Criminal procedure

INSTITUTION OF CRIMINAL PROCEEDINGS
Generally there are two ways in which criminal proceedings are instituted in subordinate Court.
1.  Laying a complainant in a court in terms of section 128(1) of the Criminal Procedure Act.
2.  By bringing the accused person before magistrates in terms as per section 128(1) of the Criminal Procedure Act.

Meaning of complaint.
Section 2 of the Criminal Procedure Act defines "complaint" to means an allegation that some person known or unknown, has committed an offence. In other words entails a statement of facts surrounding allegation that a crime has been committed.

WHO MAY MAKE A COMPLAINT?.
A complaint may be made by any person provided that such person has reasonable and probable cause to believe that an offence has been committed. This is provided for under section 128(2) of the Criminal Procedure Act. In terms of section 128(2) of the Criminal Procedure Act the complaint must be made before the court of competent jurisdiction if a complaint is made before a magistrate who is not competent to take recognizance of the offence then the magistrate may return the complaint  for the presentment to a or such magistrate may transfer the case in the court of competent jurisdiction  as provided under section 189 of the Criminal Procedure Act.

Practically all complaint are to be in writing by a magistrate receiving the same. This is provided under section 128(4) of the Criminal Procedure Act. Once a complaint has been made a formal charge must be or cause to be drawn by the magistrate unless the complaint is rejected as provided under section 129 of the Criminal Procedure Act or the police who preferred the complaint had already drawn it and presented it with a complaint as provided under section 128(5) of the Criminal Procedure Act.

2. By bringing the accused person before magistrates as per section 128(1) of the Criminal Procedure Act.
This way normally follows the arrest of a person who has committed an arrestable offence that is to say an offence which the law allows arrest without warrant for example section 2, 14, 16, 17, and 18 of the  Criminal Procedure Act.

Under section 128(6) of the Criminal Procedure Act  an accused person who has been arrested without a warrant is brought before a magistrate, a formal charge containing a statement of the offence with which the accused is charged, shall be signed and presented by the police officer preferring the charge.

Immediately after that have been preferred  the accused person must be cautioned  as provided under section 131 of the Criminal Procedure Act, the court has got powers to reject the a complaint or a charge which  doesn’t disclose any offence as per section 129 of the Criminal Procedure Act.

However such rejection and the grounds must be recorded. If the complaint or a charge hasn’t rejected then the case should commence in terms of section 130 of the Criminal Procedure Act. A magistrate upon receiving a complaint and signed the charge may issue either summons or a warrant  to compel the attendance of the accused person before the court. However the point to note is that a warrant of arrest may be issued only when a complaint is made on oath. In Primary Court the 3rd schedules to the Magistrates Court Act is applicable in criminal matters.
Criminal proceeding in Primary Court magistrate who shall examine the same and if satisfied that there are sufficient grounds for so doing issue a summons or warrant of arrest compelling the appearance of the accused person before the court. This is provided under section 8(1) of the Primary Court Criminal Procedure Code where a magistrate considers a complaint in terms of it.

CHARGE
A charge means a  formal complaint which is writing  alleging that a particular person has committed an offence with the view of putting a criminal process or machinery in motion.
The  charge must be duly  signed by  the complainant or public prosecutor  or other authorized officer.

PURPOSES OF THE CHARGE
To inform the accused and the court with sufficient clarity the allegations against the accused.
The accused is entitled to know his allegations against him so as to avoid taking him by surprise. This enable him to prepare his defence.
It enable the court to know whether or not it has jurisdiction to inquire into or try into the case.
It enables the court to control proceedings by confining the evidence and arguments to what is  alleged in the charge and what is distributed.