Under subsection (1) of section 204 Crpc, if in the opinion of the Magistrate taking cognizance of the offence, there was sufficient grounds for proceeding, the Magistrate has the power to issue summons or warrants for attendence of the accused. In warrant trial case accused can claim discharge under section 245 ,Crpc, . The section provides that if upon taking all the evidence for the Prosecution, the Magistrate considers that such evidence would not warrant conviction and no case against the accused was made out, the Magistrate shall discharge him.

The accused can also be discharged even at a privious stage, if the charge against him appears to be ground less. Under section 249 ,Crpc,the accused persons get discharged, if on the date fixed for hearing of the case, complainant was absent and the offence may be lawfully compounded or was not a cognizable.

Even in summons trial cases, after the accused appears before the Court, in view of the observation made by the Supreme Court in K.M Mathews vs State of Kerala, the accused was entitled to. move an application for revocation of cognizance and for dropping the proceedings against him.

In that situation also the accused shall also deemed to have been discharged. The persons against whom no process has been issued under section 204, Crpc, can't be said to have been discharged. Admittedly in this case, process was not issued . The complaint was dismissed summarily at the pre summoning stage under section 203,therefore, accused persons can not be said to have been discharged, so as to attract, proviso to Section 398 Crpc.

Now coming to subsection (2) of Section 401 ,Crpc it envisage s that no order to the prejudice to the accused or other persons,shall be made out without giving him any opportunity of being heard in Defence.

In this case , while presummoning enquiry was in progress, the complaint was dismissed in default. As accused persons arrayed in the complaint were not summoned, therefore, the question of hearing them in defence does not arise. So far as the expression other persons mentioned in the sub Section (2) of Section 401, Crpc was concerned, it does not contemplated that the person should be given an opportunity of being heard if he is likely to be affected by the order in Revision, but this subsection has to be made in consonance with the proviso to Section 398 ,Crpc, . It can not be read in isolation.

Co joint reading of proviso to Section 398,Crpc and subsection (2) of section 401 makes it abundantly clear that in the case where the complaint is dismissed in default for non apoearence of the complainant during the enquiry at the pre summoning stage, notice in revision against such order to the accused person's, is not mandatory and that notice would be required only ,when the accused, persons has been discharged after summing.