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CRIMRPO SECTION 2 RULE 112

Busuego v. Office of the Ombudsman GR No. 196842


October 9, 2013
J. Perez
ALFREDO ROMULO A. BUSUEGO OFFICE OF THE OMBUDSMAN (MINDANAO)
petitioner and ROSA S. BUSUEGO
respondents
SUMMARY
Private respondent Rosa filed a complaint for Concubinage before the Office of the Ombudsman against petitioner
Alfredo. Petitioner filed a motion to have the case referred to the Office of the City Prosecutor by virtue of OMB-DOJ
Circular No. 95-001, since the offenses were not committed in relation to his office. The ombudsman denied the motion
on the grounds that it was belatedly filed and referral to the prosecutor is not mandated under the OMB-DOJ circular. The
Supreme Court held there is no need for the Ombudsman to refer the complaint to the Office of the City Prosecutor since
the authority of the Ombudsman to investigate offenses involving public officers or employees is concurrent with other
government investigating agencies such as provincial, city and state prosecutors.
DOCTRINE
[T]he Constitution, Section 15 of the Ombudsman Act of 1989 and Section 4 of the Sandiganbayan Law, as amended, do
not give to the Ombudsman exclusive jurisdiction to investigate offenses committed by public officers or employees. The
authority of the Ombudsman to investigate offenses involving public officers or employees is concurrent with other
government investigating agencies such as provincial, city and state prosecutors. However, the Ombudsman, in the
exercise of its primary jurisdiction over cases cognizable by the Sandiganbayan, may take over, at any stage, from any
investigating agency of the government, the investigation of such cases.
NATURE OF THE CASE
Petition for certiorari seeking to annul and set aside the Resolution and Order of the Ombudsman which directed the filing
of an Information for Concubinage under Article 334 of the Revised Penal Code against petitioner Alfredo Romulo A.
Busuego
FACTS
 Private respondent Rosa Busuego filed a complaint for: (1) Concubinage under Article 334 of the Revised Penal
Code; (2) violation of Republic Act No. 9262 (Anti-Violence Against Women and Their Children); and (3) Grave
Threats under Article 282 of the Revised Penal Code, before the Office of the Ombudsman against her husband,
Alfredo, with designation Chief of Hospital, Davao Regional Hospital, Apokon, Tagum City.
 IN SUPPORT OF HER COMPLAINT FOR CONCUBINAGE, Rosa averred the following facts:
 She and petitioner Alfredo were married on July 12, 1975 at Davao City. They were blessed with two sons, Alfred
and Robert.
 Sometime in 1983, their marriage turned sour. At this time, Rosa unearthed photographs of, and love letters
addressed to Alfredo from, other women. Rosa confronted Alfredo who claimed ignorance of the existence of
these letters and innocence of any wrongdoing.
 Around this time, an opportunity to work as nurse in New York City, United States of America (US) opened up for
Rosa. Rosa informed Alfredo, who vehemently opposed Rosa's plan to work abroad. Nonetheless, Rosa
completed the necessary requirements to work in the US and was scheduled to depart the Philippines in March
1985.
 While in the US, Rosa was subsequently joined by her children. She singularly reared them: Alfred, from grade
school to university, while Robert, upon finishing high school, went back to Davao City to study medicine and
lived with Alfredo.
 Sometime in 1997, Rosa learned that a certain Emy Sia (Sia) was living at their conjugal home. When Rosa asked
Alfredo, the latter explained that Sia was a nurse working at the Regional Hospital in Tagum who was in a sorry
plight as she was allegedly being raped by Rosa's brother-in-law. To get her out of the situation, Alfredo allowed
Sia to live in their house and sleep in the maids' quarters. At that time, Rosa gave Alfredo the benefit of the
doubt.
 In October 2005, Rosa finally learned of Alfredo's extra-marital relationships. Robert, who was already living in
Davao City, called Rosa to complain of Alfredo's illicit affairs and shabby treatment of him.
 Robert executed an affidavit, corroborating his mother's story and confirming his father's illicit affairs.
 The househelpers, Melissa S. Diambangan and Liza S. Diambangan, likewise executed a joint affidavit in support
of Rosa's allegations.
 PURSUANT TO HER CHARGES OF VIOLATION OF RA 9262 AND GRAVE THREATS, Rosa averred that during the
course of their marriage, apart from the marital infidelity, Alfredo physically and verbally abused her and her
family. On one occasion after Rosa confirmed the affairs, Alfredo threatened their family, including other
members of their household that he will gun them down should he chance upon them in Tagum City. Lastly, on
22 March 2006, Alfredo purportedly dismissed househelper Liza Diambangan and threatened her.
 IN HIS COUNTER-AFFIDAVIT, Alfredo denied all the accusations against him and averred that the alleged
concubines, Sia and de Leon, were not impleaded along with Alfredo as party-respondents in the complaint in
violation of Article 344 of the Revised Penal Code.
 Specifically to dispose of the procedural issue of Rosa’s failure to implead Sia and de Leon as respondents, the
Ombudsman scheduled a clarificatory hearing where both Rosa and Alfredo were represented by their
respective counsels.
 On 24 June 2008, the Ombudsman issued a Joint Order impleading Sia and de Leon as party-respondents in the
complaint for Concubinage.
 Apparently still opposed to the Ombudsman's ruling to simply amend the complaint and implead therein
Alfredo's alleged mistresses, Alfredo filed his Comment to the 24 June 2008 Order with Motion to Dismiss
and/or Refer the charges to the Appropriate Provincial/City Prosecutor praying for dismissal of the complaint
for: (1) failure to implead the two mistresses in violation of Article 344 of the Revised Penal Code; and in the
alternative, (2) referral of the complaint to the Office of the City Prosecutor as provided in OMB-DOJ Circular
No. 95-001 SINCE THE CRIME OF CONCUBINAGE IS NOT COMMITTED IN RELATION TO HIS BEING A PUBLIC
OFFICER (hence, he argued, the Ombudsman has no jurisdiction).
 OMBUDSMAN: Denied the motion and ordered for the filing of information for Concubinage against Alfredo and
Sia. All other complaints filed by Rosa were dismissed.
 Alfredo then filed before the Supreme Court a petition for certiorari alleging grave abuse of discretion in the
Ombudsman's finding of probable cause to indict him and Sia for Concubinage. Alfredo's badges of grave abuse of
discretion are the following:

1. The Ombudsman railroaded the inclusion of Sia and de Leon as party-respondents in the complaint;
2. The Ombudsman did not refer the complaint to the Department of Justice, considering that the offense of
Concubinage is not committed in relation to his office as Chief of Hospital xxx

(Note: There are three other issues raised but they’re irrelevant to our topic. Also, of the two issues raised here,
the second issue is the one directly connected to Sec 2 of Rule 112. Nasa previous topics ‘yung first issue so baka
lang matanong ni ma’am)
ISSUE/S
I. Whether or not the Ombudsman's automatic inclusion, over Alfredo’s vehement objections of Sia and de
Leon as party-respondents, violates Article 344 of the Revised Penal Code and Section 5, Rule 110 of the
Rules of Court – NO
II. Whether or not the Ombudsman should have referred Rosa's complaint to the Department of Justice (DOJ),
since, as the petitioner argued, the crime of Concubinage is not committed in relation to his being a public
officer - NO
RATIO
ON THE FIRST ISSUE
 The Ombudsman’s amendment of the complaint does not violate Art 344 of the RPC and Sec 5 Rule 110 of the
RoC.
 Under Section 4(d) of Rule II the Rules of Procedure of the Ombudsman, if respondent desires any matter in the
complainant's affidavit to be clarified, the particularization thereof may be done at the time of the clarificatory
questioning in the manner provided in paragraph (f) of this section. Said paragraph f, on the other hand,
provides that if, after the filing of the requisite affidavits and their supporting evidences, there are facts
material to the case which the investigating officer may need to be clarified on, he may conduct a clarificatory
hearing during which the parties shall be afforded the opportunity to be present but without the right to
examine or cross-examine the witness being questioned.
 The Ombudsman merely facilitated the amendment of the complaint to cure the defect pointed out by Alfredo.
The Supreme Court agreed with the Ombudsman that it would be superfluous to dismiss the complaint when
amendment thereof is allowed by its Rules of Procedure and the Rules of Court.

ON THE SECOND ISSUE


 There is no need for the Ombudsman to refer Rosa’s complaint to the Office of the City Prosecutor.
 The Ombudsman's primary jurisdiction, albeit concurrent with the DOJ, to conduct preliminary investigation of
crimes involving public officers, without regard to its commission in relation to office, had long been settled in
Sen. Honasan II v. The Panel of Investigating Prosecutors of DOJ, and affirmed in subsequent cases:

[T]he Constitution, Section 15 of the Ombudsman Act of 1989 and Section 4 of the Sandiganbayan Law, as
amended, do not give to the Ombudsman exclusive jurisdiction to investigate offenses committed by public
officers or employees. The authority of the Ombudsman to investigate offenses involving public officers or
employees is concurrent with other government investigating agencies such as provincial, city and state
prosecutors. However, the Ombudsman, in the exercise of its primary jurisdiction over cases cognizable by the
Sandiganbayan, may take over, at any stage, from any investigating agency of the government, the
investigation of such cases.
 In Honasan II, although Senator Gregorio "Gringo" Honasan was a public officer who was charged with coup
d'etat for the occupation of Oakwood on 27 July 2003, the preliminary investigation therefor was conducted by
the DOJ. Honasan questioned the jurisdiction of the DOJ to do so, proferring that it was the Ombudsman which
had jurisdiction since the imputed acts were committed in relation to his public office. The Supreme Court
clarified that the DOJ and the Ombudsman have concurrent jurisdiction to investigate offenses involving public
officers or employees. Nonetheless, the Supreme Court pointed out that the Ombudsman, in the exercise of its
primary jurisdiction over cases cognizable by the Sandiganbayan, may take over, at any stage, from any
investigating agency of the government, the investigation of such cases
 Plainly, applying that ruling in this case, the Ombudsman has primary jurisdiction, albeit concurrent with the
DOJ, over Rosa's complaint, and after choosing to exercise such jurisdiction, need not defer to the dictates of a
respondent in a complaint, such as Alfredo. In other words, the Ombudsman may exercise jurisdiction to the
exclusion of the DOJ.
RULING
WHEREFORE, the petition is DISMISSED. The Resolutions of the Ombudsman dated 17 April 2009 and 11 October
2010 are AFFIRMED. SO ORDERED.
GUINTO