Bapna, J. - (1.) THIS is a petition under Art. 226 of the Constitution.
(2.) THE petitioner Ismail has come to this Court on the allegation that his parents are Indian citizens and he himself was a citizen of India. He went away to Pakistan in February, 1955, in the company of some persons but came back under a passport on 25th July, 1955. It was alleged that he was prosecuted for staying in India beyond the limit prescribed in the visa, but acquitted, on the plea taken by him that he was an Indian citizen, by the City Magistrate by judgment of 31st October, 1956. He was thereafter called by the police on 11th May, 1957 and was told that he would be deported to Pakistan, as he was a foreigner. It is alleged that the petitioner told the Police Officer that be was citizen of India and even an application was presented on his behalf, but nevertheless the Police was adamant and was bent upon deporting him from India. It is stated that he obtained his release under orders of the City Magistrate under a supardnama executed by Fakruddin, but he apprehended that he may again be arrested and sent to Pakistan. He prayed for a writ of prohibition directing the Superintedent of Police and the State of Rajasthan not to deport him away from India. On behalf of the State a reply has been filed that Ismail had migrated to Pakistan without any travel document and became a Pakistani National. He came back to India on a Pakistani Passport and an Indian visa Category C issued by the Indian High Commissioner at Karachi. This visa is generally issued to citizens of Pakistan for temporary visit to India. The acquittal of the petitioner by the City Magistrate on 31stoctober, 1956, was under kharge of sec. 14 of the Foreigners Act, 1946, but it was urged that it need not operate so as to exempt the petitioner from being deported under orders of the Government under sec. 3, sub-sec. (2), clause (c) of the Foreigners Act, 1946. It was urged on behalf of the State that the application presented by the petitioner in Pakistan for a passport, described him as a citizen of Pakistan wanting to come to India temporarily to see his parents. Learned counsel for the petitioner relied on the case of Mohmmad Khan vs. Government of Andhra pradesh (1), and it was contended that the petitioner had raised this question of citizenship before the officer, and also by an application through advocate but it had not been decided by the Central Government as provided by Rule 30 (2) of the Citizenship Rule by reference to sec. 9 of the Citizenship Act, 1955. On behalf of the State it is urged that although the parents of Ismail were Indian citizens, Ismail had migrated to Pakistan and cannot be deemed to continue to be a citizen of India, vide Art. 7 of the Constitution, and therefore, no question of any decision now to be taken, remains to be decided. It was also urged that the petitioner described himself a citizen of Pakistan by making an application and no further enquiry was necessary. It is explained on behalf of the petitioner that he was born in 1938 at Kota. Several affidavits have been submitted in support of this plea, including those of his father, mother and the nurse, and his date of birth as entered in the application for passport is also shown as of year 1938. He had apparently not become a major when he went away to Pakistan and even when he came back to India in July, 1955. A minor's domicile of nationality is that of a father. We are aware of sec. 11 of the Pakistan Citizenship Act No. 2 of 1951, by which even a minor can be registered as a citizen of Pakistan on application by a parent or guardian of the minor. In the present it is conceded that the parents did not go to Pakistan. Whatever may be the situation, sec. 9 of the Citizenship Act lays down that if any question arises as to whether, when or how any person has acquired the citizenship of any other country, it should be determined by the prescribed authority according to certain rules. The authority prescribed by the Rules is the Central Government. The allegation that the petitioner raised this question before the Police officer, who arrested him is not admitted on behalf of the State. The application, which was presented appears to have been so made to the City Magistrate, and not to the Collector or to Superintendent of Police, who was concerned in the matter of deportation. The Andhra case (1) lays down that such question had to be determined by the Central Government before the orders for deportation should be carried out. With great respect we agree with the view of law taken in that case, but as the petitioner has not raised this question before a proper authority, we do not propose to interfere at this stage. It is upto the petitioner to raise the question of citizenship before the Collector, who represents the State, or before the Central Government. The petition at the present stage stands dismissed. . ;