G.R. No. L-78606 September 26, 1988
GELACIO V. SAMULDE, in his official capacity as Municipal Judge, petitioner, vs. RAMON M. SALVANI, Jr., in his official capacity as Provincial fiscal of Antique, substituted by LEOPOLDO O. VILLAVERT, respondent.

FACTS

Municipal Judge Gelacio Samulde conducted a preliminary investigation for robbery against Pelayo Arangale. After reviewing the affidavits and counter-affidavits, Judge Samulde found prima facie evidence and transmitted the case records to Provincial Fiscal Ramon Salvani. The fiscal returned the records, deeming the transmittal premature because Judge Samulde failed to include a warrant of arrest as allegedly mandated by Section 5, Rule 112 of the 1985 Rules on Criminal Procedure. Judge Samulde refused to issue a warrant, implying that while probable cause existed, he did not believe immediate custody of the accused was necessary to prevent frustration of justice.
Provincial Fiscal Salvani filed a special civil action for mandamus in the Regional Trial Court (RTC) to compel Judge Samulde to issue the arrest warrant. During the pendency, Fiscal Salvani was substituted by Fiscal Leopoldo Villavert. The RTC dismissed the mandamus petition, agreeing that the fiscal had no clear legal right to compel the act. However, paradoxically, the RTC still ordered Judge Samulde to issue the warrant based on his own prior finding of probable cause and advised him to adhere to this procedure in the future. Judge Samulde appealed to the Supreme Court.

ISSUE

Whether a judge, after finding probable cause in a preliminary investigation, is mandatorily required to issue a warrant of arrest against the accused.

RULING

No. The Supreme Court set aside the RTC decision, ruling that the issuance of a warrant of arrest by an investigating judge is discretionary, not mandatory, under the 1985 Rules. The Court traced the historical development of preliminary investigation rules, noting a significant change introduced in the 1985 Rules on Criminal Procedure. Under Section 6 of Rule 112, three conditions must concur for issuance: (1) the judge must have examined the complainant and witnesses through searching questions and answers; (2) the judge must be satisfied that probable cause exists; and (3) the judge must find a necessity to place the respondent under immediate custody to avoid frustrating the ends of justice.
The determination of both the existence of probable cause and the necessity for immediate custody is left to the sound judgment or discretion of the investigating judge. In this case, Judge Samulde, dealing with a robbery charge stemming from a boundary dispute, exercised his discretion by finding no danger of the accused absconding before the filing of an information. The provincial fiscal’s interpretation of Section 5, Rule 112—that transmittal of records inherently requires a warrant—is incorrect. The provision merely states that if a warrant was issued, it should be transmitted; it does not compel its issuance. A writ of mandamus cannot compel a discretionary act. The fiscal’s proper remedy, if believing arrest is necessary, is to immediately file the information in court so that the trial court may then issue a warrant.