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G.R. No. 153176 March 29, 2004

PEOPLE OF THE PHILIPPINES vs. HON. ZEIDA AURORA B. GARFIN

FACTS:

On June 22, 2001, private respondent was charged with violation of the "Social Security

Act,". That on or about February 1990 and up to the present, in the City of Naga, Philippines,

within the functional jurisdiction of SSS Naga Branch and the territorial jurisdiction of this

Honorable Court, the above named accused, while being the proprietor of Saballegue

Printing Press, did then and there willfully, unlawfully, and criminally refuse and fail and

continuously refuse and fail to remit the premiums due for his employee to the SSS in the

amount of (P6,533.00), representing SSS and EC premiums for the period from January 1990

to December 1999 (n.i.), and the 3% penalty per month for late remittance in the amount of

ELEVEN THOUSAND ONE HUNDRED FORTY-THREE PESOS and 28/100 (P11,143.28)

computed as of 15 March 2000, despite lawful demands by letter in violation of the above-

cited provisions of the law, to the damage and

prejudice of the SSS and the public in general.

The case was raffled to Branch 19 of the Regional Trial Court of Naga City.

Accused Serafin Saballegue pleaded not guilty to the charge and the case was set for pre-trial.5 Three days thereafter, the accused filed a motion to dismiss6 on the ground that the

information was filed without the prior written authority or approval of the city prosecutor

as required under Section 4, Rule 112 of the Revised Rules of Court.

After considering the arguments raised, the trial court granted the motion to dismiss in its

first questioned Order dated February 26, 2002, to wit: After

considering the respective arguments raised by the parties, the Court believes and so

resolves that the Information has not been filed in accordance with Section 4, par. 3 of Rule

112 of the 2000 Rules on Criminal ProcedureRule 112, Section 4 x x x x x x No complaint or

information may be filed or dismissed by an investigating prosecutor without the prior

written authority or approval of the provincial or city prosecutor or chief state prosecutor or

the Ombudsman or his deputy. Expresio unius est exclusio alterius.

The Information will readily show that it has not complied with this rule as it

has not been approved by the City Prosecutor.

This Court holds that the defendants plea to the Information is not a waiver to file a motion

to dismiss or to quash on the ground of lack of jurisdiction. By express provision of the rules

and by a long line of decisions, questions of

want of jurisdiction may be raised at any stage of the proceedings.

ISSUE: Whether the approval of the city or provincial prosecutor is no longer

required.

HELD:

No. Under Presidential Decree No. 1275. The Regional State Prosecutor is clearly vested only

with the power of administrative supervision. As administrative supervisor, he has no power

to direct the city and provincial prosecutors to inhibit from handling certain cases. At most,

he can request for their inhibition. Hence, the said directive of the regional state prosecutor

to the city and provincial prosecutors is questionable to say the least.

Petitioner argues that the word "may" is permissive. Hence, there are cases when prior

written approval is not required, and this is one such instance. This is too simplistic an

interpretation. Whether the word "may" is mandatory or directory depends on the context

of its use. We agree with the OSG that the use of the permissive word "may" should be read

together with the other provisions in the same section of the Rule. The paragraph

immediately preceding the quoted provision shows that the word "may" is mandatory. It

states: Sec. 4, Rule 112. x x x Within five (5) days from his resolution, he (investigating

prosecutor) shall forward the record of the case to the provincial or city prosecutor or chief

state prosecutor, or to the Ombudsman or his deputy in cases of offenses cognizable by the

Sandiganbayan in the exercise of its original jurisdiction. They shall act on the resolution

within ten (10) days from their receipt thereof and shall immediately inform the parties of

such action. (emphasis supplied)

In sum, we hold that, in the absence of a directive from the Secretary of

Justice designating State Prosecutor Tolentino as Special Prosecutor for SSS

cases or a prior written approval of the information by the provincial or city

prosecutor, the information in Criminal Case No. RTC 2001-0597 was filed by an officer

without authority to file the same. As this infirmity in the information constitutes a

jurisdictional defect that cannot be cured, the respondent judge did not err in dismissing the

case for lack of jurisdiction. WHEREFORE, premises considered, the petition is DENIED.