AGBAY v THE HONORABLE DEPUTY
OMBUDSMAN FOR THE MILITARY,
SPO4 NATIVIDAD & SPO2 SOLOMON
GR No. 134503 | July 2, 1999
GAYARES
PETITIONER:
Jasper Agbay
RESPONDENTS:
The Honorable Deputy Ombudsman for the
Military, SPO4 Nemesio Natividad, Jr., and
SPO2 Eleazar Solomon
DOCTRINE:
Arbitrary Detention and Expulsion – Delay in
the delivery of detained persons to the proper
judicial activities (Art. 125)
FACTS:
 Petition for certiorari seeks to nullify
the Resolution of the Deputy
Ombudsman for the Military, which
recommended the dismissal of the
criminal complaint filed by petitioner
against respondent for violation of Art.
125 of the RPC, which is delay in the
delivery of detained persons.
 Agbay, together with a certain Jugalbot,
was arrested and detained at the Liloan
Police Station, Cebu for alleged
violation of RA 7610 or the Special
Protection of Children against Child
Abuse, Exploitation and Discrimination
Act.
 The following day, a complaint for
violation of the said RA was filed
against the two by one Gicaraya in
behalf of her daughter Gayle.
 The complaint states that Agbay and
Jugalbot sexually abused Gayle by
fingering her vagina while the latter
blocked the sight of her mother during a
tricycle ride. Jugalbot was released
while Agbay is detained in Liloan
Police Station Jail.
 September 10: Petitioner’s counsel
wrote to the Chief of Police, demanding
the immediate release of petitioner
considering that the latter failed to
deliver the detained to the proper
judicial authority within 36 hours from
September 7. Respondent did not act on
this letter and detained petitioner.
 September 12: The Municipal Circuit
Trial Court (MCTC) issued an order
committing petitioner to the jail warden
of Cebu City.
 September 17: Petitioner was ordered
released by the said court after posting
bond.
 September 26: Petitioner filed a
complaint for delay in the delivery of
detained persons against respondents.
 Regarding the complaint for violation of
RA 7610, petitioner obtained the
resolution of MCTC, which found
probable cause for the crime and
recommended that information be filed.
ISSUE:
W/N the authorities, specifically the respondents,
committed delay in the delivery of the detained
Agbay to the proper judicial authorities?
HELD:
NO – Filing of the complaint with the MCTC
interrupted the period prescribed in Art. 125,
hence, delay was not committed by the
respondents in the case at bar.
RATIO:
Art. 125 – Delay in the delivery of detained
persons to the proper judicial authorities:
 12 hours for crimes punishable by light
penalties;
 18 hours for crimes punishable by
correctional penalties;
 36 hours for crimes punishable by
afflictive or capital penalties.
In the case at bar, Agbay violated RA 7610, Sec.
5(b). This crime carries a penalty of reclusion
temporal in its medium period to reclusion
perpetua; hence, a criminal complaint or
information should be filed with the proper
judicial authorities within 36 hours.
Petitioner contents that the act or complainant
filing the complaint before the MCTC was for
purposes of preliminary investigation since it has
no jurisdiction to try the offense, thus, it did not
interrupt the period prescribed in Art. 125. As
such, the arresting officers were now guilty of
violating the law due to the expiration of the 36-
hour time limit. Additionally, the MCTC was
acting contrary to law since there was no basis
for continued detention.
The Court moved to address the issue of
answering whether the filing of the complaint
with the MTC constitutes delivery to a proper
judicial authority.

Art. 125 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. It punishes public
officials who shall detain any person for some
legal ground and shall fail to deliver such person
to proper judicial authorities within the
prescribed periods. Continued detention becomes
illegal when the period expires.

Petitioner argues that when a MTC judge

conducts a preliminary investigation, he is not
acting as a judge but as fiscal. Citing different
jurisprudence, however, the Court denies his
argument since his reliance on the cases he cited
is misplaced.

The Court explains 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 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.

A MTC judge, even in the performance of

conducting preliminary investigations, retains the
power to issue an order of release or
commitment. The intent behind Art. 125 is
satisfied upon filing of the complaint with the
MTC. Petitioner acknowledged this when he
applied for bail. Art. 125 has been duly served.
The period prescribed in Art. 125 has been
interrupted after the filing of the complaint in the
MTC.