JUDGMENT N.K. Balakrishnan, J. 1. This matter has come up for consideration before us on a reference made by a learned Single Judge of this Court (Justice V. Ramkumar). The learned Single Judge doubted the correctness of the decision reported in Nassar v. State of Kerala (2009 (3) KLT 419). 2. The relevant portion in Nassar’s case is extracted hereunder. “What is provided under sub-s.(5) of S.437 is to direct such person be arrested and to commit him to custody and not a direction to the Investigating Officer to arrest the person for the purpose of investigation.” In the reference order the learned Single Judge has also stated that the very same learned Judge (who decided Nassar’s case), in a subsequent unreported decision dated 30.10.2009 in Crl.M.C.3264 of 2009 has reiterated the position as stated hereunder. “Question is whether Annexure-I order passed by the learned Magistrate canceling the bail is legal. The position is settled by this Court in Nassar v. State of Kerala (2009 (3) KLT 419) holding that bail can be cancelled under Section 439 either by the Sessions Court or the High Court and not by the Magistrate. Chief Judicial Magistrate therefore could not have cancelled the bail. Annexure-I order can only be quashed. Petition is allowed. Annexure-I order is quashed. This order will not affect the right of the investigating officer to approach the appropriate Court to cancel the bail in accordance with law.” So much so, even though the learned Single Judge did not state in so many words in Nassar’s case that the Magistrate who granted bail u/s 437(1) Cr.P.C. has no power to cancel the bail it is discernible from the order the relevant portion of which has been extracted that the Magistrate has no power to order cancellation of bail. 3. The point that arises for consideration is whether the Magistrate who granted bail to an accused u/s 437(1) Cr.P.C. has power to cancel it u/s 437(5) Cr.P.C. The learned Single Judge in Nassar’s case held that what is provided under S.437(5) is only to direct such persons be arrested and commit him custody. 4. The learned Single Judge has followed the decision reported in Thulaseedharan Nair v. state of Kerala (ILR 2006 (3) 360). 4. The learned Single Judge has followed the decision reported in Thulaseedharan Nair v. state of Kerala (ILR 2006 (3) 360). In Thulaseedharan Nair’s case another learned single judge held: “The power to cancel the granted bail is available only to the High courts and the Courts of Session and the Parliament appears to have placed trust and faith that such superior Courts will be able to identify the valid reasons on which such an extraordinary harsh remedy of law can be granted. The Parliament has hence not chosen to enumerate and stipulate the circumstances under which such powers can or cannot invoked. Normally and ordinarily interference with the due course of justice, hampering investigation, abusing freedom granted by the Court which granted bail, intimidation of witnesses etc. are the reasons urged for cancellation of bail. But by no stretch of imagination can it be held that the list is exhaustive. There must and can be other circumstances under which also an order for cancellation of bail can be allowed. It is left to the sound judicial discretion of the superior Courts- the Sessions Courts and the High Courts to decide in what cases an order of bail can be cancelled. It is unnecessary-nay it will be counter productive to attempt to enumerate exhaustively the circumstances under which bail already granted can be cancelled and need not be cancelled. A Court must be informed of all the circumstances. Myriad are the circumstances and facts which may arise in each case and no two cases can be said to be exactly identical. Therefore, the list of circumstances which are often referred to, it must be alertly noted, is not exhaustive and other circumstances can and may certainly be there. The facts dealt with in Thulaseedharan Nair’s case are different. That was a case in which the charge sheet against the accused was laid alleging Commission of certain bailable offences only. But, after further investigation some more accused were arrayed and the investigation disclosed the Commission of a non bailable offence also. Right to claim bail in bailable offences is absolute and indefeasible. It was in that particular context the learned Single Judge held in Thulaseedharan Nair’s case that the power to cancel the granted bail is available only to the High Court and to the Court of Sessions. Right to claim bail in bailable offences is absolute and indefeasible. It was in that particular context the learned Single Judge held in Thulaseedharan Nair’s case that the power to cancel the granted bail is available only to the High Court and to the Court of Sessions. Hence Thulaseedharan Nair’s case is not applicable to a case where the power to cancel bail is to be considered u/s 437(5). 5. In Talab Haji Hussain v. Madukar Purushottam Mondkar AIR 1958 SC 376 it was held by the Hon’ble Supreme Court that the bail granted u/s 496 of the old code can be cancelled only by the High Court under its inherent power. Section 496 of the old code is identical to S.436 of the new Code which deals with the right of an accused involved in a bailable offence to be released on bail. Under the new Code S.439(2) provides for cancellation of bail granted under Chapter XXXIII which includes S.436 as well and so the Sessions Judge or the High Court can cancel the bail granted u/s 436 in an appropriate case. 6. S.439(2) Cr.P.C. deals with the power of the High Court and the Court of Sessions to direct arrest of any accused who was released on bail under Chapter XXXIII of Cr.P.C. S.439(2) reads. “A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.” S.437(5) of Cr.P.C. which deals with power of the Magistrate reads thus. “any Court which has released a person on bail under sub-section (1), or sub-section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody.” S.439 deals with the special powers of the High Court or Court of sessions regarding bail, S.437(1) Cr.P.C. deals with the power of the Magistrate to grant bail to an accused involved in a non-bailable offence. While S.439(2) Cr.P.C. deals with power of the High Court or Court of Sessions to order arrest of the accused who was granted bail under Chapter XXXIII which takes in S.436 also, Section 437(5) deals with the power of the Magistrate to cancel bail. 7. While S.439(2) Cr.P.C. deals with power of the High Court or Court of Sessions to order arrest of the accused who was granted bail under Chapter XXXIII which takes in S.436 also, Section 437(5) deals with the power of the Magistrate to cancel bail. 7. The learned Public Prosecutor would submit that though the expression “cancellation of bail” is not used in S.437(5) and S.439(2) Cr.P.C.; both those provisions 439(2) and 437(5) are identically worded. While the High Court and Court of Sessions can exercise power u/s 439(2) Cr.P.C, the exercise of a similar power by the Magistrate is dealt with in S.437(5). In other words, S.437(5) is almost identical to S.439(2). In both sections the word ‘cancellation of bail’ is not used. Even though the expression ‘cancel bail’ is not used in S.437(5) and S.439(2) Cr.P.C. when the Court considered it necessary to direct a person who had already been released on bail to be arrested so as to commit him to custody it presupposes that the order of bail granted earlier stood cancelled. In other words, the bail granted earlier must be deemed to have been cancelled. 8. It was held by the Apex Court in the decision reported in Gurcharan Singh v. State of Delhi Admn. (AIR 1978 SC 179). “The question of cancellation of bail under S.439(2) is certainly different from admission to bail under S.439(1). Under S.439(2) the High Court or the Court of Session may direct any person who has been released on bail to be arrested and committed to custody. Under Section 498(2) of the old Code, a person who had been admitted to bail by the High Court could be committed to custody only by the High Court. Similarly if a person was admitted to bail by a Court of Session, it was only the Court of Session that could commit him to custody. This restriction upon the power of entertainment of an application for committing a person, already admitted to bail, to custody, is lifted in the new Code under S.439(2). Under S.439(2) of the new Code a High Court may commit a person released on bail under Chapter XXXIII by any Court including the Court of Session to custody, if it thinks appropriate to do so.” 9. Under S.439(2) of the new Code a High Court may commit a person released on bail under Chapter XXXIII by any Court including the Court of Session to custody, if it thinks appropriate to do so.” 9. In the decision reported in Bashir v. State of Haryana (AIR 1978 SC 55) a question arose whether a person who was released under the proviso to S.167(2) could later be committed to custody merely because a charge sheet was subsequently filed. The Apex Court held that he could not be so committed to custody but the bail could be cancelled u/s 437(5) if the Court came to the conclusion that were sufficient grounds after the filing of the charge sheet to believe that the accused had committed a non bailable offence and that it was necessary to arrest and commit him to custody. 10. It was held in the decision cited supra that u/s 167(2) Cr.P.C. the person who has been released on the ground that he had been in custody for a period over 60 days is deemed to be released under the provisions of Chapter XXXIII. The ground for cancellation of bail were delineated in the aforesaid decision as. “The power of the Court to cancel bail if it considers it necessary is preserved in cases where a person has been released on bail under S.437(1) or (2) and these provisions are applicable to a person who has been released under S.167(2).” 11. In the decision reported in Delhi Admn. V. Sanjay Gandhi (AIR 1978 SC 961) also the power of the Court to cancel bail u/s 439(2) was considered. 12. In Raghubir Singh v. State of Bihar (AIR 1987 SC 149) it was held: “An order for release on bail made under the proviso to S.167(2) is not defeated by lapse of time, the filing of the charge-sheet or by remand to custody under S.309(2). The order for release on bail may however be cancelled under S.437(5) or S.439(2). Generally the grounds for cancellation of bail, broadly, are interference or attempt to interfere with the due course of administration of justice, or evasion or attempt to evade the course of justice, or abuse of the liberty granted to him.” 13. The order for release on bail may however be cancelled under S.437(5) or S.439(2). Generally the grounds for cancellation of bail, broadly, are interference or attempt to interfere with the due course of administration of justice, or evasion or attempt to evade the course of justice, or abuse of the liberty granted to him.” 13. It was also held in the decision cited above that the grounds for cancellation of bail u/s 437(5) and 439(2) are identical; namely, bail granted u/s 437(1) or (2) or 439(1) can be cancelled where the accused misuses his liberty by indulging in similar criminal activity, interferes with the course of investigation, attempts to tamper with evidence or witness etc. 14. In the decisions cited supra the Hon’ble Supreme Court has reiterated the grounds to be satisfied for cancellation of bail u/s 439(2). S.437(5) and S.439(2) are identically worded. The learned counsel appearing for the revision petitioner submits that the power u/s 439(2) Cr.P.C. can be exercised by the High Court or by the Court of Sessions while similar power u/s 437(5) can be exercised by the Magistrate and so in all respects the two provisions are almost identical. When a Magistrate decides to order arrest of the accused to commit him to custody it goes without saying that the bail already granted to the accused stands cancelled. 15. In the decision reported in Aslam Babalal Desai v. State of Maharashtra (AIR 1993 SC page 1) it was held, “since S.167 does not empower cancellation of the bail, the power to cancel the bail can only be traced to S.437(5) or 439(2) of the Code. The bail can then be cancelled on considerations which are valid for cancellation of bail granted under S.437(1) of (2) or 439(1) of the Code.” (underline to lay emphasis) 16. It was held in Kalyan Chandra Sarkar’s case (2004 (7) SCC 528) that the conditions laid down u/s 437(1)(i) Cr.P.C. are sine qua non for granting bail u/s 439 of Cr.P.C. The learned Public Prosecutor submits that it has been referred to here in support of his submission that while S.439(2) Cr.P.C. deals with power of the High Court and that of the Court of Sessions to cancel bail the same power is given to the Magistrate u/s 437 (5) Cr.P.C. 17. The learned Public Prosecutor and the learned counsel for petitioner, Sri G. Sreekumar (Chelur) have referred to the decision of the Hon’ble Supreme Court reported in Manjit Prakash v. Shobhadevi (2009 (13) SCC 785) where it was held: “Once the order of release is by fiction of law an order passed under Section 437(1) or (2) or Section 439(1) it follows as a natural consequence that the said order can be cancelled under Sub-section (5) of Section 437 or sub-section (2) of Section 439 on considerations relevant for cancellation of an order thereunder. As stated in Raghubir Singh v. State of Bihar the grounds for cancellation under Sections 437(5) and 439(2) are identical, namely, bail granted under Section 437(1) or (2) or Section 439(1) can be cancelled where (i) the accused misuses his liberty by indulging in similar criminal activity, (ii) interferes with the course of investigation, (iii) attempts to tamper with evidence or witnesses, (iv) threatens witnesses or indulges in similar activities which would hamper smooth investigation, (v) there is likelihood of his fleeing to another country, (vi) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency, (vii) attempts to place himself beyond the each of his surety, etc. 18. Both the provisions do not use the expression ‘cancel’ but deal with the power of the Court to order arrest of the accused and to commit him to custody. While S.439(2) has been regarded as the source of power enabling the Court of sessions and High Court to cancel the bail, S.437(5) has been regarded and understood as the source of power enabling the Magistrate to cancel the bail granted u/s 437(1) or 437(2). The decisions rendered by the Apex Court while dealing with the power of the Court of Sessions and of the High Court to cancel bail u/s 439(2) would therefore apply to cases dealing with the power of the Magistrate to cancel the bail u/s 437(5) Cr.P.C. 19. The decisions rendered by the Apex Court while dealing with the power of the Court of Sessions and of the High Court to cancel bail u/s 439(2) would therefore apply to cases dealing with the power of the Magistrate to cancel the bail u/s 437(5) Cr.P.C. 19. In the light of the decisions cited supra there is no doubt in our mind that the Magistrate who granted bail u/s 437(1) and (2) Cr.P.C. has the right to cancel the bail u/s 437(5) of the Cr.P.C. Section 437(5) is the source of power for the Magistrate to cancel the bail granted u/s 437(1) and (2) Cr.P.C. Therefore, we hold that the law laid down in Nassar’s case (Nassar v. State of Kerala (2009 (3) KLT 419) is not correct. The reference is answered accordingly. The Registry shall post the case before the concerned Bench for disposal.