An accused who is already in custody cannot seek anticipatory bail; they must apply for regular bail under Section 437 of the Cr.P.C.

ORDER

K.Natarajan, J.

This petition is filed by the petitioner-accused No.3 under Section 438 of Cr.P.C., for granting anticipatory bail in Crime No.137/2019 registered by Cubbon Park police station, Bengaluru and charge sheeted for the offences punishable under Sections 120B, 420, 149, 423, 465, 468, 471, 506 of IPC, now pending on the file of VIII ACMM, Bangalore in C.C. No.23541/2019.

2. Heard the arguments of learned counsel for the petitioner, learned Senior Counsel for the respondent No.2 and learned High Court Government Pleader for the respondent No.1/State.

3. The case of the prosecution is that, a private complaint was filed by the respondent No.2 in PCR No.9076/2019 before the Magistrate and got it referred to the police under Section 156(3) of Cr.P.C. In turn, the police registered FIR and investigated the matter and filed charge sheet. It is alleged by the complainant that he met accused No.1/Praveen Surendiran, an employee of M/s OPC Assets Solutions Private Limited, Mumbai. The accused No.2 was software developer. The complainant along with accused Nos.1 and 2 launched a software based manpower service and repair centre. Accused No.2 was co-founder of a company by name M/s Norte Technologies India Pvt. Ltd. ('NTI Pvt. Ltd.' for short). The complainant and accused No.2 were 50:50 shareholders and Directors of the company. The complainant also provided loan of Rs.2.5 lakhs to accused No.2. The accused No.1/Praveen Surendrian was helping the complainant and accused No.2 in marketing while working with a Mumbai based company, M/s.OPC Asset Solution Pvt. Ltd., Mumbai. Accused Nos.1 and 2 being close associates of accused no.3, who was working as Assistant General Manager-Finance, at Manipal Education and Manipal Group International Pvt. ltd., at Vittal Mallya Road, Bengaluru. They joined the hands at the office of MEMG, Vittal Mallya Road, Bengaluru. They hatched criminal conspiracy, forged the signature of complainant on certain documents, fabricated the documents to defraud the complainant. It is alleged that they created a false document in the name of complainant, as he had resigned from the post of Director and they said to be Board of Directors of the company. Thereby, they used forged documents as genuine as that of the respondent/ complainant who had resigned from the post. Accused Nos.1 to 5 appointed accused No.7-Nagaraju an Auditor. Accused No.6 was assisting the company for maintaining the books and by using the fake documents, the 50% share of the complainant has been transferred. The complainant had invested huge amount in the company. The complainant also refused to sign such document. Hence, he has demanded his share from the company, but they threatened him with dire consequences and other various allegations in the complaint for taking action for the offences punishable under Sections 420, 120B, 465, 468, 471, 506 of IPC. He has lodged the complaint to the police, as well as higher officers, they have not taken the complaint. Hence, he has approached the Magistrate by filing the complaint.

4. After registering the case, the investigation was under progress, the petitioner was said to be arrested and he was in jail in C.C.No.7559/2019. The police filed an application before the Magistrate in C.C No.23541/2019 for body warrant. Accordingly, the learned Magistrate issued the body warrant to the accused through jail authorities under Section 267 of Cr.P.C. The petitioner was produced in the present case on 02.08.2019 and on the request of the police, the petitioner was given police custody till 14.08.2019. Thereafter, he was produced back before the court and was remanded to judicial custody.

5. It is further contended, subsequently that the petitioner was granted bail by the Hon'ble Supreme Court in the earlier case in C.C No.7559/2019 and he was released on bail. Subsequently, he has moved a memo for recalling the body warrant before the Magistrate. Accordingly, the body warrant has been recalled and the p