THIRD DIVISION

[G.R. No. 162808. April 22, 2008.]

FELICIANO GALVANTE , petitioner, vs. HON. ORLANDO C.

CASIMIRO, Deputy Ombudsman for the Military and Other
Law Enforcement Offices, BIENVENIDO C. BLANCAFLOR,
Director, DENNIS L. GARCIA, Graft Investigation and
Prosecution Officer, SPO4 RAMIL AVENIDO, PO1 EDDIE
DEGRAN, PO1 VALENTINO RUFANO, and PO1 FEDERICO
BALOLOT, respondents.

DECISION

AUSTRIA-MARTINEZ, J : p

Assailed herein by Petition for Certiorari and Mandamus under Rule 65

of the Rules of Court are the October 30, 2003 Resolution 1 of the Office of
the Deputy Ombudsman for the Military and Other Law Enforcement Offices
— Office of the Ombudsman (Ombudsman) which dismissed for lack of
probable cause the criminal complaint, docketed as OMB-P-C-02-0109-B,
filed by Feliciano Galvante 2 (petitioner) against SPO4 Benjamin Conde, PO1
Ramil Avenido, PO1 Eddie Degran, PO1 Valentino Rufano, and PO1 Federico
Balolot (private respondents) for arbitrary detention, illegal search and grave
threats; and the January 20, 2004 Ombudsman Order 3 which denied his
motion for reconsideration.
The facts are of record.
In the afternoon of May 14, 2001 at Sitio Cahi-an, Kapatungan, Trento,
Agusan del Sur, private respondents confiscated from petitioner one colt
pistol super .38 automatic with serial no. 67973, one short magazine, and
nine super .38 live ammunitions. 4 The confiscated materials were covered
by an expired Memorandum Receipt dated September 2, 1999. 5
Consequently, the Assistant Provincial Prosecutor filed against
petitioner an Information 6 for Illegal Possession of Firearms and
Ammunitions in Relation to Commission on Elections (COMELEC) Resolution
No. 3258, docketed as Criminal Case No. 5047, before the Regional Trial
Court (RTC), Prosperidad, Agusan del Sur.
Pending resolution of Criminal Case No. 5047, petitioner filed against
private respondents an administrative case, docketed as Administrative
Case No. IASOB-020007 for Grave Misconduct, before the Internal Affairs
Service (IAS), Region XIII, Department of the Interior and Local Government
(DILG); 7 and a criminal case, docketed as OMB-P-C-02-0109-B for Arbitrary
Detention, Illegal Search and Grave Threats, before the Ombudsman. 8
In the June 21, 2001 Affidavit-Complaint he filed in both cases,
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 petitioner narrated how, on May 14, 2001, private respondents aimed their
long firearms at him, arbitrarily searched his vehicle and put him in
detention, thus:
1. That sometime on May 14, 2001 I left my house at around
1:00 o'clock in the afternoon after having lunch for Sitio Cahi-
an, Brgy. Kapatungan, Trento, Agusan del Sur to meet retired
police Percival Plaza and inquire about the retirement
procedure for policemen;
2. That upon arrival at the house of retired police Percival Plaza,
together with Lorenzo Sanoria, Delfin Ramirez and Pedro
Ramas who asked for a ride from the highway in going to
Sitio Cahi-an, I immediately went down of the jeep but before
I could call Mr. Plaza, four policemen in uniform blocked my
way;
3. That the four policemen were [private respondents] PO1
Romil Avenido PNP, PO1 Valentino Rufano, PNP both member
of 142nd Company, Regional Mobile Group and PO1 Eddie
Degran PNP and PO1 Federico Balolot PNP members of 1403
Prov'l. Mobile Group, all of Bunawan Brook, Bunawan, Agusan
del Sur; who all pointed their long firearms ready to fire [at]
me, having heard the sound of the release of the safety lock;
4. That raising my arms, I heard [private respondent] PO1
Avenido saying, "ANG IMONG PUSIL, IHATAG" which means
"Give me your firearm", to which I answered, "WALA MAN
KO'Y PUSIL" translated as "I have no firearm", showing my
waistline when I raised my T-shirt;
5. That my other companions on the jeep also went down and
raised their arms and showed their waistline when the same
policemen and a person in civilian attire holding an armalite
also pointed their firearms to them to which Mr. Percival Plaza
who came down from his house told them not to harass me
as I am also a former police officer but they did not heed Mr.
Plaza's statements;
6. That while we were raising our arms [private respondent]
SPO4 Benjamin Conde, Jr. went near my owner type jeep and
conducted a search. To which I asked them if they have any
search warrant;
7. That after a while they saw my super .38 pistol under the
floormat of my jeep and asked me of the MR of the firearm
but due to fear that their long arms were still pointed to us, I
searched my wallet and gave the asked [sic] document;
8 That immediately the policemen left me and my companions
without saying anything bringing with them the firearm;
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 9. That at about 2:30 p.m., I left Mr. Percival's house and went
to Trento Police Station where I saw a person in civilian attire
with a revolver tucked on his waist, to which I asked the
police officers including those who searched my jeep to
apprehend him also;
10. That nobody among the policemen at the station made a
move to apprehend the armed civilian person so I went to the
office of Police Chief Rocacorba who immediately called the
armed civilian to his office and when already inside his office,
the disarming was done;

11. That after the disarming of the civilian I was put to jail with
the said person by Police Chief Rocacorba and was released
only at 4:00 o'clock in the afternoon of May 16, 2001 after
posting a bailbond;
12. That I caused the execution of this document for the
purpose of filing cases of Illegal Search, Grave Misconduct
and Abuse of Authority against SPO4 Benjamin Conde, Jr., of
Trento Police Station; PO1 Ramil Avenido, PO1 Velantino
Rufano, PO1 Federico Balolot and PO1 Eddie Degran. 9
Petitioner also submitted the Joint Affidavit 10 of his witnesses, Lorenzo
Sanoria and Percival Plaza.
Private respondent Conde filed a Counter-Affidavit dated March 20,
2002, where he interposed the following defenses:
First, he had nothing to do with the detention of petitioner as it was
Chief of Police/Officer-in-Charge Police Inspector Dioscoro Mehos Rocacorba
who ordered the detention. Petitioner himself admitted this fact in his own
Complaint-Affidavit; 11 and
Second, he denies searching petitioner's vehicle, 12 but admits that
even though he was not armed with a warrant, he searched the person of
petitioner as the latter, in plain view, was committing a violation of
COMELEC Resolutions No. 3258 and No. 3328 by carrying a firearm in his
person.
Private respondents Avenido, Degran, Rufano and Balolot filed their
Joint-Affidavit dated March 25, 2002, which contradicts the statements of
private respondent Conde, viz.:

1. that we executed a joint counter-affidavit dated August 28,

2001 where we stated among other things, that "we saw
Feleciano "Nani" Galvante armed with a handgun/pistol
tucked on his waist";

2. that this statement is not accurate because the truth of the

matter is that the said handgun was taken by SPO4
BENJAMIN CONDE, JR., who was acting as our team leader
during the May 14, 2001 Elections, from the jeep of Mr.
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 Galvante after searching the same; and

3. that we noticed the aforementioned discrepancy in our

affidavit dated August 28, 2001 after we have already affixed
our signatures thereon. 13
Consequently, petitioner filed an Affidavit of Desistance dated March
25, 2002 with both the IAS and Ombudsman, absolving private respondents
Avenido, Degran, Rufano and Balolot, but maintaining that private
respondent Conde alone be prosecuted in both administrative and criminal
cases. 14
On July 17, 2002, the IAS issued a Decision in Administrative Case No.
IASOB-020007, finding all private respondents guilty of grave misconduct
but penalized them with suspension only. The IAS noted however that
private respondents were merely being "[enthusiastic] in the conduct of the
arrest in line of duty." 15
Meanwhile, in Criminal Case No. 5047, petitioner filed with the RTC a
Motion for Preliminary Investigation and to Hold in Abeyance the Issuance of
or Recall the Warrant of Arrest. 16 The RTC granted the same in an Order 17
dated August 17, 2001. Upon reinvestigation, Prosecutor II Eliseo Diaz, Jr.
filed a "Reinvestigation with Motion to Dismiss" dated November 22, 2001,
recommending the dismissal of Criminal Case No. 5047 on the ground that
"the action of the policemen who conducted the warrantless search in spite
of the absence of any circumstances justifying the same intruded into the
privacy of the accused and the security of his property." 18 Officer-in-Charge
Prosecutor II Victoriano Pag-ong approved said recommendation. 19
The RTC granted the prosecution's motion to dismiss in an Order 20
dated January 16, 2003.
Apparently unaware of what transpired in Criminal Case No. 5047,
Ombudsman Investigation & Prosecution Officer Dennis L. Garcia issued in
OMB-P-C-02-0109-B, the October 30, 2003 Resolution, to wit:
After a careful evaluation, the undersigned prosecutor finds no
probable cause for any of the offenses charged against above-named
respondents.

The allegations of the complainant failed to establish the factual

basis of the complaint, it appearing from the records that the
incident stemmed from a valid warrantless arrest. The
subsequent execution of an affidavit of desistance by the complainant
rendered the complaint even more uncertain and subject to doubt,
especially so since it merely exculpated some but not all of the
respondents. These circumstances, coupled with the presumption of
regularity in the performance of duty, negates any criminal liability on
the part of the respondents.

WHEREFORE, premises considered, it is hereby recommended

that the above-captioned case be dismissed for lack of probable cause.
21 (Emphasis supplied)

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 Upon the recommendation of Director Bienvenido C. Blancaflor, Deputy
Ombudsman for the Military Orlando C. Casimiro (Deputy Ombudsman)
approved the October 30, 2003 Resolution. 22
In his Motion for Reconsideration, 23 petitioner called the attention of
the Ombudsman to the earlier IAS Decision, the Reinvestigation with Motion
to Dismiss of Prosecutor II Eliseo Diaz, Jr. and the RTC Order, all of which
declared the warrantless search conducted by private respondents illegal, 24
which are contradicted by the October 30, 2003 Ombudsman Resolution
declaring the warrantless search legal.
The Ombudsman denied petitioner's motion for reconsideration on the
ground that the latter offered "no new evidence or errors of law which would
warrant the reversal or modification" 25 of its October 30, 2003 Resolution.
Petitioner filed the present petition, attributing to Deputy Ombudsman
Casimiro, Director Blancaflor and Prosecutor Garcia (public respondents) the
following acts of grave abuse of discretion:
I. Public respondents acted without or in excess of their
jurisdiction and/or with grave abuse of discretion amounting to lack or
excess of jurisdiction when, in their Resolution dated October 30, 2003,
public respondents found that the incident upon which petitioner's
criminal complaint was based stemmed from a valid warrantless arrest
and dismissed petitioner's complaint despite the fact that:

A. Petitioner has clearly shown that the search

conducted by the private respondents was made without a valid
warrant, nor does it fall under any of the instances of valid
warrantless searches.

B. Notwithstanding the absence of a valid warrant,

petitioner was arrested and detained by the private respondents.

II. Public respondents acted without or in excess of their

jurisdiction and/or with grave abuse of discretion amounting to lack or
excess of jurisdiction when, in their Order dated January 20, 2004,
public respondents denied the petitioner's motion for reconsideration
in a capricious, whimsical, despotic and arbitrary manner. 26

In its Memorandum, 27 the Office of the Solicitor General argued that

public respondents acted within the bounds of their discretion in dismissing
OMB-P-C-02-0109-B given that private respondents committed no crime in
searching petitioner and confiscating his firearm as the former were merely
performing their duty of enforcing the law against illegal possession of
firearms and the COMELEC ban against the carrying of firearms outside of
one's residence.
Private respondent Conde filed a Comment 28 and a Memorandum for
himself. 29 Private respondents Avenido, Degran, Rufano and Balolot filed
their separate Letter-Comment dated June 25, 2004. 30
The petition lacks merit.
The Constitution vests in the Ombudsman the power to determine
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 whether there exists reasonable ground to believe that a crime has been
committed and that the accused is probably guilty thereof and, thereafter, to
file the corresponding information with the appropriate courts. 31 The Court
respects the relative autonomy of the Ombudsman to investigate and
prosecute, and refrains from interfering when the latter exercises such
powers either directly or through the Deputy Ombudsman, 32 except when
the same is shown to be tainted with grave abuse of discretion amounting to
lack or excess of jurisdiction. 33
Grave abuse of discretion is an evasion of a positive duty or a virtual
refusal to perform a duty enjoined by law or to act in contemplation of law as
when judgment rendered is not based on law and evidence but on caprice,
whim and despotism. 34 This does not obtain in the present case.
It is noted that the criminal complaint which petitioner filed with the
Ombudsman charges private respondents with warrantless search, arbitrary
detention, and grave threats.
The complaint for warrantless search charges no criminal offense.
The conduct of a warrantless search is not a criminal act for it is not
penalized under the Revised Penal Code (RPC) or any other special law.
What the RPC punishes are only two forms of searches:
Art. 129. Search warrants maliciously obtained and abuse in
the service of those legally obtained. — In addition to the liability
attaching to the offender for the commission of any other offense, the
penalty of arresto mayor in its maximum period to prision correccional
in its minimum period and a fine not exceeding P1,000.00 pesos shall
be imposed upon any public officer or employee who shall procure a
search warrant without just cause, or, having legally procured the
same, shall exceed his authority or use unnecessary severity in
executing the same.
Art. 130. Searching domicile without witnesses. — The
penalty of arresto mayor in its medium and maximum periods shall be
imposed upon a public officer or employee who, in cases where a
search is proper, shall search the domicile, papers or other belongings
of any person, in the absence of the latter, any member of his family,
or in their default, without the presence of two witnesses residing in
the same locality.

Petitioner did not allege any of the elements of the foregoing felonies
in his Affidavit-Complaint; rather, he accused private respondents of
conducting a search on his vehicle without being armed with a valid warrant.
This situation, while lamentable, is not covered by Articles 129 and 130 of
the RPC.
The remedy of petitioner against the warrantless search conducted on
his vehicle is civil, 35 under Article 32, in relation to Article 2219 36 (6) and
(10) of the Civil Code, which provides:
Art. 32. Any public officer or employee, or any private
individual, who directly or indirectly obstructs, defeats, violates or in
any manner impedes or impairs any of the following rights and liberties
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 of another person shall be liable to the latter for damages:

xxx xxx xxx

(9) The right to be secure in one's person, house, papers, and
effects against unreasonable searches and seizures;
xxx xxx xxx
The indemnity shall include moral damages. Exemplary damages
may also be adjudicated.

and/or disciplinary and administrative, under Section 41 of Republic Act No.

6975. 37
To avail of such remedies, petitioner may file against private
respondents a complaint for damages with the regular courts 38 or an
administrative case with the PNP/DILG, 39 as petitioner did in Administrative
Case No. IASOB-020007, and not a criminal action with the Ombudsman.
Public respondents' dismissal of the criminal complaint for illegal
search which petitioner filed with the Ombudsman against private
respondents was therefore proper, although the reasons public respondents
cited for dismissing the complaint are rather off the mark because they
relied solely on the finding that the warrantless search conducted by private
respondents was valid and that the Affidavit of Desistance which petitioner
executed cast doubt on the veracity of his complaint. 40 Public respondents
completely overlooked the fact that the criminal complaint was not
cognizable by the Ombudsman as illegal search is not a criminal offense.
Nevertheless, the result achieved is the same: the dismissal of a groundless
criminal complaint for illegal search which is not an offense under the RPC.
Thus, the Court need not resolve the issue of whether or not public
respondents erred in their finding on the validity of the search for that issue
is completely hypothetical under the circumstance.
The criminal complaint for arbitrary detention was likewise properly
dismissed by public respondents. To sustain a criminal charge for arbitrary
detention, it must be shown that (a) the offender is a public officer or
employee, (b) the offender detained the complainant, and (c) the detention
is without legal grounds. 41 The second element was not alleged by
petitioner in his Affidavit-Complaint. As pointed out by private respondent
Conde in his Comment 42 and Memorandum, 43 petitioner himself identified
in his Affidavit-Complaint that it was Police Chief Rocacorba who caused his
detention. Nowhere in said affidavit did petitioner allege that private
respondents effected his detention, or were in any other way involved in it.
44 There was, therefore, no factual or legal basis to sustain the criminal

charge for arbitrary detention against private respondents.

Finally, on the criminal complaint for grave threats, the Solicitor
General aptly pointed out that the same is based merely on petitioner's bare
allegation that private respondents aimed their firearms at him. 45 Such bare
allegation stands no chance against the well-entrenched rule applicable in
this case, that public officers enjoy a presumption of regularity in the
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 performance of their official function. 46 The IAS itself observed that private
respondents may have been carried away by their "enthusiasm in the
conduct of the arrest in line of duty". 47 Petitioner expressed the same view
when, in his Affidavit of Desistance, he accepted that private respondents
may have been merely following orders when they pointed their long
firearms at him.
All said, public respondents did not act with grave abuse of discretion
in dismissing the criminal complaint against private respondents.
WHEREFORE, the petition is DENIED.
No costs.
SO ORDERED.
Ynares-Santiago, Chico-Nazario, Nachura and Reyes, JJ., concur.

Footnotes
1. Issued by Ombudsman Investigation and Prosecution Officer Dennis L.
Garcia and approved by Deputy Ombudsman for the Military Orlando C.
Casimiro; rollo, p. 25.

2. A retired police officer accused in Criminal Case No. 5047 of illegal

possession of firearms.
3. Rollo , p. 27.
4. Exhibit "R", id. at 186. SIaHDA

5. Exhibit "I", id. at 185.

6. Id. at 107.
7. Id. at 30.
8. Id. at 25.
9. Records, pp. 2-3.
10. Id. at 6. 2005jurcd

11. March 20, 2002 Counter-Affidavit, p. 1; records, unnumbered page.

12. Id. at 2.
13. Rollo , p. 28.
14. Id. at 71.
15. Id. at 30.
16. Records, unnumbered page.
17. Id., unnumbered page.
18. Records, unnumbered page.
19. Id.
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 20. Rollo , p. 33. cHDAIS

21. Id. at 26.

22. Id.
23. Id. at 34.
24. Id. at 37-38.
25. Rollo , p. 27.
26. Id. at 13.
27. Id. at 137.
28. Rollo , p. 61.
29. Id. at 176.
30. Id. at 70.
31. Section 13, Article XI (Accountability of Public Officers): 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.
32. Salma v. Miro , G.R. No. 168362, January 25, 2007, 512 SCRA 724, 737;
Brito v. Office of the Deputy Ombudsman for Luzon, G.R. Nos. 167335,
167337 and 173152, July 10, 2007, 527 SCRA 215, 231.
33. Esquivel v. Ombudsman, 437 Phil. 702, 715 (2002); Salma v. Miro , supra
note 32, at 738. STIcaE

34. Baviera v. Zoleta, G.R. No. 169098, October 12, 2006, 504 SCRA 281, 303;
Soria v. Desierto, G.R. Nos. 153524-25, January 31, 2005, 450 SCRA 339,
345.

35. Silahis International Hotel, Inc. v. Soluta, G.R. No. 163087, February 20,
2006, 482 SCRA 660, 672. IcTEaC

36. Art. 2219. Moral damages may be recovered in the following and analogous
cases: . . . (6) Illegal search; . . .

37. Department of the Interior and Local Government Act of 1990.

38. Lui v. Matillano, G.R. No. 141176, May 27, 2004, 429 SCRA 449, 475.
39. Cayago v. Lina, G.R. No. 149539, January 19, 2005, 449 SCRA 29, 42.
40. Rollo , p. 26.
41. Astorga v. People of the Philippines, 459 Phil. 140, 151 (2003).
42. Rollo , p. 62.
43. Id. at 180-181.
44. Affidavit-Complaint, p. 2; records, unnumbered page.

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 45. Rollo , p. 146. SDATEc

46. Salma v. Miro , supra note 32, at 735, citing Rules of Court, Rule 131, Sec.
3(m); Ombudsman v. Court of Appeals, G.R. No. 147762, October 12, 2006,
504 SCRA 321.

47. Rollo , p. 30.

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