The Department of Justice (DOJ) issued Circular No.

050 on 15 August 2012 guidelines for law

enforcers, prosecutors and public attorneys on the application of Art. 125 of the Revised Penal Code,
as amended, on the delay in the delivery of detained persons to judicial authorities.
Justice Secretary Leila M. De Lima said that the guidelines are in line with the Departments
commitment to advance the rule of law especially the constitutional guarantee against deprivation of
liberty without due process of law. The issuance reinforces the protection of arrested person by
emphasizing that authorities who detain a person arrested without warrant and without filing charges
in court after the lapse of 12, 18 and 36 hours depending on the gravity of crime committed are
criminally liable.
Moreover, investigators of the DILG-Philippine National Police (PNP), National Bureau of Investigation
(NBI), prosecutors of the National Prosecution Service (NPS) and public defenders of the Public
Attorneys Office (PAO), all agencies of the DOJ have through the years differing understanding and
application of Article 125 leading to confusion and inconsistencies.
Key provisions of the guidelines include:
1) counting of the prescribed 12-18-36 periods shall be done by the hour starting from the time of
detention. However, there are circumstances that may be considered in determining whether the
public officer can be held liable for violating the law such as: (a) observance of non-working holidays,
during which it becomes legally and physically impossible to properly file charges in court; (b)
extraneous factors like means of communication and transportation, the hour of the arrest or the time
of surrender of an accused. It must be noted, however, that the two exceptions should not be used as
grounds for abuse. As they can be availed of when circumstances warrant extraordinary measures,
however, in no case the exceptions absolved public officers from liability under Art. 125 if it can be
shown the delay is attended by malice, bad faith or gross negligence.
2) Upon an arrest, the person shall be brought to the nearest local law enforcement office. Without
delay, the on-duty inquest prosecutor shall conduct the inquest proceedings within the locality, even
during weekends.
Provincial Prosecutor Pepita Jane A. Petralba of Cebu who contributed a position paper on Article 125
welcomed the guidelines as a concrete step towards a predictable legal environment and for better
protection of human rights.
- See more at: http://www.doj.gov.ph/news.html?title=DOJ%20ISSUES%20GUIDELINES
%20ARRESTED%20PERSONS,%20RESOLVES%20INTER-AGENCY%20ISSUES
%20&newsid=126#sthash.YHdNqUYx.dpuf

http://www.doj.gov.ph/news.html?title=DOJ%20ISSUES%20GUIDELINES
%20ARRESTED%20PERSONS,%20RESOLVES%20INTER-AGENCY%20ISSUES
%20&newsid=126

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Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 134503

July 2, 1999

JASPER AGBAY, petitioner,

vs.
THE HONORABLE DEPUTY OMBUDSMAN FOR THE MILITARY, SPO4 NEMESIO
NATIVIDAD, JR. and SPO2 ELEAZAR M. SOLOMON, respondent.

GONZAGA-REYES, J.:

This petition for certiorari seeks to nullify the Resolution of the Deputy Ombudsman
for the Military dated 19 January 1998 1 which recommended the dismissal of the
criminal complaint filed by petitioner against herein private respondents for
violation of Article 125 of the Revised Penal Code for delay in the delivery of
detained persons, and the Order of April 13, 1998 2 which denied his motion for
reconsideration.

The pertinent facts leading to the filing of the petition at bar are as follows:

On September 7, 1997, petitioner, together with a certain Sherwin Jugalbot, was

arrested and detained at the Liloan Police Station, Metro Cebu for an alleged
violation of R.A. 7610, the "Special Protection of Children Against Child abuse,
Exploitation and Discrimination Act." 3 The following day, or on September 8, 1997,
a Complaint for violation of R.A. 7610 was filed against petitioner and Jugalbot
before the 7th Municipal Circuit Trial Court of Liloan, Metro Cebu by one Joan
Gicaraya for and in behalf of her daughter Gayle 4. The complaint, insofar as
pertinent, reads as follows:

That on the 7th day of September 1997 at Sitio Bonbon, Brgy. Catarman, Liloan,
Metro Cebu, Philippines and within the Preliminary Jurisdiction of this Honorable
Court, the above-named accused, did then and there, willfully, feloniously and
unlawfully, conspiring, confederating, helping with one another, while accused
JASPER AGBAY manipulating to finger the vagina of GAYLE FATIMA AMIGABLE
GICAYARA, his companion block the sight of the Private Complainant, Mrs. JOAN A.
GICAYARA, while on board a tricycle going their destinations. Upon initial
investigation of the Bgy, Captain of Bgy. Catarman, accused SHERWIN JUGALBOT
was released and accused JASPER AGBAY is presently detain Liloan Police Station
Jail. Medical Certificate issued from Don Vicente Sotto Memorial Medical Center,
Cebu City is hereto attached.

On September 10, 1997, counsel for petitioner wrote the Chief of Police of Liloan
demanding the immediate release of petitioner considering that the latter had
"failed to deliver the detained Jasper Agbay to the proper judicial authority within
thirty-six (36) hours from September 7, 1997." 5 Private respondents did not act on
this letter and continued to detain petitioner. 6

On September 12; 1997, the 7th Municipal Circuit Trial Court of Liloan, Metro Cebu
issued an order, denominated as "Detention During the Pendency of the Case",
committing petitioner to the jail warden of Cebu City. 7 Five (5) days later, or on
September 17, 1997, petitioner was ordered released by the said court after he had
posted bond. 8

On September 26, 1997, petitioner filed a complaint for delay in the delivery of
detained persons against herein private respondents SPO4 Nemesio Natividad, Jr.,
SPO2 Eleazar M. Salomon and other unidentified police officers stationed at the
Liloan Police Substation, before the Office of the Deputy Ombudsman for the
Visayas. 9

Regarding the complaint for violation of R.A. 7610, it is alleged by petitioner that on
November 10, 1997, the 7th MCTC of Liloan, Metro Cebu issued a resolution
containing the following dispositive portion:

WHEREFORE, finding probable cause for the crime in Violation of Republic Act 7610,
it is hereby recommended that an INFORMATION be filed against the two
aforenamed accused.

Forward the record of this case to the Provincial Fiscal's Office for appropriate
action. 10

By virtue of Memorandum Circular No. 14, Series of 1995, dated 10 October 1995 of
the Office of the Ombudsman, 11 the case for delay in delivery filed by petitioner
against herein private respondents before the Deputy Ombudsman for the Visayas
was transferred to the Deputy Ombudsman for the Military for its proper disposition.
Thus, it was this office which acted on the complaint, now denominated as OMB-VISCRIM-97-0786, and which issued the questioned Resolution dated January 19, 1998
recommending its dismissal against herein private respondents. Petitioner moved
for reconsideration of this Resolution but this motion was denied in an Order dated
April 13, 1998.

Hence, this petition for certiorari.

The grounds relied upon in the present petition 12 are as follows:

I.

THE PUBLIC RESPONDENT GRAVELY ABUSED ITS DISCRETION IN RELYING ON

MEMORANDUM CIRCULAR NO. 14, SERIES OF 1995, DATED 10 OCTOBER 1995, OF
THE OFFICE OF THE OMBUDSMAN IN HOLDING THAT IT HAS COMPETENCE TO ACT
ON THE ABOVE-ENTITLED CASE BEFORE IT, THE SAID CIRCULAR BEING
UNCONSTITUTIONAL AND ILLEGAL, HENCE, NULL AND VOID.

II.

THE PUBLIC RESPONDENT GRAVELY ABUSED ITS DISCRETION IN NOT HOLDING THAT
IT IS BEYOND ITS COMPENCE TO DETERMINE WHETHER OR NOT THE MUNICIPAL
CIRCUIT TRIAL COURT OF LILOAN-COMPOSTELA HAS IN FACT NO JURISDICTION TO
TRY THE CASE FILED AGAINST HEREIN PETITIONER.

III.

THE PUBLIC RESPONDENT GRAVELY ABUSED ITS DISCRETION IN NOT HOLDING THAT
THE MCTC, WHILE HAVING AUTHORITY TO CONDUCT A PRELIMINARY
INVESTIGATION, IS NOT THE "PROPER JUDICIAL AUTHORITY " CONTEMPLATED IN
ARTICLE 125 OF THE REVISED PENAL CODE AND, HENCE, THE FILING OF THE
COMPLAINT BEFORE IT FOR THE PURPOSE OF CONDUCTING A PRELIMINARY
INVESTIGATION DID NOT INTERRUPT THE PERIOD PRESCRIBED BY ART. 125.

IV.

THE PUBLIC RESPONDENT GRAVELY ABUSED ITS DISCRETION IN HOLIDING THAT THE
ISSUE OF THE VALIDITY OF THE ORDER OF DETENTION IS IRRELEVANT TO THE ISSUE
OF CRIMINAL LIABILITY OF PRIVATE RESPONDENTS FOR DELAY IN THE DELIVERY OF
DETAINED PERSONS.

V.

THE PUBLIC RESPONDENT GRAVELY ABUSED ITS DISCRETION IN HOLDING THAT THE
DUTY OF PRIVATE RESPONDENTS TO FILE THE NECESSARY COMPLAINT IN COURT
WAS FULFILLED WHEN THEY FILED A FORMAL COMPLAINT ON 8 SEPTEMBER 1997
WITH THE 7TH MCTC OF LILOAN-COMPOSTELA.

On the first issue, petitioner argues that due to the civilian character of the
Philippine National Police, the Office of the Deputy Ombudsman for the Military, by
virtue of the description of the Office, has no competence or jurisdiction to act on
his complaint against private respondents who are members of the PNP. Petitioner
also questions the constitutionality of Memorandum Circular No. 14 insofar as it
purports to vest the Office of the Deputy Ombudsman for Military Affairs with
jurisdiction to investigate all cases against personnel of the Philippine National
Police.1wphi1.nt

There is no dispute as to the civilian character of our police force. The 1987
Constitution, in Section 6, Article XVI, has mandated the establishment of "one
police force, which shall be national in scope and civilian character (emphasis
supplied)." Likewise, R.A. 6975 13 is categorical in describing the civilian character
of the police force. 14 The only question now is whether Memorandum Circular No.
14, in vesting the Office of the Deputy Ombudsman for the Military with jurisdiction
to investigate complaints against members of the PNP, violates the latter's civilian
character.

As opined by the Office of the Solicitor General in its Comment dated 7 December
1998 15, the issue as to whether the Deputy Ombudsman for the Military has the
authority to investigate civilian personnel of the government was resolved in the
affirmative in the case of Acop v. Office of the Ombudsman. 16 In that case, the
petitioners, who were members of the Philippine National Police questioned the
jurisdiction of the Deputy Ombudsman to investigate the alleged shootout of certain
suspected members of the "Kuratong Baleleng" robbery gang; this Court held that:

The deliberations on the Deputy for the military establishment do not yield
conclusive evidence that such deputy is prohibited from performing other functions
or duties affecting non-military personnel. On the contrary, a review of the relevant
Constitutional provisions reveal otherwise.

As previously established, the Ombudsman "may exercise such other powers or

perform such functions or duties" as Congress may prescribe through legisiation.
Therefore, nothing can prevent Congress from giving the Ombudsman supervision
and control over the Ombudsman's deputies, one being the deputy for the military
establishment. In this light, Section 11 of R.A. No. 6770 provides:

Sec. 11.
Structural Organization. The authority and responsibility for the
exercise of the mandate of the Office of the Ombudsman and for the discharge of its
powers and functions shall be vested in the Ombudsman, who shall have
supervision and control of the said Office.

While Section 31 thereof declares:

Sec. 31.
Designation of Investigators and Prosecutors. The Ombudsman may
utilize the personnel of his office and/or designate or deputize any fiscal, state
prosecutor to assist in the investigation and prosecution of certain cases. Those
designated or deputized to assist him herein shall be under his supervision and
control.

Accordingly, the Ombudsman may refer cases involving non-military personnel for
investigation by the Deputy for Military Affairs. In these cases at bench, therefore,
no irregularity attended the referral by the Acting Ombudsman of the Kurutong
Baleleng case to respondent Casaclang who, in turn, created a panel of
investigators. 17

The cited case is determinative of the issue. However, petitioner, in his Reply to
Comment dated February 1, 1999, argues that the ruling in the Acop case is not on
all fours with the case at bar 18. Petitioner states that the doctrine laid down in the
said case is simply that "the Ombudsman may refer cases involving non-military
personnel for investigation by the Deputy for Military Affairs. This doctrine,
petitioner argues, "applies only to isolated or individual cases involving non-military
personnel referred by the Ombudsman to the Deputy for Military Affairs" and does
not apply when, as in this case, there is a wholesale or indiscriminate referral of
such cases to the Deputy Ombudsman for Military Affairs in the form of an Office
Memorandum Circular.

Petitioner's arguments do not convince as there is no basis for the distinction.

There is no basis in the above-cited decision to limit the referral of cases involving
non-military personnel to the Deputy Ombudsman for Military Affairs to isolated or
individual cases. The Office of the Ombudsman, in issuing Memorandum Circular No.
15, is simply exercising the power vested in the Ombudsman "to utilize the

personnel of his office and/or designate or deputize any fiscal, state prosecutor or
the or lawyer in the government service to act as special investigator or prosecutor
to assist in the investigation and prosecution of certain cases." This Court, absent
any grave abuse of discretion, may not enterfere with the exercise by the
Ombudsman of his power of supervision and control over the said Office.

Petitioner further argues that Memorandum Circular No. 14 violates the clear intent
and policy of the Constitution and of R.A. 6975 to maintain the civilian character of
the police force and "would render nugatory and meaningless the distinction
between cases involving civilian and military personnel and the creation of separate
divisions of the Ombudsman." 19

Said contentions are misplaced.

The Deputy Ombudsman for the Military, despite his designation as such, is by no
means a member of the military establishment. The said Office was established "to
extend the Office of the Ombudsman to the military establishment just as it
champions the common people against bureaucratic indifference". The Office was
intended to help the "ordinary foot soldiers" to obtain redress for their grievances
against higher authorities and the drafters of the Constitution were aware that the
creation of the Office, which is seemingly independent of the President, to perform
functions which constitutionally should be performed by the President, might be in
derogation of the powers of the President as Commander-In-Chief of the Armed
Forces 20.

It must be borne in mind that the Office of the Ombudsman was envisioned by the
framers of the 1987 Constitution as the "eyes and ears of the people" 21 and "a
champion of the citizen. 22" Sec. 12, Art. XI of the 1987 Constitution describes the
Ombudsman and his deputies as "protectors of the people." Thus, first and
foremost, the Ombudsman and his deputies, including the Deputy Ombudsman for
the Military owe their allegiance to the people and ordinary citizens, it is clearly not
a part of the military. We fail to see how the assumption of jurisdiction by the said
office over the investigation of cases involving the PNP would detract from or violate
the civilian character of the police force when precisely the Office of the
Ombudsman is a civilian office.

The other issues raised by petitioner concerns the application of Art. 125 of the
Revised Penal Code which provides as follows:

Art. 125.
Delay in the delivery of detained persons to the proper judicial
authorities. The penalties provided in the next preceding article shall be imposed
upon the public officer or employee who shall detain any person for some legal
ground and shall fail to deliver such person for the proper judicial authorities within
the period of: twelve (12) hours, for crimes or offenses punishable by light penalties,
or their equivalent; eighteen (18) hours, for crimes or offenses punishable by
correctional penalties, or their equivalent; and thirty-six hours (36) hours, for crimes
or offenses punishable by afflictive or capital penalties, or their equivalent.

In every case, the person detained shall be informed of the cause of his detention
and shall be allowed, upon his request, to communicate and confer at any time with
his attorney or counsel.

In the case at bar, petitioner was arrested and detained at the Liloan Police Station
on 7 September 1997 for an alleged violation of R.A. 7610, specifically section 5 (b)
thereof 23. This crime carries a penalty of reclusion temporal in its medium period
to reclusion perpetua, an afflictive penalty. Under these circumstances, a criminal
complaint or information should be filed with the proper judicial authorities within
thirty six (36) hours of his arrest.

As borne by the records before us the mother of private complainant, Joan Gicaraya,
filed a complaint on 8 September 1997 against petitioner for violation of R.A. 7610
before the 7th Municipal Circuit Trial Court of Liloan, Metro Cebu.

Petitioner contends that the act of private complainant in filing the complaint before
the MCTC was for purposes of preliminary investigation as the MCTC has no
jurisdiction to try the offense. This act of private complainant petitioner argues, was
unnecessary, a surplusage which did not interrupt the period prescribed by Art. 125
24 considering that under the Rules it is the Regional Trial Court which has
jurisdiction to try the case against him. As such, upon the lapse of the thirty-six
hours given to the arresting officers to effect his delivery to the proper Regional Trial
Court, private respondents were already guilty of violating Art. 125. Thus, petitioner
argues, when the Judge-Designate of the 7th MCTC issued a Commitment Order on

September 12, 1997, he was acting contrary to law since by then there was no basis
for the continued detention of petitioner. 25

In addressing the issue, the Office of the Deputy Ombudsman for the Military in its
13 April 1998 Order, stated that the duty of filing the corresponding complaint in
court was "fulfille by respondent when the formal complaint was filed on September
8, 1997 with the 7th MCTC of Liloan-Compostela, barely 20 hours after the arrest of
herein complainant of September 7, 1997." 26 The Solicitor General, for his part,
argues that while a municipal court judge may conduct preliminary investigations as
an exception to his normal judicial duties, he still retains the authority to issue an
order of release or commitment. As such, upon the filing of the complaint with the
MCTC, there was already compliance with the very purpose and intent of Art. 125
27.

The core issue is whether the filing of the complaint with the Municipal Trial Court
constitutes to a "proper judicial authority" as contemplated by Art. 125 of the
Revised Penal Code.

Art. 125 of the Revised Penal Code is intended to prevent any abuse resulting from
confining a person without informing him of his offense and without permitting him
to go on bail 28. More specifically, it punishes public officials or employees who shall
detain any person for some legal ground and shall fail to deliver such person to the
proper judicial authorities within the periods prescribed by law. The continued
detention of the accused becomes illegal upon the expiration of the periods
provided for by Art. 125 without such detainee having been delivered to the
corresponding judicial authorities 29.

The words "judicial authority" as contemplated by Art. 125 mean "the courts of
justices or judges of said courts vested with judicial power to order the temporary
detention or confinement of a person charged with having committed a public
offense, that is, the Supreme Court and other such inferior courts as may be
established by law. 30"

Petitioner takes great pains in arguing that when a municipal trial court judge, as in
the instant case, conducts a preliminary investigation, he is not acting as a judge
but as a fiscal. In support, petitioner cites the cases of Sangguniang Bayan ng
Batac, Ilocos Norte vs. Albano, 260 SCRA 561, and Castillo vs. Villaluz, 171 SCRA 39,

where it was held that "when a preliminary investigation is conducted by a judge,

he performs a non-judicial function as an exception to his usual duties." Thus,
petitioner opines, the ruling in Sayo v. Chief of Police of Manila, 80 Phil. 862, that
the city fiscal is not the proper judicial authority referred to in Art. 125 is applicable.

Petitioner's reliance on the cited cases is misplaced. The cited cases of Sangguniang
Bayan and Castillo dealt with the issue of whether or not the findings of the
Municipal Court Judge in a preliminary investigation are subject to review by
provincial and city fiscals. There was no pronoucement in these cases as to whether
or not a municipal trial court, in the exercise of its power to conduct preliminary
investigations, is a proper judicial authority as contemplated by Art. 125.

Neither can petitioner rely on the doctrine enunciated in Sayo vs. Chief of Police,
supra, since the facts of this case are different. In Sayo, the complainant was filed
with the city fiscal of Manila who could not issue an order of release or commitment
while in the instant case, the complaint was filed with a judge who had the power to
issue such an order. Furthermore, in the Resolution denying the Motion for
Reconsideration of the Sayo case 31, this Court even made a pronouncement that
the delivery of a detained person "is a legal one and consists in making a charge or
filing a complaint against the prisoner with the proper justice of the peace or judge
of Court of First Instance in provinces, and in filing by the city fiscal of an
information with the corresponding city courts after an investigation if the evidence
against said person warrants."

The power to order the release or confinement of an accused is determinative of the

issue. In contrast with a city fiscal, it is undisputed that a municipal court judge,
even in the performance of his function to conduct preliminary investigations,
retains the power to issue an order of release or commitment 32. Furthermore, upon
the filing of the complaint with the Municipal Trial Court, the intent behind art. 125 is
satisfied considering that by such act, the detained person is informed of the crime
imputed against him and, upon his application with the court, he may be released
on bail 33. Petitioner himself acknowledged this power of the MCTC to order his
release when he applied for and was granted his release upon posting bail 34. Thus,
the very purpose underlying Article 125 has been duly served with the filing of the
complaint with the MCTC. We agree with the postion of the Ombudsman that such
filing of the complaint with the MCTC interrupted the period prescribed in said
Article.

Finally, we note that it was the mother of private complainant who filed the
complaint against petitioner with the 7th MCTC of Liloan, Metro Cebu. If tere was
any error in this procedure, private respondents should not be held liable. In the
same manner, petitioner's argument that the controversial orders issued by the
MCTC are contrary' to law does not give rise to criminal liability on the part of the
respondents. Respondent police officers may have rendered themselves open to
sanctions if they had released petitioners without the order of the court, knowing
fully well that a complainant was a already filed with it.

WHEREFORE, finding no grave abuse of discretion in the issuance of the assailed

January 19, 1998 Resolution and the April 13, 1998 Order of the Office of the Deputy
Ombudsman for the Military, the Court resolves to DISMISS the petition. No
pronouncement as to costs.

SO ORDERED.

Vitug, Panganiban and Purisima, JJ., concur.

Romero, J., abroad on official business leave.

Footnotes

Rollo, pp. 42-43.

Rollo, pp. 34-36.

Rollo, p. 6.

Annex "B" of Petition; Rollo, p. 37.

Annex "C" of Petition; Rollo, p. 38

Rollo, p. 7.

Annex "D" of Petition; Rollo, p. 39.

Annex "E" of Petition; Rollo, p. 40.

Annex "F" of Petition; Rollo, p. 41.

10

Rollo, p. 8.

11

Which reads, in part, as follows:

In pursuance of the Office's mandate to promote efficient service to the people and
conformably with the powers vested in the Ombudsman under Section 15, par. 10
and Section 31 of RA 6770, the Deputy Ombudsman for the Military shall continue
to investigate all cases against personnel of the PNP, BFP, and BJMP.

12

Rollo, pp. 9-10.

13
Entitled, "An Act Establishing the Philippine National Police Under a
Reorganized Department of the Interior and Local Government and For Other
Purposes," otherwise known as the Department of the Interior and Local
Government Act of 1990.

14
R.A. 6975, Section 2. Declaration of Policy. It is hereby declared that the
policy of the State to promote peace and order, ensure public safety and further
strenghten local government capability aimed towards the effective delivery of the

basic services to the citizenry through the establishment of a highly efficient and
competent police force that is national in scope and civilian in character. . . .

The police force shall be organized, trained and equipped primarily for the
performance of police functions. Its national shall scope and civilian character shall
be paramount. . . .

15

Rollo, pp. 79-81.

16

248 SCRA 566.

17

Id. pp. 587-588.

18

Rollo, p. 92.

19

Reply; Rollo, pp. 95-96.

20
Record of the Constitutional Commission, vol. 2, p. 318-320 (hereinafter 2
Record).

21

2 Record, p. 267.

22

2 Record, p. 268.

23

Sec. 5.

xxx

xxx

xxx

Child Prostitution and Other Sexual Abuse.

The penalty of reclusion temporal in its medium period to reclusion perpetua shall
be imposed upon the following:

xxx

xxx

xxx

(b)
Those who conmit the act of sexual intercourse or lascivious conduct with a
child exploited in prostitution or subjected to other sexual
abuse: . . .

24

Rollo, p. 98.

25

Rollo, p. 27.

26

Rollo, p. 35.

27

Comment, p. 83.

28

Laurel v. Misa, 76 Phil 372.

29

Lino v. Fugoso, 77 Phil. 933.

30
Sayo v. Chief of Police of Manila, 80 Phil 859 citing Section 1, Article VIII of the
Constitution.

31

80 Phil. 875.

32
Rule 112, Sec. 6 (b), Rules of Court. When warrant of arrest may issue. (a)
By the Regional Trial Court. Upon the filing of an information, the Regional Trial
Court may issue a warrant for the arrest of the accused.

(b)
By th Municipal Trial Court. If the municipal trial judge conducting the
preliminary investigation is satisfied after an examination in writing and under oath
of the complainant and his witnesses in the form of searching questions and
answers, 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, he
shall issue a warrant of arrest.

33
Rule 112, Sec. 5, Rules of Court. Duty of investigating judge. Within ten (10
days after the conclusion of the preliminary investigation, the investigating judge
shall transmit to the provincial or city fiscal, for appropriate action, the resolution of
the case, which shall include: (a) the warrant, if the arrest is by virtue of a warrant;
(b) the affidavits and other supporting evidence of the parties; (c) the undertaking
or bail of the accused; (d) the order of release of the accused and the cancellation
of his bail bond, if the resolution is for the dismissal of the complaint. . . .

Rule 114, Section 4, Rules of Court. Bail, a matter of right. All persons in custody
shall; (a) before or after conviction by the Metropolitan Trial Court, Municipal Trial
Court, Municipal Trial Court in Cities and Municipal Circuit Trial Court; and (b) before
conviction by the Regional Trial Court of an offense not punishable by death,
reclusion perpetua or life imprisonment, be admitted to bail as a matter of right,
with sufficient sureties, or be released on recognizance as prescribed by law or this
Rule.1wphi1.nt

34

Rollo, p. 40.

The Lawphil Project - Arellano Law Foundation

SECOND DIVISION
[G.R. Nos. 153524-25. January 31, 2005]

RODOLFO SORIA and EDIMAR BISTA, petitioners, vs. HON. ANIANO

DESIERTO in his capacity as Head of the Office of the
Ombudsman, HON. ORLANDO C. CASIMIRO in his capacity as
Deputy Ombudsman for Military, P/INS. JEFFREY T. GOROSPE,
SPO2 ROLANDO G. REGACHO, SPO1 ALFREDO B. ALVIAR, JR.,
PO3 JAIME D. LAZARO, PO2 FLORANTE B. CARDENAS, PO1
JOSEPH A. BENAZA, SPO1 FRANKLIN D. CABAYA and SPO4
PEDRO PAREL, respondents.
DECISION
CHICO-NAZARIO, J.:

Yet again, we are tasked to substitute our judgment for that of the Office of the
Ombudsman in its finding of lack of probable cause made during preliminary
investigation. And, yet again, we reaffirm the time-honored practice of non-interference
in the conduct of preliminary investigations by our prosecutory bodies absent a showing
of grave abuse of discretion on their part.
Petitioners, thru a special civil action for certiorari,[1] contend precisely that the
public respondents herein officers of the Office of the Ombudsman gravely abused their
discretion in dismissing the complaint for violation of Article 125 of the Revised Penal
Code (Delay in the delivery of detained persons) against private respondents herein,
members of the Philippine National Police stationed at the Municipality of Santa, Ilocos
Sur.

From the respective pleadings [2] of the parties, the following facts appear to be
indubitable:

1. On or about 8:30 in the evening of 13 May 2001 (a Sunday and the day before the
14 May 2001 Elections[3]), petitioners were arrested without a warrant by respondents
police officers for alleged illegal possession of firearms and ammunition;
2. Petitioner Soria was arrested for alleged illegal possession of .38 cal. revolver (a
crime which carries with it the penalty of prision correccional in its maximum period)
and for violation of Article 261 par. (f) of the Omnibus Election Code in relation to
the Commission on Election Resolution No. 3328 (which carries the penalty of
imprisonment of not less than one [1] year but not more than six [6] years);
3. Petitioner Bista was arrested for alleged illegal possession of sub-machine pistol
UZI, cal. 9mm and a .22 cal. revolver with ammunition;
4. Immediately after their arrest, petitioners were detained at the Santa, Ilocos Sur,
Police Station. It was at the Santa Police Station that petitioner Bista was identified by
one of the police officers to have a standing warrant of arrest for violation of Batas
Pambansa Blg. 6 issued by the Municipal Trial Court (MTC) of Vigan, Ilocos Sur,
docketed as Criminal Case No. 12272;
5. The next day, at about 4:30 p.m. of 14 May 2001 (Monday and election day),
petitioners were brought to the residence of Provincial Prosecutor Jessica Viloria in
San Juan, Ilocos Sur, before whom a Joint-Affidavit against them was subscribed and
sworn to by the arresting officers. From there, the arresting officers brought the
petitioners to the Provincial Prosecutors Office in Vigan, Ilocos Sur, and there at about
6:00 p.m. the Joint-Affidavit was filed and docketed;
6. At about 6:30 in the evening of the same day, 14 May 2001, petitioner Soria
was released upon the order of Prosecutor Viloria to undergo the requisite preliminary
investigation, while petitioner Bista was brought back and continued to be detained at
the Santa Police Station. From the time of petitioner Sorias detention up to the time of
his release, twenty-two (22) hours had already elapsed;
7. On 15 May 2001, at around 2:00 in the afternoon, petitioner Bista was brought
before the MTC of Vigan, Ilocos Sur, where the case for violation of Batas Pambansa

Blg. 6 was pending. Petitioner Bista posted bail and an Order of Temporary Release
was issued thereafter;
8. At this point in time, no order of release was issued in connection with petitioner
Bistas arrest for alleged illegal possession of firearms. At 4:30 in the afternoon of
the same day (15 May 2001), an information for Illegal Possession of Firearms and
Ammunition, docketed as Criminal Case No. 4413-S, was filed against petitioner
Bista with the 4th Municipal Circuit Trial Court of Narvacan, Ilocos Sur. At 5:00 in the
afternoon, informations for Illegal Possession of Firearms and Ammunition and
violation of Article 261 par. (f) of the Omnibus Election Code in relation to
COMELEC Resolution No. 3328, docketed as Criminal Cases No. 2269-N and No.
2268-N, respectively, were filed in the Regional Trial Court at Narvacan, Ilocos Sur;
9. On 08 June 2001, petitioner Bista was released upon filing of bail bonds in
Criminal Cases No. 2268-N and No. 4413-S. He was detained for 26 days.
10. On 15 August 2001, petitioners filed with the Office of the Ombudsman for
Military Affairs a complaint-affidavit for violation of Art. 125 of the Revised Penal
Code against herein private respondents.
11. After considering the parties respective submissions, the Office of the
Ombudsman rendered the first assailed Joint Resolution dated 31 January 2002
dismissing the complaint for violation of Art. 125 of the Revised Penal Code for lack
of merit; and
12. On 04 March 2002, petitioners then filed their motion for reconsideration which
was denied for lack of merit in the second assailed Resolution dated 25 March 2002.
Article 125 of the Revised Penal Code states:

Art. 125. Delay in the delivery of detained persons to the proper judicial authorities. The penalties provided in the next preceding article shall be imposed upon the public
officer or employee who shall detain any person for some legal ground and shall fail
to deliver such person to the proper judicial authorities within the period of: twelve
(12) hours, for crimes or offenses punishable by light penalties, or their equivalent;
eighteen (18) hours, for crimes or offenses punishable by correctional penalties, or
their equivalent; and thirty-six (36) hours, for crimes or offenses punishable by
afflictive or capital penalties, or their equivalent.

In every case, the person detained shall be informed of the cause of his detention and
shall be allowed, upon his request, to communicate and confer at any time with his
attorney or counsel.
It is not under dispute that the alleged crimes for which petitioner Soria was arrested
without warrant are punishable by correctional penalties or their equivalent, thus,
criminal complaints or information should be filed with the proper judicial authorities
within 18 hours of his arrest. Neither is it in dispute that the alleged crimes for which
petitioner Bista was arrested are punishable by afflictive or capital penalties, or their
equivalent, thus, he could only be detained for 36 hours without criminal complaints or
information having been filed with the proper judicial authorities.
The sole bone of contention revolves around the proper application of the 12-18-36
periods. With respect specifically to the detention of petitioner Soria which lasted for 22
hours, it is alleged that public respondents gravely erred in construing Article 125 [4] as
excluding Sundays, holidays and election days in the computation of the periods
prescribed within which public officers should deliver arrested persons to the proper
judicial authorities as the law never makes such exception. Statutory construction has it
that if a statute is clear and unequivocal, it must be given its literal meaning and applied
without any attempts at interpretation. [5] Public respondents, on the other hand, relied on
the cases of Medina v. Orozco, Jr.,[6] and Sayo v. Chief of Police of Manila [7] and on
commentaries[8] of jurists to bolster their position that Sundays, holidays and election
days are excluded in the computation of the periods provided in Article 125, [9] hence, the
arresting officers delivered petitioners well within the allowable time.
In addition to the foregoing arguments and with respect specifically to petitioner
Bista, petitioners maintain that the filing of the information in court against petitioner
Bista did not justify his continuous detention. The information was filed at 4:30 p.m. of
15 May 2001 but the orders for his release were issued by the Regional Trial Court and
Municipal Trial Court of Narvacan, Ilocos Sur, only on 08 June 2001. They argued that
based on law and jurisprudence, if no charge is filed by the prosecutor within the period
fixed by law, the arresting officer must release the detainee lest he be charged with
violation of Article 125.[10] Public respondents countered that the duty of the arresting
officers ended upon the filing of the informations with the proper judicial authorities
following the rulings in Agbay v. Deputy Ombudsman for the Military,[11] and People v.
Acosta.[12]
From a study of the opposing views advanced by the parties, it is evident that public
respondents did not abuse their discretion in dismissing for lack of probable cause the
complaint against private respondents.

Grave abuse of discretion is such capricious and whimsical exercise of judgment on

the part of the public officer concerned which is equivalent to an excess or lack of
jurisdiction. The abuse of discretion must be so patent and gross as to amount to an
evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, or to act
at all in contemplation of law as where the power is exercised in an arbitrary and
despotic manner by reason of passion or hostility.[13]
No grave abuse of discretion, as defined, can be attributed to herein public
respondents. Their disposition of petitioners complaint for violation of Article 125 of the
Revised Penal Code cannot be said to have been conjured out of thin air as it was
properly backed up by law and jurisprudence. Public respondents ratiocinated thus:

As aptly pointed out by the respondents insofar as the complaint of Rodolfo Soria is
concerned, based on applicable laws and jurisprudence, an election day or a special
holiday, should not be included in the computation of the period prescribed by law for
the filing of complaint/information in courts in cases of warrantless arrests, it being a
no-office day. (Medina vs. Orosco, 125 Phil. 313.) In the instant case, while it appears
that the complaints against Soria for Illegal Possession of Firearm and Violation of
COMELEC Resolution No. 3328 were filed with the Regional Trial Court and
Municipal Trial Court of Narvacan, Ilocos Sur, only on May 15, 200[1] at 4:30 p.m.,
he had already been released the day before or on May 14, 2001 at about 6:30 p.m. by
the respondents, as directed by Prov. Prosecutor Jessica [Viloria]. Hence, there could
be no arbitrary detention or violation of Article 125 of the Revised Penal Code to
speak of.[14]
Indeed, we did hold in Medina v. Orozco, Jr.,[15] that

. . . The arresting officers duty under the law was either to deliver him to the proper
judicial authorities within 18 hours, or thereafter release him. The fact however is that
he was not released. From the time of petitioners arrest at 12:00 oclock p.m. on
November 7 to 3:40 p.m. on November 10 when the information against him for
murder actually was in court, over 75 hours have elapsed.
But, stock should be taken of the fact that November 7 was a Sunday; November 8
was declared an official holiday; and November 9 (election day) was also an official
holiday. In these three no-office days, it was not an easy matter for a fiscal to look for
his clerk and stenographer, draft the information and search for the Judge to have him
act thereon, and get the clerk of court to open the courthouse, docket the case and

have the order of commitment prepared. And then, where to locate and the uncertainty
of locating those officers and employees could very well compound the fiscals
difficulties. These are considerations sufficient enough to deter us from declaring that
Arthur Medina was arbitrarily detained. For, he was brought to court on the very first
office day following arrest.
And, in Sayo v. Chief of Police of Manila[16] --

. . . Of course, for the purpose of determining the criminal liability of an officer

detaining a person for more than six hours prescribed by the Revised Penal Code, the
means of communication as well as the hour of arrest and other circumstances, such
as the time of surrender and the material possibility for the fiscal to make the
investigation and file in time the necessary information, must be taken into
consideration.
As to the issue concerning the duty of the arresting officer after the information has
already been filed in Court, public respondents acted well within their discretion in ruling
thus:

In the same vein, the complaint of Edimar Bista against the respondents for Violation
of Article 125, will not prosper because the running of the thirty-six (36)-hour period
prescribed by law for the filing of the complaint against him from the time of his
arrest was tolled by one day (election day). Moreover, he has a standing warrant of
arrest for Violation of B.P. Blg. 6 and it was only on May 15, 2001, at about 2:00 p.m.
that he was able to post bail and secure an Order of Release. Obviously, however, he
could only be released if he has no other pending criminal case requiring his
continuous detention.
The criminal Informations against Bista for Violations of Article 125, RPC and
COMELEC Resolution No. 3328 were filed with the Regional Trial Court and
Municipal Trial Court of Narvacan, Ilocos Sur, on May 15, 2001 (Annexes G and I,
Complaint-Affidavit of Edimar Bista) but he was released from detention only on
June 8, 2001, on orders of the RTC and MTC of Narvacan, Ilocos Sur (Annexes J and
K, Complaint-Affidavit). Was there a delay in the delivery of detained person to the
proper judicial authorities under the circumstances? The answer is in the negative. The
complaints against him was (sic) seasonably filed in the court of justice within the
thirty-six (36)-hour period prescribed by law as discussed above. The duty of the
detaining officers is deemed complied with upon the filing of the complaints. Further

action, like issuance of a Release Order, then rests upon the judicial authority (People
v. Acosta [CA] 54 O.G. 4739).[17]
The above disposition is in keeping with Agbay v. Deputy Ombudsman for the
Military,[18] wherein we ordained that

. . . Furthermore, upon the filing of the complaint with the Municipal Trial Court, the
intent behind Art. 125 is satisfied considering that by such act, the detained person is
informed of the crime imputed against him and, upon his application with the court,
he may be released on bail. Petitioner himself acknowledged this power of the MCTC
to order his release when he applied for and was granted his release upon posting bail.
Thus, the very purpose underlying Article 125 has been duly served with the filing of
the complaint with the MCTC. We agree with the position of the Ombudsman that
such filing of the complaint with the MCTC interrupted the period prescribed in said
Article.
All things considered, there being no grave abuse of discretion, we have no choice
but to defer to the Office of the Ombudsmans determination that the facts on hand do
not make out a case for violation of Article 125 of the Revised Penal Code.
As we have underscored in numerous decisions --

We have consistently refrained from interfering with the investigatory and

prosecutorial powers of the Ombudsman absent any compelling reason. This policy is
based on constitutional, statutory and practical considerations. We are mindful that the
Constitution and RA 6770 endowed the Office of the Ombudsman with a wide
latitude of investigatory and prosecutorial powers, virtually free from legislative,
executive or judicial intervention, in order to insulate it from outside pressure and
improper influence. Moreover, a preliminary investigation is in effect a realistic
judicial appraisal of the merits of the case. Sufficient proof of the guilt of the accused
must be adduced so that when the case is tried, the trial court may not be bound, as a
matter of law, to order an acquittal. Hence, if the Ombudsman, using professional
judgment, finds the case dismissible, the Court shall respect such findings, unless
clothed with grave abuse of discretion. Otherwise, the functions of the courts will
be grievously hampered by innumerable petitions assailing the dismissal of
investigatory proceedings conducted by the Office of the Ombudsman with regard to
complaints filed before it. In much the same way, the courts will be swamped with
cases if they will have to review the exercise of discretion on the part of fiscals or

prosecuting attorneys each time the latter decide to file an information in court or
dismiss a complaint by a private complainant. [19] (Emphasis supplied)
WHEREFORE, premises considered, the petition dated 27 May 2002 is hereby
DISMISSED for lack of merit. The Joint Resolution dated 31 January 2002 and the
Order dated 25 March 2002 of the Office of the Ombudsman are hereby AFFIRMED. No
costs.
SO ORDERED.
Puno, (Chairman), Austria-Martinez, Callejo, Sr., and Tinga, JJ., concur.

[1]

Rollo, pp. 3-22.

[2]

Petitioners PETITION FOR CERTIORARI (UNDER RULE 65 OF THE RULES OF COURT) dated 27
May 2002, Rollo, pp. 3-22; Public Respondents COMMENT dated 09 October 2002, Rollo, pp.
105-128; Petitioners reply (To: Respondents Comment dated 09 October 2002), Rollo, pp. 130137; Petitioners MEMORANDUM dated 25 March 2003, Rollo, pp. 140-164; Public Respondents
MEMORANDUM dated 01 April 2003, Rollo, pp. 168-189.

[3]

Erroneously designated by the public respondents as Presidential Elections.

[4]

Revised Penal Code.

[5]

Rollo, p. 131.

[6]

No. L-26723, 22 December 1966, 18 SCRA 1168, 1170.

[7]

No. L-2128, 12 May 1948, 80 Phil. 859.

[8]

(1) Aquino, The Revised Penal Code, 1997 ed., p. 74.

(2) Boado, Notes and Cases on the Revised Penal Code, 2001 ed., p. 318 (Rollo, pp. 117 &179).
[9]

Revised Penal Code.

[10]

Id.

[11]

G.R. No. 134503, 02 July 1999, 309 SCRA 726 (Rollo, pp. 123-124).

[12]

C.A. 54 Official Gazette 4739 (Rollo, pp. 122-123).

[13]

Duero v. Court of Appeals, G.R. No. 131282, 04 January 2002, 373 SCRA 11, 17; Perez v. Office of
the Ombudsman, G.R. No. 131445, 27 May 2004.

[14]

Rollo, pp. 25-26

[15]

Supra, note 5.

[16]

Supra, note 6 at 870.

[17]

Rollo, p. 26.

[18]

Supra, note 10 at 739-740.

[19]

Perez v. Office of the Ombudsman, supra, note 12, citing Presidential Commission on Good
Government v. Desierto, G.R. No. 140232, 19 January 2001, 349 SCRA 767; and Presidential Ad
Hoc Fact-Finding Committee on Behest Loans v. Desierto, G.R. No. 136192, 14 August 2001,
362 SCRA 730.