Fact: The report of Resident Auditor Alexander A. Tan implicated petitioner as persons involved in the irregular withdrawal of P2.2 million of PNB funds. The Office of the Deputy Ombudsman for the Visayas ordered petitioner to file their respective counter-affidavits. Graft Investigation Officer Edgardo G. Canton recommended the filing of the proper information against petitioner and was thereafter referred for review to the Office of the Special Prosecutor who affirmed the resolution of Graft Investigation Officer, Deputy Special Prosecutor recommended the approval of the memorandum of Special Prosecution Officer.Aniano A. Desierto, then the Special Prosecutor, concurred in the approval. Ombudsman concurred thereto. Subsequently, on 24 November 1994, an Information for violation of Section 3(e) of Rep. Act No. 3019, as amended, was filed before the Sandiganbayanpetitioner filed with the Sandiganbayan an Urgent Motion for a Period of Time to File Motion for Reinvestigation.The Sandiganbayan granted the motion for reinvestigation. Petitioner filed his motion for reinvestigation in the Office of the Special Prosecutor. The Sandiganbayan ordered the Office of the Special Prosecutor to conduct the reinvestigation. The reinvestigation was assigned to Special Prosecution Officer. Convinced that no probable cause existed to indict petitioner Special Prosecutor Micael recommended the dismissal of the case. The recommendation was approved by Deputy Special Prosecutor Kallos and concurred in by Special Prosecutor Tamayo. Ombudsman Aniano A. Desierto, who earlier participated in the initial preliminary investigation as Special Prosecutor, disapproved the recommendation for the dismissal of the case with the marginal note “assign the case to another prosecutor to prosecute the case aggressively.” Special Prosecutor Micael filed a Manifestation, to which was attached a copy of his memorandum, informing the Sandiganbayan of the disapproval by Ombudsman Desierto of his recommendation to dismiss the case. On 10 February 2000, petitioner filed a Motion for Reconsideration of the disapproval by Ombudsman Desierto of the recommendation of Micael. Apparently, petitioner’s motion for reconsideration was not resolved on the merits because on 27 June 2000, Special Prosecution Officer III Joselito R. Ferrer filed a Motion to Set the Case for Arraignment alleging therein that the prosecution did not give due course to the motion for reconsideration on the ground that it was the second motion which is prohibited under the Ombudsman Act of 1989. He added that the results of the reinvestigation were already submitted to the respondent court before receiving the motion for reconsideration.Petitioner manifested before the Sandiganbayan the Office of the Special Prosecutor’s failure to resolve his motion for reconsideration. Thus, in a resolution13 dated 24 March 2003, the respondent court directed the Office of the Ombudsman to resolve the said motion.In a memorandum14 dated 09 June 2003, Special Prosecutor Joselito R. Ferrer recommended the denial of the motion for reconsideration filed by petitioner. Deputy Special Prosecutor Robert E. Kallos changed his previous position and recommended that the memorandum for the dismissal of the motion for reconsideration be approved, with Special Prosecutor Dennis M. Villa-Ignacio concurring in the denial. Ombudsman Simeon V. Marcelo, who succeeded Ombudsman Desierto when he retired, approved Joselito Ferrer’s memorandum recommending the denial of the motion for reconsideration. Petitioner thus filed the instant petition with prayer for the issuance of a temporary restraining order to enjoin the Sandiganbayan from taking further action in Criminal Case. The First Division of this Court issued the temporary restraining order prayed for.The instant petition was transferred to the Second Division of this Court.
Issue: where Ombudsman Desierto committed grave abuse of discretion?
Held: Yes, attributes partiality on the part of Ombudsman Desierto for having participated in the reinvestigation of the instant case despite the fact that he earlier participated in the initial preliminary investigation of the same when he was a Special Prosecutor by concurring in the recommendation for the filing of the information before the Sandiganbayan. Having participated in the initial preliminary investigation of the instant case and having recommended the filing of appropriate information, it behooved Ombudsman Desierto to recuse himself from participating in the review of the same during the reinvestigation. He should have delegated the review to his Deputies