Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 122274 July 31, 1996

SUSAN V. LLENES, petitioner,

vs.
HON. ISAIAS P. DICDICAN, Presiding Judge, Regional Trial
Court of Cebu, Branch 11, HON. AMADO B. BAJARIAS, SR.,
Presiding Judge, Municipal Trial Court, Branch 7, and
VIVIAN G. GINETE, respondents.

DAVIDE, JR., J.:p

The key issue raised in this special civil action for certiorari
under Rule 65 of the Rules of Court is whether the filing with
the office of the Ombudsman of a complaint against a
government official for grave oral defamation interrupts the
period of prescription of such offense.

We find this issue to be important enough to merit our

attention. We thus resolved to give due course to the petition,
consider the private respondent's comment on the petition1
as the answer thereto, and decide it on the basis of the
pleadings which have sufficiently discussed the issue.

The factual and procedural antecedents are not disputed.

On 13 October 1993, private respondent Vivian G. Ginete,
then officer-in-charge of the Physical Education and School
Sports (PESS) Division of the Regional Office of Region VII in
Cebu City of the Department of Education, Culture and Sports
(DECS), filed with the Office of the Deputy Ombudsman for
the Visayas (hereinafter Ombudsman-Visayas) a complaint
for grave oral defamation2 allegedly committed on 23
September 1993 by petitioner Susan V. Llenes, an Education
Supervisor II of the same Regional Office.

The petitioner was required to file a counter-affidavit pursuant

to Administrative Order No. 7 of the Office of the
Ombudsman, but she failed to do so.

In his resolution of 15 March 1994,3 Antonio B. Yap, Graft

Investigation Officer I of the said office, recommended that
the case be indorsed to the Office of the City Prosecutor of
Cebu City for the filing of the necessary information against
the petitioner. This resolution was approved by the Deputy
Ombudsman-Visayas.

On 28 March 1994, the City Prosecutor of Cebu City filed with

the Municipal Trial Court (MTC) in Cebu City an information4
for grave oral defamation against the petitioner. This was
docketed as Criminal Case No. 35684-R and assigned to
Branch 7 thereof.

On 30 May 1994, the petitioner filed a motion to quash5 the

information on the ground that the "criminal action or liability"
has been extinguished. She contended that under Article 90
of the Revised Penal Code, the offense of grave oral
defamation prescribes in 6 months and that since the
information was filed only on 28 March 1994, or 186 days or
6 months and 6 days after its alleged commission, the crime
had then already prescribed. In support thereof, she cited the
decision in "Zalderia6 vs. Reyes, Jr., G.R. No. 102342, July 3,
1992, 211 SCRA 277," wherein this Court ruled that the filing
of an information at the fiscal's office will not stop the running
of the prescriptive period for crimes.

In her opposition,7 the private respondent cited Section 1,

Rule 110 of the Rules of the Court which provides, inter alia,
that for offense not subject to the rule on summary procedure
in special cases and which fall within the jurisdiction of
Municipal Trial Courts and Municipal Circuit Trial Courts, the
filing of the complaint directly with the said court or with the
fiscal's office interrupts the period of prescription of the
offense charged. The filing of the complaint by the private
respondent with the Office of the Deputy Ombudsman-
Visayas was equivalent to the filing of a complaint with the
fiscal's (now prosecutor's) office under said Section 1
pursuant to its powers under Section 15(1) of R.A. No. 6770,
otherwise known as the Ombudsman Act of 1989. The private
respondent further claimed that Zaldivia is inapplicable
because it involves an offense covered by the rule on
summary procedure and it explicitly stated that Section 1 of
Rule 110 excludes cases covered by the Rule on Summary
Procedure.

The Municipal Trial Court, per public respondent Judge

Bajarias, denied the motion to quash in the order of 18 July
1994.8 It fully agreed with the stand of the private
respondent.

Her motion to reconsider9 the above order having been

denied on 29 November 1994,10 the petitioner filed with the
Regional Trial Court (RTC) of Cebu a special civil action for
certiorari,11 which was docketed therein as Civil Case No.
CEB-16988. The case was assigned to Branch 11.

In its decision of 3 July 1995,12 the RTC, per public

respondent Judge Isaias P. Dicdican, affirmed the challenged
orders of Judge Bajarias of 18 July 1994 and 29 November
1994. It ruled that the order denying the motion to quash is
interlocutory and that the petitioner's remedy, per Acharon
vs. Purisima,13 reiterated in People vs. Bans,14 was to go to
trial without prejudice on her part to reiterate the special
defense she had invoked in her motion to quash and, if after
trial on the merits an adverse decision is rendered, to appeal
therefrom in the manner authorized by law. Besides, the
petitioner has not satisfactorily and convincingly shown that
Judge Bajarias has acted with grave abuse of discretion in
issuing the orders considering that the ground invoked by her
does not appear to be indubitable. And even assuming that
the MTC erred in venturing an opinion that the filing of the
complaint with the Office of the Ombudsman is equivalent to
the filing of a complaint with the fiscal's office, such error is
merely one of judgment. For, there is no decided case on the
matter, and the substantive laws have not clearly stated as to
what bodies or agencies of government should complaints or
informations be filed in order that the period of prescription
of crimes or offenses should be considered interrupted. Article
91 of the Revised Penal Code simply states that the
prescriptive period shall be interrupted by the "filing of the
complaint or information" and has not specified further where
such complaint or information should be filed.

Since the Regional Trial Court denied her motion to

reconsider15 the decision in the order of 23 August 1995,16
the petitioner filed this special civil action wherein she
reiterates the arguments she adduced before the two courts
below. The private respondent likewise did nothing more in
her responsive pleading than reiterate what she had raised
before the said courts.

The basic substantive laws on prescription of offense are

Article 90 and 91 of the Revised Penal Code for offenses
punished thereunder, and Act No. 3326, as amended, for
those penalized by special laws. Under Article 90 of the
Revised Penal Code, the crime of grave oral defamation,
which is the subject of the information in Criminal Case No.
35684-R of the MTC of Cebu, prescribes in 6 months. Since
Article 13 of the Civil Code provides that when the law speaks
of months it shall be understood to be of 30 days, then grave
oral defamation prescribes in 180 days.17 Article 91 of the
Revised Penal Code provides:

Art. 91. Computation of prescription of offenses. — The

period of prescription shall commence to run from the
day on which the crime is discovered by the offended
party, the authorities, or their agents, and shall be
interrupted by the filing of the complaint or information,
and shall commence to run again when such proceedings
terminate without the accused being convicted or
acquitted, or are unjustifiably stopped for any reason not
imputable to him.

The term of prescription shall not run when the offender

is absent from the Philippine Archipelago.

In the instant case, the alleged defamatory words were

directly uttered in the presence of the offended party on 23
September 1993. Hence, the prescriptive period for the
offense started to run on that date.

The matter of interruption of the prescriptive period due to

the filing of the complaint or information had been the subject
of conflicting decisions of this Court. In People vs. Tayco,18
People vs. Del Rosario,19 and People vs. Coquia,20 this Court
held that it is the filing of the complaint or information with
the proper court, viz. the court having jurisdiction over the
crime, which interrupts the running of the period of
prescription. On the other hand, in the first case of People vs.
Olarte,21 a case for libel, this Court held that the filing of the
complaint with the justice of the peace court even for
preliminary investigation purposes only interrupts the running
of the statute of limitations.

However, the decision of 28 February 1967 of this Court in

the second case of People vs. Olarte 22 resolved once and for
all what should be the doctrine, viz., that the filing of the
complaint with the municipal trial court even for purposes of
preliminary investigation only suspends the running of the
prescriptive period. Thus:

Analysis of the precedents on the issue of prescription

discloses that there are two lines of decisions following
differing criteria in determining whether prescription of
crimes has been interrupted. One line of precedents
holds that the filing of the complaint with the justice of
the peace (now municipal judge) does interrupt the
course of the prescriptive term: People vs. Olarte, L-
13027, June 30, 1960 and cases cited therein; People
vs. Uba, L-13106, October 16, 1959; People vs. Aquino,
68 Phil. 588, 590. Another series of decisions declares
that to produce interruption the complaint or information
must have been filed in the proper court that has
jurisdiction to try the case on its merits: People vs. Del
Rosario, L-15140, December 29, 1960; People vs.
Coquia, L-15456, June 29, 1963.

In view of this diversity of precedents, and in order to

provide guidance for Bench and Bar, this Court has
reexamined the question and, after mature
consideration, has arrived at the conclusion that the true
doctrine is, and should be, the one established by the
decisions holding that the filing on the complaint in the
Municipal Court, even if it be merely for purposes of
preliminary examination or investigation, should, and
does, interrupt the period of prescription of the criminal
responsibility, even if the court where the complaint or
information cannot try the case on its merits. Several
reasons buttress this conclusion: First, the text of Article
91 of the Revised Penal Code, in declaring that the period
of prescription "shall be interrupted by the filing of the
complaint or information" without distinguishing whether
the complaint is filed in the court for preliminary
examination or investigation merely, or for action on the
merits. Second, even if the court where the complaint or
 information is filed may only proceed to investigate the
case, its actuations already represent the initial step of
the proceedings against the offender. Third, it is unjust
to deprive the injured party of the right to obtain
vindication on account of delays that are not under his
control. All that the victim of the offense may do on his
part to initiate the prosecution is to file the requisite
complaint.

And it is no argument that Article 91 also expresses that

the interrupted prescription "shall commence to run
again when such proceedings terminate without the
accused being convicted or acquitted", thereby
indicating that the court in which the complaint or
information is filed must have power to acquit or convict
the accused. Precisely, the trial on the merits usually
terminates in conviction or acquittal, not otherwise. But
it is in the court conducting a preliminary investigation
where the proceedings may terminate without conviction
or acquittal, if the court should discharge the accused
because no prima facie case has been shown.

Considering the foregoing reasons, the Court hereby

overrules the doctrine of the cases of People vs. Del
Rosario, L-15140, December 29, 1960; and People vs.
Coquia, L-15456, promulgated June 29, 1963.

Then, in its decision of 30 May 1983 in Francisco vs. Court of

Appeals,23 this Court not only reiterated Olarte of 1967 but also
broadened its scope by holding that the filing of the complaint in
the fiscal's office for preliminary investigation also suspends the
running of the prescriptive period. Thus:

Article 91 of the Revised Penal Code provides that . . . .

Interpreting the foregoing provision, this Court in People

vs. Tayco held that the complaint or information referred
to in Article 91 is that which is filed in the proper court
and not the denuncia or accusation lodged by the
offended party in the Fiscal's Office. This is so, according
to the court, because under this rule it is so provided
that the period shall commence to run again when the
proceedings initiated by the filing of the complaint or
information terminated without the accused being
convicted or acquitted, adding that the proceedings in
the Office of the Fiscal cannot end there in the acquittal
or conviction of the accused.

The basis of the doctrine in the Tayco case, however,

was disregarded by this Court in the Olarte case, cited
by the Solicitor General. It should be recalled that before
the Olarte case, there was diversity of precedents on the
issue of prescription. One view declares that the filing of
the complaint with the justice of the peace (or municipal
judge) does interrupt the course of prescriptive term.
This view is found in People v. Olarte, L-13027, June 30,
1960, October 16, 1959; People v. Aquino, 68 Phil. 588,
590. The other pronouncement is that to produce
interruption, the complainant or information must have
been filed in the proper court that has jurisdiction to try
the case on its merits, found in the cases of People v. del
Rosario, L-15140, December 29, 1960; People v. Coquia.
L-15456, June 29, 1963.

The Olarte case set at rest the conflict views, and

enunciated the doctrine aforecited by the Solicitor
General. The reasons for the doctrine which We find
applicable to the case at bar read:

xxx xxx xxx

As is a well-known fact, like the proceedings in the court

conducting a preliminary investigation, a proceeding in
the Fiscal's Office may terminate without conviction or
acquittal.
 As Justice Claudio Teehankee has observed:

To the writer's mind, these reasons Logically

call with equal force, for the express
overruling also of the doctrine in People vs.
Tayco, 73 Phil. 509, (1941) that the filing of a
complaint or denuncia by the offended party
with the City Fiscal's Office which is required
by law to conduct the preliminary
investigation does not interrupt the period of
prescription. In chartered cities, criminal
prosecution is generally initiated by the filing
of the complaint or denuncia with the city
fiscal for preliminary investigation. In the case
of provincial fiscals, besides being empowered
like municipal judges to conduct preliminary
investigations, they may even reverse actions
of municipal judges with respect to charges
triable by Courts of Fist Instance . . . .

Clearly, therefore, the filing of the denuncia or complaint

for intriguing against honor by the offended party, later
changed by the Fiscal to grave oral defamation, even if
it were in the Fiscal's Office, 39 days after the alleged
defamatory remarks were committed (or discovered) by
the accused interrupts the period of prescription.
(emphasis supplied)

This Court reiterated Francisco in its resolution of 1 October 1993

in Calderon-Bargas vs. Regional Trial Court of Pasig, Metro
Manila.24

Sec. 1. How instituted. — For offenses not subject to the

rule on summary procedure in special cases, the
institution of criminal actions shall be as follows:

(a) For offenses falling under the

jurisdiction of the Regional Trial
 Courts, by filing the complaint with
the appropriate officer for the
purpose of conducting the requisite
preliminary investigation therein;

(b) For offenses falling under the

jurisdiction of the Municipal Trial
Courts and Municipal Circuit Trial
Courts, by filing the complaint or
information directly with the said
courts, or a complaint with the
fiscal's office. However, in
Metropolitan Manila and other
chartered cities, the complaint may
be filed only with the office of the
fiscal.

In all cases, such institution shall interrupt the period of

prescription of the offense charged. (emphasis supplied)

The rule, however, is entirely different under Act No. 3326, as

amended, whose Section 2 explicitly provides that the period of
prescription shall be interrupted by the institution of judicial
proceedings, i.e., the filing of the complaint or information with the
court. The said section reads:

Sec. 2. Prescription shall begin to run from the day of

the commission of the violation of the law, and if the
same be not known at the time, from the discovery
thereof and the institution of judicial proceedings for its
investigation and punishment.

The prescription shall be interrupted when proceedings

are instituted against the guilty person, and shall begin
to run again if the proceedings are dismissed for reasons
not constituting double jeopardy. (emphasis supplied)

And so, in Zaldivia vs. Reyes,25 this Court held that the
proceedings referred to in said Section 2 are "judicial
 proceedings," which means the filing of the complaint or
information with the proper court.

Zaldivia, however, provides no safe refuge to the petitioner, and

her invocation thereof misplaced. In the first place, it involved a
violation of an ordinance, which is covered by the Rule on Summary
Procedure. By its express mandate, Section 1, Rule 110 of the
Rules of Court does not apply to cases covered by the Rule on
Summary Procedure. Second, since the ordinance in question
partakes of a special penal statute Act No. 3326 is then applicable;
hence, it is the filing in the proper court of the complaint or
information which suspends the running of the period of
prescription. In Zaldivia, this Court categorically interpreted
Section 9 of the Rule on Summary Procedure to mean that "the
running of the prescriptive period shall be halted on the date the
case is actually filed in court and not on any date before that,
"which is in consonance with Section 2 of Act No. 3326.

What is then left to be determined is whether the filing of the

private respondent's complaint for grave oral defamation with the
office of the Ombudsman-Visayas is equivalent to filing the
complaint in the prosecutor's office such that it interrupted the
prescriptive period for grave oral defamation.

Sec. 12 and 13(1), Articles XI of the Constitution provide:

Sec. 12. The Ombudsman and his Deputies, as

protectors of the people, shall act promptly on
complaints filed in any form or manner against public
officials or employees of the Government, or any
subdivision or instrumentality thereof, including
government-owned or controlled corporations, and shall,
in appropriate case, notify the complaints of the action
taken and the result thereof.

Sec. 13. The Office of the Ombudsman shall have the

following powers, functions, and duties:
 1. Investigate on its own, or on complaint by
any person, any act or omission of any public
official, employee, office or agency, when such
act or omission appears to be illegal, unjust,
improper, or inefficient.

Corollarily, Section 13, 15(1), and 16 of R.A. No. 6770, otherwise

known as the Ombudsman Act of 1989, which Congress enacted
pursuant to paragraph 826 of the aforementioned Section 13,
Article XI of the Constitution, provides as follows:

Sec. 13. Mandate. — The Ombudsman and his Deputies,

as protectors of the people, shall act promptly on
complaints filed in any form or manner against officers
or employees of the Government, or of any subdivision,
agency or instrumentality thereof, including
government-owned or controlled corporations, and
enforce their administrative, civil and criminal liability in
every case where the evidence warrants in order to
promote efficient service by the Government to the
people.

xxx xxx xxx

Sec. 15. Powers, Functions and Duties — The Office of

the Ombudsman shall have the following powers,
function and duties:

1. Investigate and
prosecute on its own or
on complaint by any
person, any act or
omission of any public
officer or employee,
office or agency, when
such act or omission
appears to be illegal,
unjust, improper or
 inefficient. It has primary
jurisdiction over cases
cognizable by the
Sandiganbayan and, in
the exercise of this
primary jurisdiction, it
may take over, at any
stage from any
investigatory agency of
the Government, the
investigation of such
cases.

Sec. 16. Applicability. — The provisions of this Act shall

apply to all kinds of malfeasance, misfeasance, and
nonfeasance that have been committed by any officer or
employee as mentioned in Section 13 hereof, during his
tenure in office.

Needless to state, these broad constitutional and statutory

provisions vest upon the Ombudsman and his Deputies the power
to initiate or conduct preliminary investigations in criminal cases
filed against public officers or employees, including government-
owned or controlled corporations. Thus, in Deloso vs. Domingo,27
this Court held.

As protector of the people, the office of the Ombudsman

has the power, function and duty "to act promptly on
complaints filed in any form or manner against public
officials" (Sec. 12) and to "investigate . . . any act or
omission appears to be illegal, unjust, improper or
inefficient." (Sec. 13[1].) The Ombudsman is also
empowered to "direct the officer concerned," in this case
the Special Prosecutor, "to take appropriate action
against a public official . . . and to recommend his
prosecution" (Sec. 13[3]).
 The clause "any [illegal] act or omission of any public
official" is broad enough to embrace any crime
committed by a public official. The law does not qualify
the nature of the illegal act or omission of the public
official or employee that the Ombudsman may
investigate. It does not require that the act or omission
be related to or be connected with or arise from, the
performance of official duty. Since the law does not
distinguish, neither should we.

It must, however, be stressed that the authority of the

Ombudsman to investigate any illegal act or omission of any public
officer is not an exclusive authority; rather, it is a "shared or
concurrent authority in respect of the offense charged."28

A public officer, as distinguished from a government "employee,"

is a person whose duties involved the exercise of discretion in the
performance of the functions of government.29 The petitioner,
being an Education Supervisor II of the Regional Office of Region
VII of the DECS, is a public officer. The Ombudsman-Visayas then
has authority to conduct preliminary investigation of the private
respondent's complaint against the petitioner for grave oral
defamation. Undoubtedly, the rationale of the first Olarte case,
reiterated as the controlling doctrine in the second Olarte case
which was broadened in Francisco and reiterated in Calderon-
Bargas, must apply to complaints filed with the Office of the
Ombudsman against public officers and employees for purposes of
preliminary investigation. Accordingly, the filing of the private
respondent's complaint for grave oral defamation against the
petitioner with the Ombudsman-Visayas tolled the running of the
period of prescription of the said offense. Since the complaint was
filed on 13 October 1993, or barely twenty days from the
commission of the crime charged, the filing then of the information
on 28 March 1994 was very well within the six-month prescriptive
period.

WHEREFORE, the instant petition is DISMISSED for want of merit.

No pronouncement as to costs.

Narvasa, C.J., Padilla, Regallado, Romero, Melo, Puno, Vitug,

Kapunan, Mendoza, Francisco, Hermosisima, Jr., Panganiban and
Torres, Jr., JJ., concur.

Bellosillo, J., is on leave.