1. Heard Mr. Tulpule with Mr. Mankapure the learned counsel for the petitioner.

2. Rule. Respondents waive service. Th petition has been finally heard.

3. The petitioner has challenged the order dated 12/10/2007 issued by the Government of Maharashtra through the Department of Law and Judiciary in exercise of its powers under Section 24(8) of the Code of Criminal Procedure, 1973 and by the said order the respondent no.7 has been appointed as "Special Public Prosecutor" for conducting Sessions Case No. 41 of 2006 pending before the Sessions Court at Islampur in Sangli District. By a subsequent order dated 18/12/2007 issued through the Department of Home, the State Government has fixed the professional fees and directed to be paid from the Government funds as under:-

(a) Per day appearance : Rs.15,000/-

(b) Consultation (for everyday) : Rs. 3,000/- (subject to maximum of Rs.15,000/-).

(c) Lodging and Boarding, per : Rs.3,500/- day.

4. The appointment has been challenged on various grounds and it has been mainly stated that the same is not in keeping with the scheme of Section 24 (8) of Cr.P.C. read with Rule 22 of the Rules for the Conduct of the Legal Affairs of Government, 1984 (for short the Rules of Legal Affairs) and the law laid down by the Supreme Court in the case of Mukul Dalal and ors. vs. Union of India and ors. [(1988) 3 SCC 144] as well as the decisions of this court in the case of Sushil Hiralal Chokhani & ors. vs. State of Maharashtra and ors. [2005(2) Bom. C.R.(Cri.) 654] and Omprakash Baheti and ors. vs. State of Maharashtra and ors. 3105] [2006 Cri. L.J. 3105]. The challenge is also on the ground that the impugned order suffers from non application of mind, unreasonableness and arbitrariness. It was also contended that the impugned order is perverse, illegal and not in public interest.

5. On behalf of the Department of Law and Judiciary, affidavit-in-reply has been filed by the Under Secretary in the said Department and on behalf of the Home Department, the Deputy Secretary has filed affidavit-in-reply. It is stated that the present respondent no.8 submitted an application on 28/3/2007 :4: to the Hon’ble Chief Minister with a request to appoint respondent no.7 as the Special Public Prosecutor in Sessions Case No. 41 of 2006. In the incident, giving rise to Sessions Case No. 41 of 2006, the applicant’s father Shri Dilip Sakharam Patil and brother Vikram Dilip Patil were killed in a brutal and broad day light murder in public place on 21/7/2006 and telephonic threats were being received by some of the eye-witnesses to the alleged incident of murder. In order to ensure that there be a fair conduct of the case, it was necessary to make the appointment of Special Public Prosecutor, the guide-lines set out in Rule 22 of the Rules of Legal Affairs were examined and the matter was also referred to the Home Department which, in turn, had called for the opinion of the District Superintendent of Police, Sangli and finally taking into consideration the material collected and after full application of mind to it by the Remembrancer of Legal Affairs (RLA), recommendation was made to the Government for appointment of respondent no.7 as Special Public Prosecutor. It is further claimed that the respondent no.4 has strictly followed the prescribed procedure and all the formalities for appointment of the Special Public Prosecutor.

6. Section 24(8) of the Code of Criminal Procedure states,

"The Central Government or the State Government may appoint, for the purposes of any case or class of cases, a person who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor."

. Rule 22, as originally framed in 1984 reads as under:-

"If in any case, civil or criminal, a request is made by any private party, interested in the case, for the appointment of its own