1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 2201 OF 2009 Sadashiv Pandurang Nikam ..Petitioner versus The State of Maharashtra & Anr. ..Respondents Mr. Dilip Bodake for Petitioner. Mr. P. S. Hingorani - APP for State. CORAM : B. R. GAVAI, J. DATED : APRIL 23, 2010. P.C. : 1. Rule, returnable forthwith. Learned APP waives service for the State. Heard by consent. 2. By way of present petition, the petitioner challenges the Order dated 9th July 2007 thereby rejecting the application filed by the present petitioner for removal of the attachment of the property. 3. The brother of the applicant deceased Krishnadeo @ Krishna @ Krishnat is facing criminal trial for the offence punishable under Section 306 of IPC vide Sessions Case No. 107 of 1989. The alleged incident 2 regarding the suicide of the wife of the deceased Krishnadeo has taken place in 1984. Since in the said proceedings the deceased Krishnadeo was not attending, the property came to be attached. It is the contention of the petitioner that the property is joint family property and due to the attachment of the said property he has not been able to deal with the property falling to his share. 4. The petitioner has accordingly made an application for removal of the attachment. In the meantime the petitioner had also filed proceedings for declaring his deceased brother as dead since he has not been heard for a period of more than seven years. The learned Jt. Civil Judge, Senior Division, Satara vide judgment and order dated 27th April, 2006 has declared that there is a civil death of Krishnat Pandurang Nikam. 5. The application of the present petitioner came to be rejected on the ground that the name of the person whose civil death is declared is Krishnat Pandurang Nikam whereas the name of the accused in the charge sheet is Krishnadeo Pandurang Nikam. 6. The petitioner has filed an affidavit in the proceedings before the learned Sessions Judge stating therein that accused is the same person in respect of whom the declaration of civil death has been given. It can be seen 3 that the name of the present petitioner’s father as well as the name of the father of the accused is “Pandurang Nikam”. 7. In any case I find that for non appearance of the accused, the property falling to the share of the petitioner could not have been attached. 8. In that view of the matter, the petition is allowed. The Order passed by the learned Ad-hoc District Judge -2 and Additional Sessions Judge, Sangli dated 9th July 2007 is quashed and set aside. The application of the present petitioner for removal of the attachment of the property is allowed to the extent of the share of the present petitioner. Rule is made absolute in the aforesaid terms. No order as to costs. (B. R. GAVAI, J.)