Prosecution Of Offenses: Negligence And Tolerance

ART. 208

Acts punishable:
1. By maliciously refraining from instituting prosecution against violators of the law
2. By maliciously tolerating the commission of offenses

Dereliction of duty in the prosecution of offenses:

1. That the offender is a public officer or officer of the law who has a duty to cause the prosecution of, or to prosecute offenses;
2. That there is dereliction of the duties of his office, that is, knowing the commission of the crime, he does not cause
(a) the prosecution of the criminal (People vs. Rosales, G.R. no. 42648) or
(b) knowing that a crime is about to be committed he tolerates its commission; (If gift/promise is a consideration for his conduct, crime is direct bribery.) and
3. That the offender acts with malice and deliberate intent to favor the violator of the law.


Prevaricacion means the negligence and tolerance in the prosecution of an offense.

There must be a duty on the part of the public officer to prosecute or move for the prosecution of the offender. However, a fiscal is under no compulsion to file an information based upon a complaint if he is convinced that the evidence before him is insufficient to warrant filing an action in court.

The crime must be proved first before an officer can be convicted of dereliction of duty.

“Maliciously” signifies deliberate evil intent; a dereliction of duty caused by poor judgment or honest mistake is not punishable.

A public officer who harbors, conceals, or assists in the escape of an offender, when it is his duty to prosecute him, is liable as principal in the crime of dereliction of duty in the prosecution of offenses. He is not an accessory.

This article is not applicable to revenue officers.

This crime can only be committed by a public officer whose official duty is to prosecute offenders.

While in Article 208, dereliction of duty refers only to prosecuting officers, the term PREVARICACION applies to public officers in general who are remiss or who are maliciously refraining from exercising the duties of his office.

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