Case Reference/File No [1985] 2 SriLR 341
Case Name Peter Leo Fernando v. The Attorney-General and two others
Court Supreme Court
Date of judgement 11th July 1985
Judges Colin-Thome J
Ranasinghe J
Atukorale J
Tambaiah J
L.H. De Alwis J
Parties Petitioner
Peter Leo Fernando


1st respondent – The Attorney-General
2nd respondent – The Magistrate of Attanagalle
3rd respondent – W.P. Karunadasa, The Prisons Officer
Keywords Fundamental rights guaranteed under Articles 11,13,14,17 and 126 of the Constitution – Article 4 of the Constitution – violation by a judge – does it amount to infringement by executive or administrative action
Head note  
Brief facts Talgaha Kumbure Banda had instituted section 66 proceedings relating to Bebilapitiyawatte Estate against Dr F. Ranil Senanayake. The inquiry to the case was to be held on 26.2.1985 when the petitioner who was not a party nor witness of the case was seated in the well of the Magistrate’s Court, Attanagalla. On an allegation by the lawyer appearing for one of the parties of the case that the petitioner intimidated his client’s wife, the Magistrate of Attanagalla, 2nd respondent ordered the Mirigama police to fetch the petitioner and without intimating the charge or being given a chance to answer such charge the petitioner “was just marched and flung into the cell” and was locked up among criminals for several hours. The 2nd respondent averred that on 26.2.1985 Mr. Wijaya Gunaratne, an Attorney-at-Law, who appeared for the plaintiff complained to Court that at about 8.30 pm on 21.2.1985 a person called Leo committed criminal trespass and threatened to open fire with the shot gun he had. It is the 2nd respondent’s version that the decision to detain the petitioner was in the exercise of judicial authority and therefore it was a judicial act done in good faith. The 3rd respondent averred that at all times he was attached to the Mahara Prison as a Jail Guard and never held the post of Fiscal, Gampaha, Western Province. The court examined the submission of the 2nd respondent that an offence had been committed within the territorial jurisdiction of the Magistrate’s Court in Attanagalla in terms of sections 136, 138(2), 139, 141, 142(2), 182 of the Code of Criminal Procedure Act, No.15 of 1979 and held that the Magistrate had misinterpreted the procedure laid down in section 136, 139 and 142 of the Code of Criminal Procedure Act. The main question to be answered was whether the 2nd respondent’s action of ordering the petitioner to be detained comes under “executive or administrative action” within the purview of Articles 17 and 126 of the Constitution. Considering the relevant law and the apt case law, the court held that the detention of the petitioner by the 2nd respondent was neither an executive nor an administrative action.
Judicial Precedence The court held that the judges of both inferior and superior courts of law enjoy special immunity from actions in tort and such immunity under the Roman-Dutch law is equivalent. However, the Court held that in Sri Lanka the matter of a judge from actions in tort or delict is governed by the common law. The  Court viewed a fundamental reason for excluding judicial action from review under the procedure provided in Article 126 of the Constitution. The Court applied the function and control test to the 2nd respondent’s actions and held that a judicial order does not become converted to an administrative or executive action merely because it is unlawful. The Court was also of the view that the State is not liable for actions of the judicial officers in discharging their functions and an officer of the State who carries out an order of such judicial officer is also not liable for carrying out such order in good faith.
Legislation Title The Constitution of the Democratic Socialist Republic of Sri Lanka 1978, Code of Criminal Procedure Act, No.15 of 1979, Crown (Liability in Delict) Act, No.22 of 1969
Area Article 4,11,13,14,17 and 126 of the Constitution; Sections 136,139 and 142 of the Code of Criminal Procedure Act, No.15 of 1979; Section 70 of the Penal Code; Section 2(5) of Crown (Liability in Delict) Act, No.22 of 1969