A. P. LAVANDE, J.

( 1 ) RULE. Respondents waive notice on Rule. Taken up for final hearing by consent of all the parties.

( 2 ) BY this petition, the petitioners challenge the order dated 4-9-2004 passed by respondent No. 1 by which Shri Avinash Gupta, Advocate, Nagpur, has been appointed as Special Public Prosecutor for conducting the Sessions trial and the incidental proceedings arising out of CR No. 204 of 2004 of Police station, Kotwali, Nagpur, before the Sessions Court, Nagpur. The petitioners have also sought incidental reliefs in the nature of investigation into the matter of appointment of Advocate Gupta as Special Public Prosecutor by the impugned order dated 4-9-2004.

( 3 ) WE have heard Mr. Madkholkar, learned counsel for the petitioners, Mr. Loney, learned Additional Public Prosecutor for respondents Nos. 1 and 2 and mr. Shashank Manohar, learned counsel for respondent No. 3.

( 4 ) BRIEFLY, the facts leading to filing of the present petition, are as follows :- the petitioners along with one Mahesh Baheti are accused in Sessions trial No. 464/2005 which is pending before 6th Ad hoc Additional Sessions judge, Nagpur. The charge-sheet was filed under sections 304-B and 498-A of the Indian Penal Code read with sections 3 and 4 of Dowry Prohibition Act against the petitioners and said Mahesh, pursuant to F. I. R. filed by respondent no. 3 who is the father of deceased Rekha, the wife of Mahesh, at Police Station, kotwali, Nagpur, which was registered on 10-8-2004.

( 5 ) THE main challenge in the present petition is to the appointment of advocate Avinash Gupta as Special Public Prosecutor for conducting Sessions trial and incidental proceedings arising out of Crime No. 204/2004. In para 7 of the petition, the petitioners have averred that the impugned order has been passed despite the judgment of the Supreme Court and despite the specific directions to modify the said Rules and the said Rules were never modified and in gross contempt of the orders of the Supreme Court by following Rule 22 and in a pure mechanical fashion the Special Public Prosecutors are being appointed at the whims and fancies of private complainants.

( 6 ) MR. Madkholkar, learned counsel appearing for the petitioners submitted that the impugned order has been passed in clear violation and contrary to the observations and directions given by the Apex Court in the case of Mukul Dalai and others vs. Union of India and others, (1988)3 SCC 144, and therefore, the impugned order deserves to be quashed and set aside. He further submitted that in view of the fact that Advocate Avinash Gupta had appeared on behalf of the complainant even before his appointment as Special Public Prosecutor by the impugned order the appointment of Mr. Gupta as Special Pubic Prosecutor is vitiated. He further submitted that the Public Prosecutor is expected to discharge his duties fairly and ensure a fair trial to the accused. Therefore, in view of the fact that Advocate Gupta had already appeared for the complainant prior to his appointment as Special Public Prosecutor, the petitioners would not get fair trial in the event Advocate Gupta is permitted to conduct the matter as Special Public prosecutor. Learned counsel relied upon the judgment of the Apex Court reported in (1999)7 SCC 467, Shiv Kumar vs. Hukam Chand and another. He further submitted that having regard to the impugned Notification, it appears that the state Government had already come to the conclusion that the F. I. R. lodged by the complainant would result in filing of charge-sheet and thereafter in a trial before the Sessions Court which could not have been anticipated by the government since mere filing of the F. I. R. may not ultimately result in filing of charge-sheet and committal of the case to Sessions Court. According to learned counsel, the appointment of Advocate Gupta appears to be at the behest of the complainant and without following the Rules. Learned counsel further submitted that respond