as prescribed in paragraph (a) hereof and copies thereof shall be furnished by him to the complainant.

^[32] Resolution dated October 12, 1994, Exh. M, p. 3, Rollo, p. 31.

^[33] Exh. F, Rollo, pp. 21-23.

^[34] Id., pp. 27-28.