[G.R. No. 154130.

October 1, 2003]
BENITO ASTORGA, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.
DECISION
YNARES-SANTIAGO, J.:
This is a petition for review under Rule 45 of the Rules of Court, seeking the reversal of a Decision of the
Sandiganbayan in Criminal Case No. 24986, dated July 5, 2001,[1] as well as its Resolutions dated September
28, 2001 and July 10, 2002.
On October 28, 1998, the Office of the Ombudsman filed the following Information against Benito
Astorga, Mayor of Daram, Samar, as well as a number of his men for Arbitrary Detention:
That on or about the 1st day of September, 1997, and for sometime subsequent thereto, at the Municipality
of Daram, Province of Samar, Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, a public officer, being the Municipal Mayor of Daram, Samar, in such capacity and
committing the offense in relation to office, conniving, confederating and mutually helping with
unidentified persons, who are herein referred to under fictitious names JOHN DOES, who were armed with
firearms of different calibers, with deliberate intent, did then and there willfully, unlawfully and feloniously
detain Elpidio Simon, Moises dela Cruz, Wenifredo Maniscan, Renato Militante and Crisanto Pelias, DENR
Employees, at the Municipality of Daram, by not allowing them to leave the place, without any legal and
valid grounds thereby restraining and depriving them of their personal liberty for nine (9) hours, but without
exceeding three (3) days.
CONTRARY TO LAW.[2]
On September 1, 1997, Regional Special Operations Group (RSOG) of the Department of Environment
and Natural Resources (DENR) Office No. 8, Tacloban City sent a team to the island of Daram, Western
Samar to conduct intelligence gathering and forest protection operations in line with the governments
campaign against illegal logging. The team was composed of Forester II Moises dela Cruz, Scaler
Wenifredo Maniscan, Forest Ranger Renato Militante, and Tree Marker Crisanto Pelias, with Elpidio E. Simon,
Chief of the Forest Protection and Law Enforcement Section, as team leader. The team was escorted by
SPO3 Andres B. Cinco, Jr. and SPO1 Rufo Capoquian.[3]
The team stopped at Brgy. Bagacay, Daram, Western Samar at 2:00 p.m., where they saw two yacht-
like boats being constructed. After consulting with the local barangay officials, the team learned that the
boats belonged to a certain Michael Figueroa. However, since Figueroa was not around at the time, the
team left Brgy. Bagacay.[4]
En route to Brgy. Manungca, Sta. Rita, Samar, the team spotted two more boats being constructed in
the vicinity of Brgy. Lucob-Lucob, Daram, Samar, between 4:30-5:00 p.m., prompting them to stop and
investigate. Thus, Maniscan and Militante disembarked from the DENRs service pump boat and proceeded
to the site of the boat construction. There, they met Mayor Astorga. After conversing with the mayor,
Militante returned to their boat for the purpose of fetching Simon, at the request of Mayor Astorga. [5]
When Simon, accompanied by dela Cruz, SPO3 Cinco, and SPO1 Capoquian, approached Mayor
Astorga to try and explain the purpose of their mission, Simon was suddenly slapped hard twice on the
shoulder by Mayor Astorga, who exclaimed, Puwede ko kamo papaglanguyon pag-uli ha Tacloban. Ano,
di ka maaram nga natupa ako? Natupa baya ako. Diri kamo makauli yana kay puwede kame e charge
ha misencounter. (I can make you swim back to Tacloban. Dont you know that I can box? I can box. Dont
you know that I can declare this a misencounter?)[6] Mayor Astorga then ordered someone to fetch
reinforcements, and forty-five (45) minutes later, or between 5:00-6:00 p.m., a banca arrived bearing ten
(10) men, some of them dressed in fatigue uniforms. The men were armed with M-16 and M14 rifles, and
they promptly surrounded the team, guns pointed at the team members. [7] At this, Simon tried to explain to
Astorga the purpose of his teams mission.[8] He then took out his handheld ICOM radio, saying that he was
going to contact his people at the DENR in Catbalogan to inform them of the teams
whereabouts. Suddenly, Mayor Astorga forcibly grabbed Simons radio, saying, Maupay nga waray kamo
radio bis diri somabut an iyo opisina kon hain kamo, bis diri kamo maka aro hin bulig. (Its better if you have
no radio so that your office would not know your whereabouts and so that you cannot ask for
help).[9] Mayor Astorga again slapped the right shoulder of Simon, adding, Kong siga kamo ha Leyte ayaw
pagdad-a dinhi ha Samar kay diri kamo puwede ha akon. (If you are tough guys in Leyte, do not bring it to
Samar because I will not tolerate it here.)[10] Simon then asked Mayor Astorga to allow the team to go
home, at which Mayor Astorga retorted that they would not be allowed to go home and that they would
instead be brought to Daram.[11] Mayor Astorga then addressed the team, saying, Kon magdakop man la
kamo, unahon an mga dagko. Kon madakop niyo an mga dagko, an kan Figueroa dida ha Bagacay
puwede ko liwat ipadakop an akon. (If you really want to confiscate anything, you start with the big-time. If
you confiscate the boats of Figueroa at Brgy. Bagacay, I will surrender mine.) [12] Simon then tried to
reiterate his request for permission to leave, which just succeeded in irking Mayor Astorga, who angrily
said, Diri kamo maka uli yana kay dad on ko kamo ha Daram, para didto kita mag uro istorya. (You cannot
go home now because I will bring you to Daram. We will have many things to discuss there.)[13]
The team was brought to a house where they were told that they would be served dinner. The team
had dinner with Mayor Astorga and several others at a long table, and the meal lasted between 7:00-8:00
p.m.[14] After dinner, Militante, Maniscan and SPO1 Capoquian were allowed to go down from the house,
but not to leave the barangay.[15] On the other hand, SPO3 Cinco and the rest just sat in the house until
2:00 a.m. when the team was finally allowed to leave.[16]
Complainants filed a criminal complaint for arbitrary detention against Mayor Astorga and his men,
which led to the filing of the above-quoted Information.
Mayor Astorga was subsequently arraigned on July 3, 2000, wherein he pleaded not guilty to the
offenses charged.[17] At the trial, the prosecution presented the testimonies of SPO1 Capoquian and SPO3
Cinco, as well as their Joint Affidavit.[18] However, the presentation of Simons testimony was not completed,
and none of his fellow team members came forward to testify. Instead, the members of the team sent by
the DENR RSOG executed a Joint Affidavit of Desistance.[19]
On July 5, 2001, the Sandiganbayan promulgated its Decision, disposing of the case as follows:
WHEREFORE, premises considered, judgment is hereby rendered finding accused BENITO ASTORGA Y
BOCATCAT guilty of Arbitrary Detention, and in the absence of any mitigating or aggravating
circumstances, applying the Indeterminate Sentence Law, he is hereby sentenced to suffer imprisonment
of four (4) months of arresto mayor as minimum to one (1) year and eight (8) months of prision
correctional as maximum.
SO ORDERED.[20]
The accused filed a Motion for Reconsideration dated July 11, 2001 [21] which was denied by the
Sandiganabayan in a Resolution dated September 28, 2001.[22] A Second Motion for Reconsideration
dated October 24, 2001[23] was also filed, and this was similarly denied in a Resolution dated July 10,
2002.[24]
Hence, the present petition, wherein the petitioner assigns a sole error for review:
5.1. The trial court grievously erred in finding the accused guilty of Arbitrary Detention as defined and
penalized under Article 124 of the Revised Penal Code, based on mere speculations, surmises and
conjectures and, worse, notwithstanding the Affidavit of Desistance executed by the five (5) complaining
witnesses wherein the latter categorically declared petitioners innocence of the crime charged. [25]
Petitioner contends that the prosecution failed to establish the required quantum of evidence to
prove the guilt of the accused,[26] especially in light of the fact that the private complainants executed a
Joint Affidavit of Desistance.[27] Petitioner asserts that nowhere in the records of the case is there any
competent evidence that could sufficiently establish the fact that restraint was employed upon the
persons of the team members.[28] Furthermore, he claims that the mere presence of armed men at the
scene does not qualify as competent evidence to prove that fear was in fact instilled in the minds of the
team members, to the extent that they would feel compelled to stay in Brgy. Lucob-Lucob.[29]
Arbitrary Detention is committed by any public officer or employee who, without legal grounds,
detains a person.[30] The elements of the crime are:
1. That the offender is a public officer or employee.
2. That he detains a person.
3. That the detention is without legal grounds.[31]
That petitioner, at the time he committed the acts assailed herein, was then Mayor of Daram, Samar is
not disputed. Hence, the first element of Arbitrary Detention, that the offender is a public officer or
employee, is undeniably present.
Also, the records are bereft of any allegation on the part of petitioner that his acts were spurred by
some legal purpose. On the contrary, he admitted that his acts were motivated by his instinct for self-
preservation and the feeling that he was being singled out. [32] The detention was thus without legal
grounds, thereby satisfying the third element enumerated above.
What remains is the determination of whether or not the team was actually detained.
In the case of People v. Acosta,[33] which involved the illegal detention of a child, we found the
accused-appellant therein guilty of kidnapping despite the lack of evidence to show that any physical
restraint was employed upon the victim. However, because the victim was a boy of tender age and he
was warned not to leave until his godmother, the accused-appellant, had returned, he was practically a
captive in the sense that he could not leave because of his fear to violate such instruction.[34]
In the case of People v. Cortez,[35] we held that, in establishing the intent to deprive the victim of his
liberty, it is not necessary that the offended party be kept within an enclosure to restrict her freedom of
locomotion. At the time of her rescue, the offended party in said case was found outside talking to the
owner of the house where she had been taken. She explained that she did not attempt to leave the
premises for fear that the kidnappers would make good their threats to kill her should she do so. We ruled
therein that her fear was not baseless as the kidnappers knew where she resided and they had earlier
announced that their intention in looking for her cousin was to kill him on sight. Thus, we concluded that
fear has been known to render people immobile and that appeals to the fears of an individual, such as by
threats to kill or similar threats, are equivalent to the use of actual force or violence. [36]
The prevailing jurisprudence on kidnapping and illegal detention is that the curtailment of the victims
liberty need not involve any physical restraint upon the victims person. If the acts and actuations of the
accused can produce such fear in the mind of the victim sufficient to paralyze the latter, to the extent that
the victim is compelled to limit his own actions and movements in accordance with the wishes of the
accused, then the victim is, for all intents and purposes, detained against his will.
In the case at bar, the restraint resulting from fear is evident. Inspite of their pleas, the witnesses and
the complainants were not allowed by petitioner to go home.[37] This refusal was quickly followed by the
call for and arrival of almost a dozen reinforcements, all armed with military-issue rifles, who proceeded to
encircle the team, weapons pointed at the complainants and the witnesses.[38] Given such circumstances,
we give credence to SPO1 Capoquians statement that it was not safe to refuse Mayor Astorgas orders.[39] It
was not just the presence of the armed men, but also the evident effect these gunmen had on the actions
of the team which proves that fear was indeed instilled in the minds of the team members, to the extent
that they felt compelled to stay in Brgy. Lucob-Lucob. The intent to prevent the departure of the
complainants and witnesses against their will is thus clear.
Regarding the Joint Affidavit of Desistance executed by the private complainants, suffice it to say that
the principles governing the use of such instruments in the adjudication of other crimes can be applied
here. Thus, in People v. Ballabare, it was held that an affidavit of desistance is merely an additional ground
to buttress the defenses of the accused, not the sole consideration that can result in acquittal. There must
be other circumstances which, when coupled with the retraction or desistance, create doubts as to the
truth of the testimony given by the witnesses at the trial and accepted by the judge. Here, there are no
such circumstances.[40] Indeed, the belated claims made in the Joint Affidavit of Desistance, such as the
allegations that the incident was the result of a misunderstanding and that the team acceded to Mayor
Astorgas orders out of respect, are belied by petitioners own admissions to the contrary. [41] The Joint
Affidavit of Desistance of the private complainants is evidently not a clear repudiation of the material
points alleged in the information and proven at the trial, but a mere expression of the lack of interest of
private complainants to pursue the case. This conclusion is supported by one of its latter paragraphs, which
reads:
11. That this affidavit was executed by us if only to prove our sincerity and improving DENR
relations with the local Chiefs Executive and other official of Daram, Islands so that DENR
programs and project can be effectively implemented through the support of the local
officials for the betterment of the residence living conditions who are facing difficulties and
are much dependent on government support.[42]
Petitioner also assails the weight given by the trial court to the evidence, pointing out that the
Sandiganbayans reliance on the testimony of SPO1 Capoquian is misplaced, for the reason that SPO1
Capoquian is not one of the private complainants in the case. [43] He also makes much of the fact that
prosecution witness SPO1 Capoquian was allegedly not exactly privy to, and knowledgeable of, what
exactly transpired between herein accused and the DENR team leader Mr. Elpidio E. Simon, from their
alleged confrontation, until they left Barangay Lucob-Lucob in the early morning of 2 September 1997.[44]
It is a time-honored doctrine that the trial courts factual findings are conclusive and binding upon
appellate courts unless some facts or circumstances of weight and substance have been overlooked,
misapprehended or misinterpreted.[45] Nothing in the case at bar prompts us to deviate from this
doctrine. Indeed, the fact that SPO1 Capoquian is not one of the private complainants is completely
irrelevant. Neither penal law nor the rules of evidence requires damning testimony to be exclusively
supplied by the private complainants in cases of Arbitrary Detention. Furthermore, Mayor Astorgas claim
that SPO1 Capoquian was not exactly privy to what transpired between Simon and himself is belied by the
evidence. SPO1 Capoquian testified that he accompanied Simon when the latter went to talk to
petitioner.[46] He heard all of Mayor Astorgas threatening remarks.[47] He was with Simon when they were
encircled by the men dressed in fatigues and wielding M-16 and M-14 rifles.[48] In sum, SPO1 Capoquian
witnessed all the circumstances which led to the Arbitrary Detention of the team at the hands of Mayor
Astorga.
 Petitioner submits that it is unclear whether the team was in fact prevented from leaving Brgy. Lucob-
Lucob or whether they had simply decided to while away the time and take advantage of the purported
hospitality of the accused.[49] On the contrary, SPO3 Cinco clearly and categorically denied that they were
simply whiling away the time between their dinner with Mayor Astorga and their departure early the
following morning.[50] SPO1 Capoquian gave similar testimony, saying that they did not use the time
between their dinner with Mayor Astorga and their departure early the following morning to enjoy the
place and that, given a choice, they would have gone home.[51]
Petitioner argues that he was denied the cold neutrality of an impartial judge, because
the ponente of the assailed decision acted both as magistrate and advocate when he propounded very
extensive clarificatory questions on the witnesses. Surely, the Sandiganbayan, as a trial court, is not an idle
arbiter during a trial. It can propound clarificatory questions to witnesses in order to ferret out the truth. The
impartiality of the court cannot be assailed on the ground that clarificatory questions were asked during
the trial.[52]
Thus, we affirm the judgment of the Sandiganbayan finding petitioner guilty beyond reasonable
doubt of Arbitrary Detention. Article 124 (1) of the Revised Penal Code provides that, where the detention
has not exceeded three days, the penalty shall be arresto mayor in its maximum period to prision
correccional in its minimum period, which has a range of four (4) months and one (1) day to two (2) years
and four (4) months. Applying the Indeterminate Sentence Law, petitioner is entitled to a minimum term to
be taken from the penalty next lower in degree, or arresto mayor in its minimum and medium periods,
which has a range of one (1) month and one (1) day to four (4) months. Hence, the Sandiganbayan was
correct in imposing the indeterminate penalty of four (4) months of arresto mayor, as minimum, to one (1)
year and eight (8) months of prision correccional, as maximum.
Before closing, it may not be amiss to quote the words of Justice Perfecto in his concurring opinion
in Lino v. Fugoso, wherein he decried the impunity enjoyed by public officials in committing arbitrary or
illegal detention, and called for the intensification of efforts towards bringing them to justice:
The provisions of law punishing arbitrary or illegal detention committed by government officers form part of
our statute books even before the advent of American sovereignty in our country. Those provisions were
already in effect during the Spanish regime; they remained in effect under American rule; continued in
effect under the Commonwealth. Even under the Japanese regime they were not repealed. The same
provisions continue in the statute books of the free and sovereign Republic of the Philippines. This
notwithstanding, and the complaints often heard of violations of said provisions, it is very seldom that
prosecutions under them have been instituted due to the fact that the erring individuals happened to
belong to the same government to which the prosecuting officers belong. It is high time that every one
must do his duty, without fear or favor, and that prosecuting officers should not answer with cold shrugging
of the shoulders the complaints of the victims of arbitrary or illegal detention.
Only by an earnest enforcement of the provisions of articles 124 and 125 of the Revised Penal Code will it
be possible to reduce to its minimum such wanton trampling of personal freedom as depicted in this case.
The responsible officials should be prosecuted, without prejudice to the detainees right to the indemnity to
which they may be entitled for the unjustified violation of their fundamental rights.[53]
WHEREFORE, in view of the foregoing, the petition is hereby DENIED. The Decision of the
Sandiganbayan in Criminal Case No. 24986, dated July 5, 2001 finding petitioner BENITO ASTORGA guilty
beyond reasonable doubt of the crime of Arbitrary Detention and sentencing him to suffer the
indeterminate penalty of four (4) months of arresto mayor, as minimum, to one (1) year and eight (8)
months of prision correccional, as maximum, is AFFIRMED in toto.
Costs de oficio.
SO ORDERED.
[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, respondents.
DECISION
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 Fiscals 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-VIS-
CRIM-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
COMPETENCE 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.
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 in character (underscoring 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 latters 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 legislation. Therefore, nothing can prevent Congress from giving
the Ombudsman supervision and control over the Ombudsmans 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 Kuratong 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.
Petitioners 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 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 interfere 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 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 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 fulfilled 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 delivery to
a proper judicial authority as contemplated by Art. 125 of the Revised Penal Code.
Article 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.
Petitioners 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 pronouncement
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 complaint 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 position 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 there was any error in this procedure, private
respondents should not be held liable. In the same manner, petitioners 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 complaint was 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.