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). 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