S. K. GUIN, J. ( 1 ) THIS revisional petition is directed against the order passed by the learned Additional Sessions Judge, 1st Court, Nadir on 31. 8. 84 in Criminal Motion No. 34 of 1984 whereby he set aside the order passed by learned Executive Magistrate on 10. 4. 84 in MP No. 279 of 80 which was a proceeding under section 133 of the Code of Criminal Procedure. ( 2 ) THE 1st party Bhajan Kumar Biswas for self and on behalf of others filed a petition under section 133 of the Code of Criminal Procedure before the learned Executive Magistrate, Krishnanagar, Nadia alleging that there was a public pathway passing through plots no. 1165, 1181, 1180, 1179, 1173, 1183, 1182, 1163 and 1164 of Mouza Raninagar connecting the main road on the north in plot no. 755 and the road on the south in plot no. 760, that on 3. 11. 80 the members of the 2nd party blocked the said pathway in between plots no. 1178 and 1183 by erecting brick wall thereby causing inconvenience to the public in general and the residents of that Locality in particular. On receipt of such petition, learned Executive Magistrate directed the Officer-in-Charge, Tehatta P. S. to enquire and report. On receipt of the report from the said Officer-in-Charge, learned Executive Magistrate by his order dated 27. 1. 81 drew up a proceeding under section 133 of the Code of Criminal Procedure against the members of the 2nd party asking them to show cause as to why they should not be ordered to remove the obstruction created by them on the said pathway and they were asked to show cause by 27. 2. 81. The members of the 2nd party appeared before the learned Executive Magistrate and subsequently filed a petition showing cause denying the existence of the said public pathway. Thereafter learned Executive Magistrate, to whom the case was transferred for disposal, directed JLRO, Tehatta to enquire and report and he axed 21. 5. 82 for enquiry report. On receipt of report from the said JLRO, learned Executive Magistrate fixed 24 2 83 for evidence by the 2nd party. However, by his order dated 13 6 83 he fixed 27. 7. 83 for evidence of the both parties and for judgment. Thereafter he examined four witnesses for the 1st party and none for the 2nd party. On receipt of report from the said JLRO, learned Executive Magistrate fixed 24 2 83 for evidence by the 2nd party. However, by his order dated 13 6 83 he fixed 27. 7. 83 for evidence of the both parties and for judgment. Thereafter he examined four witnesses for the 1st party and none for the 2nd party. By his order dated 10. 4. 84, he passed the order under section 133 directing the members of the 2nd party to remove the obstruction from the plots no. 1178 and 1183 and to make the road clear for free movement of the public within one month. ( 3 ) BEING aggrieved by such order of the learned Executive Magistrate, the members of the 2nd party filed a Criminal Motion being Motion no. 34 of 1984 before the learned Sessions Judge, Nadia challenging the legality and propriety of the said order. The learned Addl. Sessions Judge who heard the said Criminal Motion, allowed the same and set aside the order passed by the learned Executive Magistrate with the findings that learned Executive Magistrate did not properly follow the procedure laid down under section 133 and 137 of the Code of Criminal Procedure, that he ought to have considered whether the way which was claimed by the 1st party could be lawfully used by the public and that evidence adduced was not sufficient for coming to a conclusion that there was any pathway which could not lawfully used by the public. ( 4 ) BEING aggrieved by the said order of the learned Addl. Sessions Judge, the 1st party has filed the instant revisional petition challenging the legality and propriety of the same Mr. Shekhar Kumar Basu, learned advocate for the petitioner has argued that since there was no conditional order under section 133 of the Code of Criminal Procedure, the provisions of section137 of the said Code were not applicable to the instant case and that learned Executive Magistrate rightly held the enquiry under section 138 of the said Code and passed the order accordingly. He has also argued that learned Addl. Sessions Judge sitting in revision should not have reassessed the evidence as adduced before the learned Executive Magistrate and should not have entered into question of facts which was decided by the learned Executive Magistrate on the basis of evidence as adduced before him. ( 5 ) MR. He has also argued that learned Addl. Sessions Judge sitting in revision should not have reassessed the evidence as adduced before the learned Executive Magistrate and should not have entered into question of facts which was decided by the learned Executive Magistrate on the basis of evidence as adduced before him. ( 5 ) MR. N. N. Adhikari, learned advocate appearing for the 2nd party opposite party has argued that when the existence of the public right had been denied by the 2nd party, the provisions of section 137 were at once attracted to the present case and that learned Executive Magistrate should not have entered into an enquiry under section 138 without complying with the provisions of section 137 and that learned Additional Sessions Judge was quite justified in setting aside the order passed by the learned Executive Magistrate. Mr. S. Bhattacharyya, learned advocate appearing for the State has also argued that since the provisions of section 137 were not complied with, learned Addl. Sessions Judge was quite justifying in setting aside the order impugned before him. ( 6 ) UNDER section 133 of the Code of Criminal Procedure the learned Executive Magistrate may make a conditional order requiring the members of the 2nd party to remove the unlawful obstruction from the pathway which is or may be lawfully used by the public or he may not make any such conditional order. In the instant ease the learned Executive Magistrate did not make any conditional order as contemplated in section 133 of the said Code. On receipt of enquiry report from the Police Officer, the learned Executive Magistrate by his order dated 27. 1. 81 drew up a proceeding under section 133 of the said Code against the members of the 2nd party asking them to show cause as to why they should not be ordered to remove the obstruction created by them on the pathway in question and the members of the 2nd party were asked to show cause by 27. 2. 81. That is very much an order made by the learned Executive Magistrate under section 133 for the purpose of removing obstruction to the public in the use of the pathway in question. 2. 81. That is very much an order made by the learned Executive Magistrate under section 133 for the purpose of removing obstruction to the public in the use of the pathway in question. Once such an order is made and the members of the 2nd part appear before the learned Executive Magistrate in obedience to such an order, the provisions of section 137 of the said Code at once come into play. In that event, the learned Executive Magistrate is required to question the members of the 2nd party as to whether they deny the existence of the alleged public right in respect of the pathway, before he can proceed under section 138 of the said Code. If the members of the 2nd party deny the existence of any such public right, then the learned Executive Magistrate is required to record the evidence to be adduced in support of such denial. If he finds that there is any reliable evidence in support of such denial, he shall have to stay the proceeding until the matter of the existence of such right is decided by a competent Civil Court. If on the other hand, he finds there is no such evidence then he can proceed to enquire in accordance with the provisions of section 138 of the said Code. In the instant case after the members of the 2nd party had appeared before the learned Executive Magistrate in obedience to the notice to show cause issued against them, the learned Executive Magistrate did not put any question to them as required under section 137 of the said Code as to whether they denied the existence of the alleged public right. However, subsequently they filed a petition showing cause and denying the existence of the alleged public right. Though the learned Executive Magistrate fixed 24. 2. 83 for evidence by the 2nd party, but he did not record any evidence of the 2nd party on the day. On some subsequent dates he 'examined the witnesses for the 1st party and on consideration of their evidence passed the order which was impugned before the learned Addl. Sessions Judge in the Criminal Motion. 2. 83 for evidence by the 2nd party, but he did not record any evidence of the 2nd party on the day. On some subsequent dates he 'examined the witnesses for the 1st party and on consideration of their evidence passed the order which was impugned before the learned Addl. Sessions Judge in the Criminal Motion. Thus it is clear that though the members of the 2nd party appeared before the learned Executive Magistrate in obedience to an order made by the learned Executive Magistrate under section 133, but the learned Magistrate did not put any question to them as to whether they denied the existence of the alleged right. Nor he did record any evidence in support of any such denial. On the other hand he in a straightway entered into an enquiry under section 138 and passed the order directing removal of the obstruction. The provisions of section 137 are mandatory particularly when the members of the 2nd party appeared before the learned Executive Magistrate in pursuance of an order made under section 33. The learned Magistrate appears to have skipped over the provisions of section 137 and jumped into an enquiry under section 138. In doing so he acted illegally and his order made under section 138 suffers from illegality and cannot be allowed to stand. The learned Addl. Sessions Judge has, therefore, rightly observed that the learned Executive Magistrate did not properly follow the procedure as laid down under sections 133 and 137 of the Cr. P. C. and has, therefore, rightly set aside the order impugned before him. ( 7 ) IT is true that a court sitting in revision should not reassess the evidence and arrive at a fresh finding of facts based on such reassessment of evidence. In the instant case the learned Executive Magistrate failed to record his finding on one of the pertinent points to be considered in such proceeding. In the proceeding like one before the learned Executive Magistrate, he was to consider whether any pathway as alleged existed, whether such pathway is or may be lawfully used by the public and whether the members of the 2nd party unlawfully obstructed the said pathway. The learned Executive Magistrate in his order has found that there was a pathway as claimed members of the 1st party and that the members of the 2nd party obstructed the said pathway. The learned Executive Magistrate in his order has found that there was a pathway as claimed members of the 1st party and that the members of the 2nd party obstructed the said pathway. But he has not recorded his finding as to whether the said pathway is or may be lawfully used by the public. The learned Addl. Sessions Judge has, therefore, rightly observed that the learned Magistrate ought to have considered whether that way which was claimed by the 1st party could be lawfully used by the public. As the learned Executive Magistrate did not consider this aspect of this case, the learned Addl. Sessions Judge on perusal of evidence on record observed that the said evidence was not sufficient for coming to a conclusion that there was any pathway which could be lawfully used by the public. In doing so, he does not appear to have committed any impropriety or illegality. ( 8 ) THAT apart the order as made by the learned Executive Magistrate under section 138 suffers from a serious infirmity. In the petition under section 133 the 1st party did not disclose the extent of the pathway or the extent of the obstruction alleged to have been made by the members of the 2nd party on the said pathway. According to 1st party the alleged pathway runs through the plots no. 1178 and 1183 of Mouza Raninagar. It may be mentioned here that both the above mentioned plots belong to the members of the 2nd party. So description of the alleged pathway is rather vague and in definite and the said petition does not mention upto what extent the said pathway had been obstructed. The order as made by the learned Executive Magistrate also does not indicate the extent of the said pathway or the extent of the obstruction, which was ordered by him to be removed. So the impugned order in that respect is vague, indefinite and cannot be executed. No Court should pass an order, which is vague and cannot be executed. For this reason also, the order as, made by the learned Executive Magistrate cannot be allowed to stand. ( 9 ) FOR the reasons as given above I hold that learned Addl. So the impugned order in that respect is vague, indefinite and cannot be executed. No Court should pass an order, which is vague and cannot be executed. For this reason also, the order as, made by the learned Executive Magistrate cannot be allowed to stand. ( 9 ) FOR the reasons as given above I hold that learned Addl. Sessions Judge was quite justified in setting aside the order as made by learned Executive Magistrate and I see no reason to interfere with the order as passed by the learned Addl. Sessions Judge. ( 10 ) IN the result, this revisional petition is dismissed. Rule is discharged. Let a copy of this order together with the case record be sent down to the Court concerned as expeditiously as possible. Petition dismissed